Labour Relations

LabourRelations PH SERIES IN HUMAN RESOURCES MANAGEMENT THIRD EDITION LARRY SUFFIELD ANDREW TFMPLER, SFR!ES EDITOR Table of Contents « Back to eTextbook Copyright, ii Foreword, x Preface, xiii Acknowledgments, xvi About the Author, xvi Chapter 1. Introduction to Labour Relations, 1 Defining Labour Relations and Industrial Relations, 2 Labour Relations Issue 1-1 Labour Relations Questions, 3 Importance of Unionization and Labour Relations, 4 Employment Relationship, 5 Key Considerations 1-1 Non-union vs. Unionized Workplaces, 5 Unionized Employees: Terms and Conditions of Work, 7 Employers: Costs and Productivity, 7 Non-union Employees, 7 A Framework for Labour Relations, 9 Confrontation or Collaboration, 13 Overview of Th is Book, 14 Chapter 2. The Environment, 17 Economic Environment, 18 Macroeconomic Environment, 19 Government Economic Policy, 20 Industry- and Firm-Level Demand, 21 Economic Trends and Issues Affecting Labour Relations, 22 Technology, 26 Social Environment, 27 Labour Relations Issue 2-1 Are Some News Media Slanted Against Unions?, 28 Labour Relations Issue 2-2 What are Your Values and Beliefs Relating to Unions?, 28 Political Environment, 29 Divided Jurisdiction, 29 Legal Environment, 30 Human Rights Legislation, 31 Key Considerations 2-1 Possible Measures to Accommodate , 34 Key Considerations 2-2 Factors Determining Undue Hardship, 35 Labour Relations Issue 2-3 When Is a Discriminatory Requirement a BFOR?, 37 The Canadian Charter of Rights and Freedoms, 38 Chapter 3. Unions: Objectives, Processes, Structure, and History, 47 Unions in Canada, 48 Extent of Unionization, 48 Types of Unions, 53 Union Objectives and Processes, 53 Improving Terms and Conditions of Work, 54 Protecting Employees Against Arbitrary Management Action , 54 Providing a Process for Conflict Resolution and Employee Input, 54 Pursuing Economic and Social Change, 55 Union Structure and Functions, 55 Local Union, 55 Key Considerations 3-1 Functions of a Local Union, 57 Independent Local Unions, 57 National and International Unions, 57 Labour Relations Issue 3-1 Should Unions Be Able to Impose Fines?, 59 Key Considerations 3-2 Functions of National and International Unions, 60 Labour Relations Issue 3-2 The Relationship Between a National Union, Local Union, and Union Members, 61 Labour Congresses and Federations , 62 Key Considerations 3-3 Functions of the Canadian Labour Congress, 63 Labour Councils, 64 Key Features of Union Structure, 64 The Development of Unions and Labour Relations, 65 Key Considerations 3-4 Events in the Development of Labour Relations, 66 Early Unions, 67 Entry of International Unions and Development of Labour Federations. 68 Industrial Unions. 69 Public Sector Unionization, 71 Unions and Politics. 71 Implications for Present-Day Labour Relations. 74 Chapter 4. Employers: Objectives, Processes, and Strategy, 79 Management Objectives and Processes, 81 Efficiency or Productivity, 81 Control, 83 Employer Labour Relations Strategy, 84 Factors Affecting an Employer's Labour Relations Strategy, 84 Possible Employer Strategies. 86 Strategies of Canadian Employers. 87 Importance of Labour Relations Strategy, 87 Alternative HR Strategies or Approaches to HR Management, 88 High-Performance Work Systems, 88 Key Considerations 4-1 Policies and Practices for a High-Performance Work System, 89 Chapter 5. Governments, Labour Relations Boards, and Other Parties, 93 Government Objectives and Processes, 94 Regulation of Labour Relations Processes, 95 Regulation of Labour Relations Outcomes , 96 Protection of the Public Interest, 96 Regulation of the Economy. 97 Assistance to Industry, 97 Regulating Market Practices and Results. 97 Government Employers : Objectives, 99 Maintaining Office, 100 Labour Relations Boards, 100 Composition of Labour Relations Boards, 100 Board Responsibil ities, 101 Key Considerations 5-1 Labour Relations Board Responsibilities. 101 Procedure and Remedies, 102 Other Parties, 102 Arbitrators, 102 Courts, 102 Chapter 6. Collective Bargaining Rights, 105 The Unionization Decision, 106 Why Employees Unionize, 107 Why Employees Do Not Join a Union, 110 How Bargaining Rights Are Obtained and Their Significance, 111 Certification of a Union, 112 Organizing Campaign, 112 Application for Certification to Labour Relations Board, 113 Framework of Fairness: An Alternative Approach to Obtaining Bargaining Rights, 126 Conduct During Organizing and Certification Process, 128 Employer Unfair Labour Practices, 129 Key Considerations 6-1 Employer Unfair Labour Practices, 129 Permissible Employer Conduct, 131 Key Considerations 6-2 Permitted Employer Conduct During an Organizing Campaign, 131 Labour Relations Issue 6-1 What Employers Have Said in Response to a Union Organizing Campaign, 132 Union Unfair Labour Practices. 133 Remedies for Unfair Labour Practices. 133 Labour Relations Issue 6-2 Should Certification Without a Vote Be Available as a Remedy for Unfair Labour Practices?, 136 Decertification, 136 Decertification Application by Employees , 137 Certification of a Different Union, 140 Additional Grounds for Decertification, 140 Successor Rights, 141 Appendix to Chapter 6 Collective Bargaining Rights Appendices, 148 Chapter 7. The Collective Agreement, 164 Importance of Collective Agreements. 165 Legal Requirements for Collective Agreements, 166 Mandatory and Voluntary Terms, 166 Collective Agreement Terms, 166 Recognition, 167 Key Considerations 7-1 Recognition Article, 167 Grievance and Arbitration Procedure, 168 Labour Relations Issue 7-1 Can the Collective Agreement Prevent Probationary Employees from Challenging Dismissal?, 171 Key Considerations 7-2 Grievance and Arbitration Procedure, 173 Bargaining Unit Work, 173 Key Considerations 7-3 Protection of Bargaining Unit Work, 174 Strikes and Lockouts, 174 Duration or Term of the Agreement, 174 Union Security, 175 Key Considerations 7-4 Union Security, 177 Management Rights, 177 Labour Relations Issue 7-2 Does Management Have to Act Reasonably?, 179 Contracting Out, 179 Key Considerations 7-5 Contracting Out, 180 Discipline and Discharge, 180 Key Considerations 7-6 Discipline and Discharge, 181 Discrimination, 181 Seniority: Establishment and Termination, 182 Key Considerations 7-7 Seniority Definition, Establishment, and Termination, 183 Seniority: Application to Layoffs, Recalls, and Job Vacancies. 184 Labour Relations Issue 7-3 Can the Collective Agreement Deny Seniority and Benefits to Disabled Employees?, 185 Key Considerations 7-8 Seniority Application to Layoffs, Recalls, and Job Vacancies, 185 Health and Safety, 187 Key Considerations 7-9 Health and Safety, 188 Wages, 188 Holidays and Holiday Pay. 189 Key Considerations 7-10 Holidays and Holiday Pay, 189 Vacations. 190 Key Considerations 7-11 Vacations, 190 Benefits, 190 Key Considerations 7-12 Benefits, 190 Hours of Work and Scheduling, 192 Key Considerations 7-13 Hours of Work and Scheduling, 192 Overtime, 192 Key Considerations 7-14 Overtime, 193 Technological Change, 193 Key Considerations 7-15 Technological Change, 194 Leave, 194 Key Considerations 7-16 Leave, 195 Union Business, 196 Key Considerations 7-17 Union Business. 196 Other Possible Terms. 199 Chapter 8. Negotiation of the Collective Agreement, 205 Bargaining Structure, 206 Possible Bargaining Structures, 207 Centralized vs. Decentralized Bargaining, 207 Informal Bargaining Structure, 209 Sub-processes in Negotiation, 209 Distributive Bargaining, 209 Integrative Bargaining, 209 Attitudinal Structuring: Shaping the Parties' Attitudes and Relationship, 210 Intraorganizational Bargaining, 21 0 Implications of Sub-processes in Negotiation, 21 1 Union-Management Relationship, 21 1 Types of Union- Management Relationships, 211 Factors Determining the Union- Management Relationship, 212 Negotiation Process, 21 3 Notice to Bargain, 213 Bargaining Teams, 214 Preparations for Negotiation, 214 Meetings of the Bargaining Teams, 21 5 Duty to Bargain in Good Faith , 21 6 First Contract Arbitration, 21 9 Strategies and Tactics in Distributive Bargaining, 220 Bargaining Power, 223 Labour Relations Issue 8-1 Should Labour Relations Legislation Prohibit the Use of Replacement Workers During a Strike?, 226 Conciliation and Mediation, 226 Memorandum of Settlement and Ratification, 226 Framework of Fairness: An Alternative Approach to Negotiation, 227 Interest-Based or Mutual Gains Bargaining, 227 Principles for Interest-Based Bargaining from Getting to Yes, 228 Interest-Based Bargaining: An Illustration, 229 Adoption of Interest-Based Bargaining, 230 Chapter 9. Administration of the Collective Agreement, 235 Labour Relations Issue 9-1 Can Unionized Employees and Employers Sue?, 237 Significance of the Grievance and Arbitration Process, 237 Functions of Grievances and Arbitration , 237 Benefits of Grievances and Arbitration, 239 Potential Employer Concerns Regarding the Grievance Process, 240 Grievance Procedure, 240 Informal Issue Resolution, 240 Ownership of the Grievance, 241 Procedural Matters , 241 Settlement Agreements, 242 Arbitration, 242 Rights vs. Interest Arbitration, 242 Arbitrators, 243 The Arbitration Hearing, 243 Arbitration Decisions, 244 Arbitrability, 245 Labour Relations Issue 9-2 When Is a Dispute Arbitrable?, 245 Cost of Arbitration, 245 Remedies, 246 Review of Arbitration Decisions, 246 Framework of Fairness: An Alternative Approach to Contract Administration, 247 Management Rights, 248 Limitations on the Exercise of Management Rights, 248 Labour Relations Issue 9-3 Should Random Drug Testing be Allowed?, 250 Discipline and Discharge, 251 Possible Grounds for Discipline or Discharge, 251 Procedural Matters, 252 Possible Discipline, 253 Arbitration Issues and Outcomes, 253 Labour Relations Issue 9-4 Is Surreptitious Videotape Admissible as Evidence?, 254 Key Considerations 9-1 Factors Arbitrators Consider When Reviewing Discipline Imposed by the Employer, 255 Last Chance Agreements, 256 Implications for Employers and Unions, 256 Key Considerations 9-2 Considerations for Employers When Imposing Discipline, 257 Key Considerations 9-3 Considerations for Unions Responding to Discipline, 257 Seniority, 257 Accumulation and Termination of Seniority, 257 Job Posting and Selection Process, 258 Layoffs,258 Recalls, 259 Assessing Skill and Ability, 259 Key Considerations 9-4 Ways to Increase the Validity and Fairness of Employment Interviews, 260 Remedies at Arbitration, 260 Human Rights Issues in the Administration of the Agreement, 260 Employer and Union Obligations, 261 Employee Obligations, 263 Non-Disciplinary Measures for Innocent Absenteeism, 263 Culpable vs. Innocent Absenteeism, 263 Non-Disciplinary Discharge, 264 Responses Other Than Discharge, 264 Duty of Fair Representation, 264 Nature of the Union's Duty of Fair Representation, 264 Implications for Employers and Unions, 266 Problems with Arbitration, 266 Expedited Arbitration, 266 Grievance Mediation, 267 Chapter 10. Contract Dispute Resolution, Strikes, and Lockouts, 275 Contract Dispute Resolution, 276 Key Considerations 10-1 Contract Dispute Resolution Policy Issues, 277 Types of Third-Party Assistance, 277 Other Dispute Resolution Methods, 281 Use of Third-Party Assistance and Back-to-Work Legislation, 282 Strikes and Lockouts, 282 Strikes and Lockouts Defined, 282 Significance of Strikes, 283 Labour Relations Issue 10-1 What Are the Effects of Strikes and Lockouts?, 284 Functions of Strikes, 284 Factors Affecting Strikes, 284 When Can the Parties Strike or Lockout?, 287 Labour Relations Issue 10-2 Should a "Hot Cargo" Clause Be Enforceable?, 288 Strike Activity and the End of a Strike, 290 Extent of Strike Activity, 291 Appendix Chapter 10 Third-Party Assistance in Contract Disputes, 297 Chapter 11. Public Sector Labour Relations, 307 The Public Sector: Size and Importance, 308 Definition of the Public Sector, 308 Scope of the Public Sector, 308 Importance of the Public Sector, 309 Development of Collective Bargaining in the Public Sector, 309 Why Public Sector Employees were not Allowed to Unionize, 309 Employee Associations, 31 0 Collective Bargaining Rights Extended to the Public Sector, 310 Labour Relations Issue 11-1 Should Teachers Be Allowed to Strike?, 310 Distinctive Features of Public Sector Labour Relations, 311 Employers, 311 Employees and Unions, 312 Legislative Framework, 312 Establishment of Bargaining Rights, 312 Scope of Contract Negotiation, 313 Contract Dispute Resolution, 313 Labour Relations Issue 11-2 Should a Rejected Memorandum of Settlement be Admissible in Arbitration?, 314 Key Considerations 11-1 Advantages and Disadvantages of Alternative Contract Dispute Resolution Mechanisms, 316 Recent Developments in Public Sector Labour Relations, 317 Economy, 317 Political and Social Environment, 318 Public Sector Compensation, 319 Chapter 12. Summary and Future of Labour Relations, 323 Effects of Unionization, 324 Compensation, 325 Productivity, 326 Profitability, 327 Investment, 327 Employment, 328 Employer Recruiting and Selection Practices, 328 Training, 328 Managerial Control and Decision Making, 329 Overview of Traditional Labour Relations , 329 Key Considerations 12-1 Features of Job Control Unionism, 329 Changing Labour Relations and Employee Involvement, 330 Forms of Employee Involvement, 330 Implications of Employee Involvement, 332 Employee Involvement Under the Collective Agreement, 332 Employee Involvement Outside of the Collective Agreement, 332 Key Considerations 12-2 Possible Union Views Regarding Employee Involvement, 333 Employer Freedom of Action and Union Reaction, 334 Outcomes of Employee Involvement, 335 Implementing an Employee Involvement Program, 335 Key Considerations 12-3 Barriers to Employee Involvement, 336 Future of Labour Relations, 337 Unions, 337 Confrontation or Collaboration?, 340 Appendix A. Cases, 345 Appendix B. Grievance and Arbitration , 358 Appendix C. Contract Negotiation Simulation, 360 Appendix D. Canadian Council of Human Resources Associations' Required Professional Capabilities, 373 Endnotes, 375 Index, 382 Library and Archives Canada Cataloguing in Publication Suffield, Larry, 1949Labour relations/La rry Suffield.-3rd ed. (PH series in human resources management) Includes index. ISBN 978-0-13-262632-3 1. Industrial relations-Canada-Textbooks. 2. Industrial relations-Textbooks. I. Title. II. Series: PH series in human resources management HD8106.5.S83 2011 331 C2010-908026-2 Copyright© 2012, 2008, 2005 Pearson Canada Inc., Toronto, Ontario. Pearson Prentice Hall. All rights reserved. This publication is protected by copyright and permission should be obtained from the publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission in any form or by any means, electronic, mechanical, photocopying, recording, or likewise. For information regarding permission, write to the Permissions Department. ISBN: 978-0-13-262632-3 Vice-President, Editorial Director: Gary Bennett Editor-in-Chief: Nicole Lukach Executive Marketing Manager: Cas Shields Developmelltal Editor: Rema Celio Production Editor: Patricia Ciardullo and Renata Butera (Central Publishing) Copy Editor: Seilesh Singh Proofreader: Barnali Jha Project Manager: Munesh Kumar, Aprara®, Inc. Compositor: Aprara®, Inc. Art Director: Julia Hall Cover Designer: Anthony Leung Interior Designer: Anthony Leung Cover Image: ShutterStock For permission to reproduce copyrighted material, the publisher gratefully acknowledges the copyright holders listed throughout the text, which are considered an extension of this copyright page. Material in rhe case incidents Bentley School Board (p. 273), Coastal Forest Products (p. 296), and the Case Ottawa Hospital (p. 356) are reproduced from Labour Arbitration Cases with the permission of Canada Law Book, A Division of the Cartwright Group Ltd. (1 -800-263-3269, www.canadalawbook.ca). [1999] CIRB no. 9; 53 CLRBR (2nd) 256; and 99 CLLC 220-055, paragraph 44, pp. 21 and 22, htrp:l/www.cirb<cri.gdcollecrions/publicarionsl decisions/RD0009_b.pdf. Reproduced wirh rhe permission of the Minister of Public Works and Government Services Canada, 2007 . Sratisrics Canada information is used wirh rhe permission of Statistics Canada. Users are forbidden to copy the data and redisseminate them, in an original or modified form, for commercial purposes, wirhour permission from Statistics Canada. Information on the availability of rhe wide range of dara from Statistics Canada can be obtained from Srarisrics Canada's Regional Offices, its World Wide Web site at www.sratcan.gc.ca, and its roll-free access number 1-800-263-1136. Printed and bound in the United States. 12345 13 12 1110 09 PEARSON growth. monopolistic markets. Yesterday's reality was characterized by stability. increased opportunity. and are frustrated at the lack of application and current relevance of what they do take the time to read. As the importance of knowledge and its application to organizational innovations increases. registered nurses. the good news is that HR professionals are in a position. The ensuing years have served only to reinforce the predictions of increased globalization. a downturn that has served to reinforce the importance of the effective management of employees. as never before. to play a vital role in organization effectiveness. T he continued success of this book points not only to the fundamental excellence of the product. Despite many predictions of a decline in labour relations. The problem is the gap between promise and delivery. and professional engineers. the past three years point to the enduring value of the principles of sound labour relations that employers ignore at their peril. but also to the enduring importance of labour relations and human resources in a changing world. In my foreword to the first edition. If current initiatives on the part of the HRPA to develop a new public act in Ontario are successful. and predictable technology. Where is HRM today? Most of what constitutes the field of HRM is based on thinking developed through industrial management in the past decades. Students of HRM seeking the knowledge and application base necessary for achieving this designation and success in the profession will find the Pearson HR Series an essential element of this goal. Almost three quarters of HR professionals with less than 12 years experience reported that specialist education had played a highly significant role in their career progression. In the near future. who argued that where. and instability.2 The development of the HR field is also demonstrated in a growth in professional regulation and the increasing recognition of a national Certified H uman Resources Professional (CHRP) designation across Canada. I referred to a special "survey of the near future" carried out by the Economist in which it quoted the late Peter Drucker. most workers will no longer be fulltime employees. characterized by a mix of HR knowledge and applied professional competencies. the profession of HR M will be well on its way to gaining the same licensing stature afforded to chartered accountants. X . we have been used to measuring our success through making things. and many HRM texts still reflect this traditional world. The next society will be a knowledge society characterized by borderlessness. In the three years since the previous edition. It is not surprising that studies indicate most HR practitioners do not consult academic research. in the past. knowledge work. the basis for success in the next society is knowledge-what we know and how we use it. and less employment stability made by Drucker. Canada has been a part of the toughest global economic downturn since the Great Depression almost a century ago. A hopeful sign is that the importance of HR knowledge is increasingly recognized by tomorrow's generation as illustrated in several recent HR Pulse Surveys carried out by the H uman Resources Professional Association (HRPA) and Canadian HR Reporter. 1 Changing demographics and the growth in knowledge work mean that the assumptions still held by many HR professionals about the nature of the workforce no longer hold. and knowledge workers will dominate the total work force.The " New" HR Economy Is Upon U s! It is my pleasure to write my third foreword for a new edition of Labour Relations. 20. After introducing the subject. Special Survey in The Economist. then proceeds to the critical topics of conflict management and public sector industrial relations. Spain . European Institute for Advanced Studies in Management. A . Some of the key characteristics of the series are: An emphasis on the practical Ease of use and flexibility Applicability to daily HR situations Guidelines for fostering leadership and strategic vision Guidelines for evaluating your organization's effectiveness A focus on innovations in HRM T he HR series intends to match all the key knowledge requirements of professional certification. Strategic HRM Workshop. 2010.. It also acknowledges a comprehensive re-think of the role HR professionals perform by facilitating conflict and dispute resolution. and 1D ruc ker. 1. in a usable and applied format reflecting the time pressures within which they must succeed. 2Templer. A Winning Matc h between Theory and Practice Throughout the text's development. While on a march towards a knowledge economy. 3 Nov. Labour Relations Is Pa rt of This Changing Reality For the third edition of Labour Relations. giving readers a glimpse into the future of labour relations. This shift from confrontation to collaboration is now a theme expanded throughout this third edition. the author has specifically incorporated all of the key Entry-Level Required Professional Capabilities (RPCs) for Labour Relations as outlined by the Canadian Council of H uman Resources Associations (CCHRA). the Canadian workforce remains highly unionized-significantly and increasingly more so than our American neighbours.Foreword The Pearson HR Series The Pearson HR series is designed for today's HR students. Thus. a qualified workforce equipped with the necessary skills for present and future endeavours remains a critical source of organizational growth and prosperity in Canada.and emphasizing students' need to question and think about what they read. Even after the tough downturn of the past few years. Finally. the focus of the third edition of the text remains upon unionized work settings. but recognizes that labour relations can no longer begin from a traditional confrontational model. 2001. Barcelona. economic stress. the text explores the changing environment of labour relations and the key players in the process. T he text helps students quickly find useful information that they can apply to the world of work. instructors and professionals who need access to HR knowledge which reflects current realities rather than yesterday's tradition. XI . and shifting power relationships. the author discusses the changing reality of employment relationships. 2001. has once again carried out an extensive revision and gives a thorough overview of the changing rela tionship between employees and management in a time of environmental change. Larry Suffield. It examines collective agreements and their negotiation. This is particularly true of the large and important public sector to which many Canadian students look for meaningful HR careers. while always recognizing the changing reality of employment relationships in contemporary Canada. & Balthazard. F. The Next Society. but to do this with an eye to the evolving nature of these requirements. The Professionalization of HRM-A Study of H R Professional Certification. as well as a recognition of the important role all parties play in organizational effectiveness. the author. C.. P.). In the revised edition. each chapter has a wealth of end-of-chapter material. and Web research exercises that wiU appeal to both students and HR professionals. which includes current cases. and guidelines for small businesses. and economic principles of labour relations-yet at the same time is continually aware of the practical applications those principles have in the world of work. Dr.xu Foreword the majority of the Experienced Professional-Level RPCs. implications for practice. social. critical thinking questions. Finally. These applications include: scenarios that demonstrate Canadian unions in action.particularly in new legislation-that affect the actual practice of labour relations. A key strength of this text is the way Suffield demonstrates a thorough grasp of the essential foundational. Andrew Templer Odette School of Business University of Windsor J uly 2010 . real-world examples. the author is careful to take note of changes in the Canadian context. Larry Suffield has combined in-depth coverage of theory with numerous practical applications. 10 important policy options. emphasizing the recession of 2008-09 and the resulting increase in government debt. are summarized as part of a discussion on the future of unions. industrial relations. Actual contract terms for issues such as contracting out. this book contains more of the "day-to-day" material required to respond to a union organizing campaign. Policy options are referred to throughout the text. In some jurisdictions. and other environmental factors pose threats and opportunities for the parties in the labour relations system. Students do not need to know what the rules are for all jurisdictions. Although there is a need for applied material. The book is based on the premise that employers. a union can be certified on the basis of membership cards. In some jurisdictions. Significant differences in labour relations policy have developed among Canadian provit1ces. however. It is known that there are differences between the Canadian and American labour relations systems. and should not lose sight of the context. such as a ban on the use of replacement workers during a strike. • Environment-The commentary on the environment it1 Chapter 2 has been updated. the differences between Canadian jurisdictions may not have received the attention they deserve. • Charter of Rights and Freedoms-The coverage of the Charter in Chapter 2 has been slightly modified and expanded. and collective bargaining courses. The factors affecting the critical unionmanagement relationship are reviewed. a representation vote is mandatory. are included. which can be used to save employers and unions time and money. a book on labour relations should be practical and applied. some restrict the use of replacement workers. tecllllological itlllovation. Third Edition.Labour Relations. in others. protecting bargaining unit work. Last chance agreements. and governments are key players in labour relations who are affected by a challenging enviromnent. and technological change are referred to. Most jurisdictions allow employers to use replacement workers during a strike. To deal with this challengit1g enviromnent. the labour relations board has the authority to certify a union without a vote as a remedy for employer unfair labour practices. Xlll . and to negotiate and deal with the admit1istration of a collective agreement. is intended to provide a practical text for labour relations. In the fit1al chapter. The following are some of the more noteworthy updates and revisions. Appendices provide summaries of the certification procedure and conciliation or mediation requirements for each jurisdiction. To meet the need for the practical. we must not overlook the labour relations system as a whole. Changes to the Third Edition A number of changes have been made to the third edition to provide key concepts to human resource professionals and better prepare students for the National Knowledge Exam. Some jurisdictions prevent a union from terminating an employee's union membership for any reason other than failure to pay dues. T he landmark Supreme Court of Canada decision in the Health Services case has also been referred to in subsequent chapters where required. T he final chapter it1cludes material relating to the effects of unionization and the future of labour relations. unions. but it will help them to understand and appreciate the policy options that have been adopted in their jurisdiction if they are aware of the alternatives. however. Globalization. pearsoned. • Collective bargaining rights.ca/text/suffield • Case Incidents. Limits on drug testing in unionized workplaces have also been added.XIV Preface • Confrontation vs. and discussion questions at the end of each chapter help you put the chapter material into practice . including additional collllnentary on arbitration and a new section on public sector compensation. • Contract Negotiation-Commentary on the duty to bargain in good faith has been slightly modified. The material on the union's obligations in the process of accommodation has been expanded. review questions. negotiation. and contract administration. • Contract administration-The material on arbitration remedies has been updated. are provided at the beginning of each chapter • Key terms are bolded and captured in margin notes. and these sites will help you monitor developments.T he hybrid seniority concept has been added to Chapter 7 on the Collective Agreement. T he websites referred to in the text are provided online at the Text Enrichment Site www. A list of these terms with page references is provided at the end of each chapter • Numerous examples are used to illustrate important concepts • Key Considerations boxes summarize essential points • Labour Relations Issues boxes highlight questions of interest and importance • Websites listed in the margins refer you to illustrations and sources of information. A new section on the review of arbitration decisions has been added. which illustrate labour relations issues and processes.A list of RPCs from the Canadian Council of H uman Resources Associations has been provided in Appendix D. collaboration-The commentary on this theme that runs through the text has been expanded. • Unions-Recent developments relating to the fines imposed by unions and the relationship between the local and the national w1ion have been added. and the importance of each side making its best efforts to have a memorandum of settlement ratified has been clarified. The objectives at the beginning of each chapter have been referenced to this list to show where the RPCs are covered. • A quote at the beginning of each chapter illustrates a key aspect of the material presented • Learning objectives clarify the outcomes expected • Real-life examples. The following features are intended to make learning about labour relations easier and more interesting: • Required Professional Capabiliries (RPCs). • Public Sector L1bour Relation!>-Chapter 11 has been amended.Chapter 6 has been slightly revised and reorganized to make the organizing campaign and certification process easier to understand and outline policy options. Labour relations is a changing field. For the Student This book was written to help you understand an interesting and crucial part of human resources management. with references to the Magna-CAW Framework of Fairness Agreement added to the chapters on collective bargaining rights. • Collective Agreements. • Union Renewal-The Chapter 12 material on union renewal has been revised. Additional instructions. are provided in the Instructor's Resource Nlanual that accompanies this text. and a contract negotiation simulation is provided in Appendi_x C.com/instructors. and multiple-choice questions • T he websites referred to in the text can be accessed through the Text Enrichment Site www. has a number of tools available to help instructors prepare and present the material: • A PowerPoint package • An Instructor's Resource Manual containing a summary of key points. and a Test Bank containing short-answer. CourseSmart for Students CourseSmart goes beyond traditional expectations--providing instant. CourseSmart can make life a little easier.coursesmart. ca/text/su ffield Cou rseSmart for Instructors CourseSmart goes beyond traditional expectations--providing instant.Preface For the Instructor In Chapter 3. Labour Relations. And with online tools like highlighting and note-taking.com/students. answers to in-text questions. and it is based on actual contract language in the industry. The material is set up in a modular fashion so that instructors may choose which issues to cover. Appendix C could be used to analyze a collective agreement and engage in a negotiation simulation.ca/text/suffield • T he chapter ending case incidents and the cases in Appendi_x A that were deleted from the second edition are available on the Text Enrichment Site www. Third Edition. XV . Whether it's evaluating textbooks or creating lecture notes to help students with difficult concepts. you can save time and hassle with a digital eTextbook that allows you to search for the most relevant content at the very moment you need it. which can be provided to union and management teams. the topics are presented in an order that may be unique: the structure and functions of union bodies are presented before their history. See how when you visit www. online access to the textbooks and course materials you need at an average savings of 50%. See all the benefits at www. commentary on questions and cases. true-false.coursesmart. no matter where you are. you can save time and study efficiently. With instant access from any computer and the ability to search your text. A grievance and arbitration exercise is provided in Appendix B. Problems have been encountered when the history has been considered before the student understands the concept of union locals and the distinction between national and international unions. and international unions. and whether to include the financial information provided. you'll find the content you need quickly. and course materials you need at a lower cost for students. T he collective agreement in Appendix C is for a casino. which discusses unions. And even as students save money. Appendix A provides cases that could be used in classroom discussion or assignments. national unions. New contract terms have been added to the collective agreement. online access to the textbooks.pearsoned. This is because the history of unions and the development of labour relations refer to structural concepts such as the local union. and new union and management bargaining team instructions are provided in the instructor's manual. pearsoned. Instructors who wish to follow a more traditional order might refer to the history component of Chapter 3 first . My Labour Relations course and this text have been improved with the addition of the cases.S. Wilfrid Laurier University Jerome J. To the memory of my father. who continues to be a champion for the PH Series in H uman Resources l. H is areas of special interest are employment law and labour relations.he will be the one carrying a recent labour arbitration decision. and their assistance continues to be invaluable.A from the University of Windsor. where he serves on the Educationa l Standards Committee. despite the fact I may have tested her patience.I wish to acknowledge the assistance provided to me that made this book possible. XVI .suffield@lambton. T he book is stronger because of their comments: Donald Chiro. (Economics) and LL. Clair College Gary L. My colleagues in the Lambton College Resource Center deserve special mentionthey do tremendous work. NAIT Casey H ellawell. he received an M.ca.on. Larry has served as the vice-president and chief steward of the union local represetlting faculty and counsellors at Lambton College. Larry is a professor at Lambton College in Sarnia.B. -L. where he teaches in the Business Administration and post-graduate H uman Resources Management programs.B. Larry can be reached at larry. developmental editor at Pearson Education Canada. Ontario. Collins. news items. and he is a member of the H uman Resources Professionals Association. University of Windsor Peter Seidl. and where he has served as the coordinator of the Marketing and Management department. thanks go to research assistants Courtney Reddom-Kettleson and Christine Lethbridge.A. for her advice and guidance. After practicing law for five years. Len ABOUT THE AUTHOR Larr y Suffield received his B. Durham College Roger Gunn. Larry enjoys hiking and you may see him on a trail. and papers that they have sought out. T hanks also to Andrew Templer. BCIT T hanks to Rema Celio. I thank the reviewers who offered constructive and valuable suggestions for the book.\llanagement. Finally. from the University of Western Ontario. Gannon. University of Lethbridge Jody Merritt. Larry has also taught human resources ma nagement and labour relations at the University of Windsor. St. The American labor movement has been characterized as being in a state of crisis and as experiencing a membership decline so severe and continuous that its ability to serve as an economic and political voice for workers is seriously threatened. and capable of adapting to a threatening environment with great flexibility and prag. 101 8. vibrant. Outline alternative approaches to labour relations 3. processes. 100. Define labour relations and industrial relations 96.98. Describe key differences between union and non-union workplaces 96. Explain the importance of labour relations 96 3. Identify environmental factors affecting labour relations 96.98. 101 7. In contrast.99. 96 5 . Describe alternative positions in the debate regarding union-management collaboration 3. and results involved in the labour relations system 96.102 4. 1 mat1sm.99 .Joseph Rose and Gary Chaison 1.96.100 6 . 100. dynamic. Identify the parties. 101 2 . 100. Outline a framework for labour relations 96. the Canadian labor movement has been described as strong. . and the admi nistration of a collective agreement T he term industrial relations does not have the same meani ng for everyone. there may be informal trade~ffs between individual employees and management. Union-management rela tions affect the public through occasional strikes and lockouts. Section 94 (1 )(a) of the Code provides that "No employer or person aaing on behalf of an employer shall participate in or interfere with the formation or administration of a trade union o r the representation of employees by a trade union. A commonly used definition of industrial rela tions provides that it is "a broad interdisciplinary field of study and practice that encompasses all aspects of the employment relationship. and the administration of a collective agreement." 2 T his definition includes both union and non -union workplaces. individual contracts with employees are replaced by the collective agreement. and the terms of employment must be negotiated with the union.2 Chapter I Introduction to labour Relations Bell Canada determined that it had a surplus of technicians in 2001. A basic question regarding the extent to which labour relations can be less adversarial will be left with the reader to consider further before we proceed to examine the details of the labour relations system in subsequent chapters. and it had an obligation to negotiate the severance package with the union. Bell met with the union and advised that it would be presenting employees with a voluntary severance package that employees would have a short time to consider. T his book adopts the broader definition of industrial relations. Labour relations affect the costs. the negotiation process. The Board found that the employer had violated the Code. Energy and Paper Workers Union of Canada. In this chapter.'' The union's position was that the terms a nd conditions of any severance package had to be bargained with the union. including the establishment of union bargaining rights. and unions. contending that the scope of industrial relations is limited to unionized workplaces only. for example. productivity. In some unionized workplaces. Approximately 30 percent of the Canadian workforce are union members. The quality or generosity of any "side deal" with an indiv idual employee is not relevant. however. Others define industrial relations narrowly. As the terms are used here. T hey impact the wages and working conditions of both union and non-union employees. Labour relations is defined as the study of all aspects of the union-management relationship. and affect prices in the marketplace. When employees are represented by a union. and profitability of employers. employees. including the establishment of union bargain ing rights. Alternative approaches to labour relations will be identified. DEFINING lABOUR RELATIONS AND INDUSTRIAL RELATIONS Industri al rel ations is the study of employment in union and nonunion organizations . the negotiation process. The employer's response was that the severance packages were outside of the collective agreement. The employees involved were covered by a collective agreement with the Commun ication. and means that questions relating to the pay of CEOs (chief executive officers) and to the negotiation of collective agreements would both be industrial relations issues. Bell refused to negotiate the terms a nd conditions of the severance package with the union. Some academics and practitioners define industrial relations broadly to include both union and non-union issues and workplaces. and views labour relations as part of industrial relations. labour relations affect all Canadians. Management could unintentionally violate this principle. questions and issues that fall under the heading . One of the purposes of this chapter is to indicate the importance of labour relations. the core principle that must be remembered is that there are no individual contracts of employment in unionized workplaces and the terms and conditions of employment must be negotiated with the un ion. we will define labour relations and outline its significance. This incident illustrates a key labour relations principle. l abour relations is all aspects of the union-management rei arionship. The union filed an unfai r labour practice complaint with the Canada Industrial Relations Board alleging that the employer had violated the Canada Labour Code by bargaining terms and conditions of work with indiv idual employees. T he Bell Canada incident illustrates the significance of labour relations to employers. when it creates an employee recognition program providing rewards to employees without consulting the union. and a framework for labour relations will be provided. however. some industrial relations issues t hat do nor involve union-management relations. 12. Some employers attempt to avoid un ionization by paying no n-un ion e mployees wages that are equ ivalent to the wages paid un ioni zed e mp loyees. That is.unio n workplaces wi ll be made to emphasize the imp ortance of labour relations.c a/en3/clefault. A collective agreement provides that any work done on a Sunday will be paid at the ovenime rate. for example the question of CEO compensation. some references provided in this text refer to industrial relations instead of labour relations. A non-union employee who has been wrongfully dis- 2.C ha pter 1 Introduction to Labour Relatio ns 3 of labour relations would by definition a lso be industrial rela tions issues. 11 . The effects of unions o n non-union employees will a lso be considered. There are boxes entitled Labou r Re lations Issues in each c hapter of th is book. both union members and employees who are not un ion me mbe rs are entitled to vote. Labour relations is u sed in this book for several reasons. Website for the Canadian Council of Human Resources Associations: www. and you sho uld consider these questions now. Labour Relations Issue 1-1 provides 12 questions.cchra-ccarh . strikes in the private sector cannot be e nded by such legislation. When a vote is held to authorize a strike. all employees in the group that would be o n strike are entitled to vote. one of them is labour relations. Unions reduce productivity and profitability. 10. When a union attempts to organize employees. ( . In the course of negotiation of a collective agreement. and genera te discussion. 8. Because labour relations cou ld be viewed as part o f the broader field of industrial relations. 9. Some pub lic sector employees have the right to strike provided that essential services are ma inta ined for the public by having some employees continue to work . 3. there is a lways a vote held to determ ine if the employees wish to be represented by the union. A governm ent might pass special back-to-work legislation ordering an e nd to a strike in the publ ic sector. th is is equiva lent to labour relations legislation in o ther provinces. It would not serve any useful purpose to engage in a debate about the meaning of the two terms. however. Although readers of the New Brunswick a nd federal legislation will see references to in d u strial relations. That is. the percentage of employees who are represented by unions has d ramatica lly decl ined in both Canada and the United States. 6. the employer may be required to reveal information to the union even though the union has not requested it. H owever. T hese items a re intended to highlight issues of specia l im portance and interest. required to become union members. Collective agreements can provide that employees are 1. Law regulating union -management relations is most commonly ca lled labour relations legislation. The Canadian Council of H uman Resources Associations has identified the competencies required to be a human resources practitioner. Contrasts to non. s. A union might be requ ired to waive this term of the agreement to meet its obligations under human rights legislation. When an employee takes a complaint to his o r her union-for example. are nor included as part of labour relations. This explains why the presen t book may be used in a course in industrial relations. asp Labour Relations Questions Which of the following are true? 7. ea ch relating to irs corresponding cha pter. Over the past 30 years. 4. missed will be reinstated by the coun. the union might be requ ired to agree to an employee working o n Sunday and not be paid ovenime if the employee cannot work on Saturday because of hi s o r her religious belief. Accordingly. These questions arc intended to illustrate the nature of the issues that la bour relations is concerned with. the employee alleges termination without cause-the union is required to pursue the matter with the employer. an employer could be forced to terminate an employee who refused to join the union. Newfoundland and L1brador. Labour relations specialists are more inclined to th ink that employee interests and management interests are not the same. and Quebec-unions were well established and were important actors in the political and economic life of the province. Its scope can be clarified by examining the table of contents of an introductory HR management textbook." which was passed in Nova Scotia in 1979. In four provinces-Alberta. employee involvement. Employee rel ations encompasses activities and processes aimed at maintaining a productive workplace while meeting the needs of emp loyees. includ ing the administration of a collective agreement. and that employees may logically seek to protect their interests through a union. and employee rights. For example. Some authorities distinguish between union and non-union employees by using "employee relations" to refer to non-union employees and " labour relations" to refer to unionized employees. and maintains an organization's employees. Typically such a text includes chapters relating to human resources planning. we will see in a later chapter that some issues such as discipline must be handled differently in unionized workplaces. referring to the entire relationship between a union representing employees and the employer. It includes communication. compensation. unionized employees.3 Human resources management tends to view unions as an external factor. it is not referring to the negotiation process. Collective bargaining also has different meanings. bur here we will briefly summarize why labour rela tions is important. there might be a separate labour relations department just as there are separate departments dealing with recruiting or training. selects. Accordingly. Employee rela tions refers to activities and processes aimed at maintaining a productive workplace while meeting the needs of employees.4 It found that in four provinces--British Columbia. discipline. L1bour relations can be viewed as part of lnunan resources management. and attracts. some references to collective bargaining here and elsewhere may mean more than just contract negotiation. IMPORTANCE OF UNIONIZATION AND LABOUR RELATIONS Labour relations is important for employers. T he effects and full significance of unionization will become apparent in subsequent chapters. Human resources management is defined as a set of interrelated activities that plans human resources needs. HR managers and labour relations specialists may have different perspectives on unions. Human r esources m anagem ent is a set of interrelated activities that plans human resources needs and attracts. it should be noted that collective bargaining and unions do not have the same strength or importance across Canada. and maintains an organization's employees. and labour relations. health and safety. Before proceeding. Nova Scotia. a statement might be made that collective bargaining affects the ability of employers to terminate employees. Others give it a broader meaning. recruiting. non-union employees. Ontario. and Saskatchewanunions lacked the strength to counter hostile governments or employers. selects. In larger workplaces. This is how the term is used here. considered differences between the provinces. Manitoba.4 Collective bargaining is the entire relationship between a union and the employer. Beyond the National Divide: Regional Dimensions of Industrial Relations. Some authorities use the term to refer only to the negotiation of a collective agreement by a union and the employer. selection. An example of the dependent nature of unions in some provinces is the " .lvlichelin Bill. Employee relations is another term that should be clarified. T his is a reference to collective bargaining in the broader sense. and society. The legislation made union organizing more difficult by requiring a union to organize all of an employer's . and are still 1ninor actors. Although employee relations activities such as conununication and discipline will not cease if an employer is unionized. A 2003 study. which could be avoided through sound practices. training. This broader usage includes both the negotiation and the administration of a collective agreement. Chapter I Introduction to labour Relations It will be useful to clarify the meaning of other terms that will be used. and the agreement between the employer and the employee govern the employment relationship. employment legislation. and position he ld. EMPLOYMENT RELATIONSHIP Unionization affects key aspects of the employment relationship. T his study is recommended to readers who are interested in the social. r Common l aw refers to the rules of law that originate fro m the decisions of judges. Employer must comply with noti ce and severance provisions of the collective agreement. and the government was subsequently re-elected with an increased majority. T he legislation was passed over the objections of the labour movement._ . Process to resolve disputes: Court actio n Grievance and arbitratio n process is provided in collective agreement. Changes in te rms of e mployment: Law regarding constru ctive dismissal prevents si gnifi cant c hanges without consent. If employer fai Is to establish just cause. subject to minimum provisions in e mploy ment standards legislation. Conc:~eration£~~ 1-1~--------------------------------~ Non-union vs. reasonable notice does not have to be provided. the common law. 1 There is an exceptio n in the federa l and Nova Scotia jurisdicti ons. length of service. subject to minimum provisions in e mploy ment standards legislation. The common law refers to rules of law that originate from the decisions of judges. Non-manageria l e mployees who are not covered by a collective agreement have recourse to an unfa ir dismissal procedure that may lead to re instateme nt. notice a nd severance provisions of collective agreement do not apply. r·- 1 •\. Constru cti ve dismissal doctrine does not apply.Chapter I 5 Introduction to Labour Relations manufacturing locations. 1 If employer establishes just cause. employer must provide reasonable notice but does not have to re instate. T he Key Considerations 1-1 box summarizes differences in the employment relationship between unionized and non-union workplaces . Without a w1ion. If employer fails to establish just cause. T his was clearly a government intervention to make unionization in manufacturing more difficult . political. Dismissal whe re cause or e mployee miscondu ct is a lleged : If e mployer establishes just cause. and economic differences between provinces. Unionized Workplaces Non-union Workplaces Unionized Workplaces Legal basis for relationship: Individua l contracts of employme nt Collective agreement Terms of employment a re negotiated by: Individua l e mployees The uni on Nature of employme nt te rms: Possibly unique for each e mployee Identical for a ll e mployees in the same job class covered by the collective agreement Dismissal whe re no cause o r a llegation of employee misconduct: Employer has obligatio n to give reasonable notice based on age. reinstatement is possible. no notice is required. Constru ct i ve dismissal is a rule of law provid ing that fundamental changes made by a non-union employer to the terms of employment are equivalent to a d ismissal. It also provides unionized employees with job security that non-union employees do not have. and not with the issue of whether the employer had a valid reason to dismiss the person.that is. In a unionized setting. If the employer dismisses a non-union employee without providing the employee with reason able notice. the employee can sue t he employer for wrongful dismissal. which is minimal. we will see that the union can challenge a dismissal. and position held by the employee. some collective agreements do not provide as much notice to employees as the common law would require pursuant to the reasonable notice requirement. In Chapter 8. The non-union employer who relocates employees. it is the union that negotiates the conrract before approval by employees. based upon the length of service. In a unionized setting. on the other hand. though it will have to give reasonable notice. the obligation to provide reasonable notice is eliminated. Where the employer dismisses an employee alleging there was cause. When an employer terminates non-union employees where there has not been any employee misconduct. Even if the employer fails to establish just cause.the employer has a legal obligation to provide employees with reasonable notice.for example in the case of a downsizing. which deals with the negotiation of the agreement. The reasonable notice required by the conunon law depends primarily upon the age. the employer contends there was employee misconduct. the terms of employment are provided in the collective agreement and they will be the same for aU employees in a job class. If the non-union employer establishes that there was serious misconduct. This should not be confused with the notice required by employment standards legislation. especially older employees with extended service. There is also a major difference between unionized and non-union workplaces when employees are terminated.6 Reasonabl e notice is the notice period employers are required to provide to employees o n the basis of factors including age. This means the employer's ability to terminate unionized employees is significantly reduced. Instead. When employees are unionized. TI1is 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. are emitled to reasonable notice that could be approximately 12 months. For example. When a union negotiates a collective agreemenr with an employer. Tlus is a rule of employment law that provides that if the employer makes significant changes to the terms of employmenr. however. Although non-union employers commonly establish uniform policies to standardize terms of employment such as vacation. the changes are viewed as equivalent to a dismissal of the employee. Chapter I Introduction to labour Relations In the non-union workplace. length of service. and it is possible he or she will order the employer to reinstate the employee. known as just cause. however. the employer might agree to provide one employee with additional vacation time. or demotes an employee could face a claim that there has been a constructive dismissal and be . it will not have to reinstate the employee in most jurisdictions. A non-union employer considering changes in the terms of employment must be concerned with the doctrine of constructive dismissal. which is negotiated by the union.there is a fundamental difference between the union and non -union settings. An arbitrator might review the employer's decision. Some unions have been able to negotiate collective agreemenrs that provide for significant notice in the event of termination. position. the individual contracts of employment of employees are superseded by the collective agreement. the terms of individual contracts of employment might be differenr for employees who do the same job. reduces compensation. the employer negotiates directly with each employee to establish the terms of employment. the employer must comply with the notice provisions of the collective agreement. Some non-managerial employees. and length of seiVice. we will see that employees have input into the terms that the union seeks to include in a collective agreement. T his legal action is concerned with the issue of whether the employer provided sufficient notice. and in most cases capped at eight weeks. We will see later that collective agreement provisions increase job security for many employees.'\]though there has been some increase in the use of alternative dispute resolution methods such as mediation. Countries with higher rates of unionization tend to have lower economic inequality. In the final chapter. who are not likely to be able to afford court proceedings. For example. job security. lower life expectancies. We will see that some non-union employees benefit from the efforts of unions to raise wages. UN IONIZED EM PLOYEE S: TERM S AND C ONDITIONS OF WORK Unionization can significantly affect the wages. and profitability. including the fact that this process does not involve any cost to the employee. the dispute is typically resolved through a court action if the parties cannot settle the matter. There are studies indicating that unionized employees have lower job satisfaction than non-union employees. EM PLOYERS: COSTS AND PRODUCTI V ITY Unionization can affect an employer's costs. Labour relations can 7 . and job satisfaction of employees. These issues will be explored further after we have had an opportunity to consider the terms and administration of collective agreements. and labour relations can affect investment and employment decisions made by employers. This is disadva nrageous to individual employees. This is significant for a number of reasons. Unions prevented the privatization of hydro in Ontario by taking court action. SO C IETY Unions affect society as a whole. The doctrine of constructive dismissal does not apply to unionized employees. An alternative view is that unions provide a collective voice to express concerns that otherwise remain suppressed. Some employers may contend that this reduced job satisfaction is due to the fact that unions stir up discontent. . we will return to this issue.C hapter I Introductio n to Labour Rela tions ordered to pay damages. Unions become involved in political and social issues that affect all of society. The employer can make changes in the terms of employment that are provided for in the collective agreement. disputes are referred to the grievance and arbitration process. Most employees receive improved wages and benefits as a result of unionization. productivity. NON-UNION EMPLOYEES Unions can have an impact on non -union workplaces and employees. a topic elaborated upon in Chapter 9. In the event of a dispute between an employer and a non-union employee. 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 there has been a constructive dismissal. working conditions.5 This is significant because societies with greater inequality endure more adverse social consequences. these methods cannot be forced upon the parties. In unionized workplaces. and higher rates of incarceration. illiteracy. including higher rates of mental illness. might affect the power of the employer and in turn affect wages. and the administration of the contract. and a body of rules that governs the actors. the employer might unilaterally establish hours of operation. and government agencies. The model proposed by Dunlop has been criticized. The prices of cars are affected by the unionization of autoworkers. The technology used affects the power held by the union or the employer. T he product market. The context of the system refers to the environment consisting of three areas: the technology used in the workplace. One criticism is that it underestimates the role of conflict in the system. the employer would be in a stronger position. by influencing the prices and availability of goods and services. or arrived at by negotiations between the parties. Strikes and lockouts can affect the availability of services. they contend that since the 1980s some managers in the United States have not shared an ideology with unions. Before proceeding to these key areas. including health care. established by government.8 Nevertheless. we need a framework or overview of the labour relations system. the context of the system. government legislation might require a minimum strike notice. the product and factor markets that affect the actors. In Canada and the United States. We should also understand that there are numerous approaches to or perspectives on labour relations. Others have challenged the assumption or premise of a shared ideology. If technology allowed workers to be easily replaced. workers and their agents. fRAMEWORK FOR lABOUR RELATIONS T he core elements of labour relations are the organization of employees by unions. Examples of procedural rules are those regarding the grievance procedure to resolve disputes between a union and an employer. an ideology that binds the system together. Specifically. At any one time. Dunlop's model has served as the starting point for other models of labour relations. Dunlop observed that a set of ideas and beliefs commonly held by the actors would bind the system together. and the parties might negotia te wages. SYSTE MS A PPR OAC H Discussion of a systems theory for labour relations should begin with Dunlop's outline of industrial relations systems. The procedural rules are processes used to determine the substantive rules or outcomes of the system. T he actors in Dunlop's system are management. the values of the parties would include the acceptance of capitalism and of unions as the legitimate representatives of employees. 6 Let us first review the key points in these two perspectives. one of the actors in the system might play the dominant role in setting rules. For example. An understanding of the basics of . which affect the outlook of individuals who conunent on them.? Dunlop's model had four key elements: a set of actors. He proposed that any industrial relations system will produce a set of procedural and a set of substantive rules. the market in which the employer sells the goods or services produced. Consequently. Two dominant perspectives are the systems approach and the political economy approach. and the distribution of power in society. and in fact have attempted to eliminate them. The rules referred to might be determined by employers taking unilateral action. we will refer specifically to conflict in a framework provided here. The power held by an actor in society might affect its ability to influence rules in its favour. the negotiation of the collective agreement.8 Chapter 1 Introduction to labour Relations affect the general public as well. which will provide a point of reference and help us understand the big picture. The terms of a collective agreement specifying wages are examples of substantive rules. a simplification and modification of Craig's model. assuming that the reader is familiar with the model. 12 A FRAMEWORK FOR LABOUR RELATIONS Figure 1-1 provides a framework for approaching labour relations. employees report high levels of concern regarding workload. In society. means that employees and unions cannot use the strike weapon to pursue political or social change. because some commentators refer to components such as a "web of rules" without explanation. because these variables in turn affect the processes or activities they undertake in the next element of the framework. their objective will be to attempt to negotiate provisions 9 . the relationship between employers and employees is based on the subordination of the employee. Adopting a political economy approach. It is asserted that employers have the upper hand when dealing with employees. It is in the employer's best interests to minimize the wages paid to employees. The framework has five elements: the actors or parries involved in labour relations. outlining an open systems model that provides for feedback as an essential component of an industrial rela tions system. (2) T he nature of the employment relationship leads to conflict. the enviromnent in which the parties function. We are concerned with the objectives. Surveys have established that over 80 percent of employees are satisfied with their jobs. 11 H e argues that conflict is inherent in the employment relationship for a number of rea sons. If unions perceive that job security is threatened. and the establishment of small fragmented single-employer bargaining units means that employees do not have sufficient power to deal with employers. the outputs or results of the parties' activities. the values of freedom and democracy are accepted as the norm. which includes any work stoppage whatever the reason. the processes or activities the parries engage in. the broad definition of a strike in some jurisdictions. stress. in particular the distribution of power. including: ( 1) There is a fundamental conflict of interest between employers and employees. unions. design work so that it requires lower skill levels. and government. If employers perceive that wage increases in recent collective agreements have pur them in an unfavourable cost position. and feedback to the first four elements.9 T he system outlined by Craig is the basis for a framework provided below.Chapter I Introduction to Labour Relations the model is valuable. Also. however. (3) Godard also points out that the nature of one's work is a potential source of conflict. some observers argue that features of the labour relations system maintain the existing social order and distribution of power in society. and this is a source of conflict. and values of each. and maximize worker effort . Actors or Pa rties There are three main parties shown in Figure 1-1: employers. their objective will be to hold the line on wage increases in contract negotiations. POLITICAL ECONOMY APPROACH The political economy approach to labour relations emphasizes that labour relations is affected by broader issues in society and the economy. power. only a brief illustration will be given here. coupled with the prohibition against strikes during the term of the agreement. In contrast. Alton Craig has expanded upon the Dunlop model. These variables are referred to in subsequent chapters. and fatigue. 10 John Godard views labour relations from a political economy perspective. the employer might establish a "no smoking" policy.10 Chapter 1 Introduction to labour Relations fiGURE 1-1 The Environment Economy Technology Social values Politica l system Legal system 4 Framework for Labour Relations Actors Employers Unio ns 3 -. and other terms of employment Rights arbitration decisions applying and enforci ng the collective agreement Stri kes and lockouts Legislation Othe r results including impact on prod uctivity. It should be noted that the parties do much more than negotiate collective agreements. If an issue is not governed by the collective agreement.g~ Processes and Activities Union organizing Contract negotiation Interest arbitration Conciliation and mediation Strikes and lockouts _. T he ability of management to . Subsequent chapters elaborate on these activities. turnover Ql .. union secu rity. job satisfaction. job security.. Arbitrators play a key role in the resolution of disputes relating to rhe inrerpretation of collective agreements. T his is a reference to the fact that management and tmions can both engage in activity independent of the other that affects the working conditions of employees. too. Grievance process Rights arbitration Uni latera l action by management or unio ns Union-management committees Political activity (unions and employers) Legislation (government) Feedback Outputs or Results Collective agreement terms governing wages. Labour Relations Boards are critical to the system because they administer legislation that governs unions and employers. management rights. the employer might make changes on its own initiative.. they might enact legislation that puts limits on wage increases. We will see later that conciliation officers and mediators are involved in contract negotiations.f r- such as increased layoff notice. It might be argued. The list of activities also includes unilateral action by management and unions. For example.Governments Othe r parties: labour Relations Boards Arbitrators L---------------------r--------------------J ~ ~------------------~~~------------------~ . Processes a nd Activities of the Parties T he second elemenr of the framework refers to the various activities rhe parties might engage in. If governments think that inflation is a problem. Other parties play a role in addition to the rhree main actors. that organizations such as " th ink tanks" that comment on public policy and attempt to influence the public and governments are another type of actor. benefits. Values and beliefs also impact the political environment. and employers. For example.. Union-management committees are another importa nt process the parties might engage in. alcoholism is considered to be a disability under human rights legislation and employers have to attempt to accommodate employees who are alcoholics. which governs matters such as how a union organizes employees and how employers are allowed to respond. To this point we have referred to the environment affecting the parties. Figure 1-1 does not expressly indicate how the components of the environment are interrelated and affect each other. including job security and health and safety. The union might provide training and education opportunities for employees. Some collective agreements establish various committees relating to job classifications. Political activity refers to attempts by unions and employers to influence elections and legislation passed by governments. unions. Social Environment. The components of the environment and the impact on the parties are elaborated on in Chapter 2. Technological developments affect union and employer objectives in a munber of areas. Technologi cal environment refers to developments in knowledge that lead to new products and services and changes in methods of productio n. but it should be noted that the influence can flow the other way: the parties might attempt to influence attitudes in society and legislation tl1rough public relations efforts. can lead to changes in the legal environment such as privacy legislation to protect employees. we will see that tmions and employers are heavily regulated by labour relations legislation. and employers. which allow employers to track more information and monitor employees. Political Environment. and employers. In later chapters. Unions might try to influence government to pass stronger health and safety legislation. Political environment is the Canadian political system and its effect on labour relations. political. The technological environment refers to developments in knowledge that lead to new products and services and changes in methods of production. Changes in technology. The social environment refers to the values and beliefs of Canadians relating to work. the employer and the union establish numerous unionmanagement committees that are not referred to in the collective agreemem. social. H uman rights legislation is playing an important role in the administration of collective agreements. T he economic environment refers to the economy of the nation and the competitive position of a firm in a particular industry. unions. The political environment in some jurisdictions such as Alberta appears to be more conservative. legal environment is the law that affects employees. These committees may deal with issues such as parking and health and wellness. Social environment refers to values and beliefs of Canadians relating to work. and legal factors that affect the parties and the processes they engage in. Employers might attempt to influence legislation regarding the union organizing process. and other issues. Economi c environment is the economy of the nation and the competitive position of a firm in a particular industry. In some workplaces. Legal Environment. The political environment refers to the Canadian political system and the effect it has on labour relations. health and safety. unions. T he values and beliefs of Canadians may make them more or less inclined to join or support unions. The Environment The environment refers to the economic. Technological Environment. the union and the employer will be affected. TI1e political system directly affects the legislation that regulates unions and employers. and this makes it less likely that legislation favourable to unions will be enacted.Chapter I 11 Introduction to Labour Relations enact rules unilaterally is an important point elaborated upon in the chapters relating to the terms of the collective agreement and its administration. If there is an increase in inflation or new competitors in an industry. . technological. TI1e legal environment refers to all of the law that affects employees. unions. 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. and employers. Economic Environment. might prevent the parries from using a strike or lockout. there might be links within one of the boxes shown. and the union's right to represent employees such as requirements for the mandatory deduction of union dues. the union's negotiation objectives will be affected. there may be restrictions on the introduction of technological change). Loop 3 confirms that outputs from the system can affect the parries. They might seek alternative methods to resolve disputes in the future. power. The agreement will also contain provisions that may affect the job security of employees and their rights to move to different jobs. If the employer introduces a dress code. can be slow and costly. Work stoppages can also affect the attitude of the public towards a particular union or unions in general. which is used to settle disputes relating to the administration of the contract (such as the termination of an employee). including productivity and employee job satisfaction.g. Legislation. such as obtaining work sharing or early retirement provisions. Loop 4 indicates that the outputs of the system can affect the environment. Each illustrates that an activity or output can in turn affect another element. Fourth. and values.. the ability of the employer to manage the business (e. In addition to the loops. An extended strike might cause the parties to seek ways to improve their relationship and avoid confrontation in the future. and as an output to indicate that legislation could be the result of the political activity of unions and employers. The best illustration of tlus is that an increase in wages and benefits might affect other outputs such as job satisfaction and turnover. A significant increase in wages might lead the union to focus on alternative objectives in the short term. Loop 2 indicates that an output of the system can affect the processes used by the parties. and that wages and benefits are not the only products of the labour relations system. it indicates that there are numerous processes involved. it emphasizes that feedback or the connection between components is an important part of the system. it illustrates that there are numerous outputs or results. If the employer takes unilateral action that the union objects to. Third. Feedback An essential feature of this framework is that its elements are interconnected and affect each other. The feedback loops in Figure 1-1 have been numbered. it reminds us that labour relations is very much affected by environmental factors such as the economy. which are elaborated on in subsequent chapters.12 Chapter 1 Introduction to labour Relations Outputs or Results T he fourth component of the framework sets out the possible results of the activities of the parties. Second. Fifth. power. specifically their objectives. T he feedback loops renlind us that no one part of the framework can be viewed in isolation. and values. or provide for regulations such as a strike notice. Wage increases and work stoppages affect the economy. it recognizes that there are different actors in the system and these actors might have different objectives. which has been included as an output. after we have studied the terms and administration of collective agreements. The primary output or result will be the collective agreement that sets out terms of employment. the union might attempt to deal with this in the next round of negotiations. We will see later that rights arbitration. This impact will be considered in the final chapter. T he negotiation process and the collective agreement can affect numerous variables. The framework in Figure 1-1 confirms several key points regarding labour rela tions. including wages and benefits. First. A change in any of the boxes shown in the . 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. This might affect the objectives of the parties. from processes to actors. indicates that an experience with a particular process can lead to one or both of the parries seeking to change it. Loop 1. The system also involved a pay-for-knowledge feature in which wages depended on the number of jobs employees learned. and it will be referred to in subsequent chapters as the need arises. The collective agreement was reduced from 70 to 7 pages. The reader should keep tlus question in mind as we proceed to discuss the details of labour relations such as contract negotiation. in the agreement the CAW agrees not to strike and this will be covered in Chapter 8. Magna International. The agreement has implications for several critical labour relations topics. Ontario. Perhaps it is not either-or. instead of waiting for instructions from management. question the extent to which this change is possible. H e warns against tmions becoming involved in such joint efforts. in many cases. the union was not able to organize the employees. which is high compared to that of other countries. For example.especially in the public sector. where the company used the same principles. Some take the view that HR management innovations and strong unions are incompatible. It is suggested that such collaboration can benefit both employers and employees by increasing efficiency. 15 Can unions and management move towards a more cooperative relationship that includes increased employee involvement? This is a difficult question that cannot be answered here. an auto parts manufacturer employing more than 18 000 people in 45 Canadian plants.distrust and confrontation mark the union-management relationship. 14 Donald \Veils points to a noted experiment in increased collaboration and union involvement at a chemical plant in Sarnia. Website providing Framework of Fairness Agreement: http.09 recession involved a "Buy American" component that affected employers and unions in Canada.caen/3642. They refer to the changing nature of work as one reason why adversarial attitudes cannot continue. and some new practices and increased collaboration can coexist with traditional labour relations practices. which requires all employees to become involved. the Shell model is a successful management strategy to avoid unions.url. He argues that instead of being an indicator of successful union -management collaboration. which deals with contract negotiation. a change in the economy or government policy in the United States might affect the objectives and power of unions and employers in Canada.htm www. T his agreement replaces the traditional confrontational model of labour relations with a collaborative approach. T hey contend that there is no inherent conflict between labour and management. who adopt a political economy approach. In 2007.ca . and the Canadian Auto Workers union signed a Framework of Fairness Agreement (FFA). Although there has been some attempt to move away from confrontation. T hey argue that unions and progressive human resources management practices. and the parties adopted a form of continuous bargaining to deal with issues. leading to higher profits. including increased employee involvement. which establishes a new labour relations model. Shell established a new plant that included work teams and extensive employee involvement. CONFRONTATION OR COLLABORATION Labour relations in Canada are viewed as being confrontational or adversarial in nature. For example. the stimulus package adopted in the United States to counter the 2008. It is argued that we now have an information -based economy. Wells alleges that the company used the Sarnia experiment to learn how to keep unions out. At another new plant. T hey point to the Canadian strike record. caw. can coexist. which can be the basis for higher wages and improved job prospects. They believe that there is an inherent conflict between labour and management that prevents a full partnership. and the parties need to cooperate in a world of increased competition. For example.//www.Chapter I Introduction to Labour Relations 13 figure can lead to changes in one or more other boxes. Some observers contend that there is a need to move towards more collaboration. as a source of weakness for the Canadian economy. 13 Others. T he question of the confrontational nature of labour relations and the possibility of increasing collaboration has been left with the reader as we examine labour relations actors.may entrench an adversarial relationship. Impli cations for Practice 1. and return to the question of increased employee involvement and union-management collaboration that is raised in this chapter. Chapter 5 also briefly refers to Labour Relations Boards. We will also consider interest-based bargaining. An employer or employee's first contact with a union may occur when a union attempts to organize a workplace. T he processes used by employers and unions-such as tradi tional confrontational bargaining.as well as the certification process and the conduct of employers and unions. Chapter 7 considers the possible terms of a collective agreement and reviews the serious implications these terms have for the management of an organization. the parties' power and values may be factors. objectives. We will consider alternative employer strategies and approaches to human resources management that will affect labour relations. In Chapter 5 we will review the objectives and methods of governments. T he purpose of Chapter 3 is to provide an understanding of unions. so we will review their structures. productivity. consider the future of unions and labour relations. legislation provides for fixed-term contracts. Currently. Employers and union leaders may not believe that collaboration is in their best interest. An employer who is in a position of power can implement changes despite union opposition. Also. lockouts. . and profitability. referred to its significance. and assistance available to the parties when they negotiate a collective agreement. processes. and methods. an alternative to tra ditional adversarial bargaining. In Chapter 10 we consider strikes. the parties will attempt to negotiate a collective agreement. In Chapter 2 we will explore the environmental factors that affect labour rela tions actors and processes. which play a critical role in the system. employees. and provided a framework that emphasizes that labour relations issues must be considered in their broader context. The unionization of an organization's employees could affect a number of issues including costs. T he information provided should help employees understand unions and allow employers to have a better understanding of the union they are dealing with. selection. the third key actor in the labour relations system. and for the most part does not require negotiation during the term of an agreement. In Chapter 8 we consider the negotiation of a collective agreement. OvERVIEW oF THIS BooK In Chapter 1 we have defined labour relations. may either help or hinder change. including the economy. Labour relations are an important part of human resources management for employers. and the union. including the processes the parties engage in prior to and during contract talks.a critical time for the employer. including the implications of the agreement for matters such as filling job vacancies and discipline. Chapter 6 reviews the organizing process. In Chapter 12 we review the effects of unionization on productivity and profitability. recruiting. and outcomes. We wiU see later that aspects of the legal environment may hinder labour-management collaboration. Labour relations in the public sector has distinctive features that are considered in Chapter 11. it is possible that environmental factors. If a union obtains the right to represent employees. In Chapter 4 we turn to the second actor in the labour relations system--employersand review their objectives and methods. history. functions. as well as alternatives to traditional grievance arbitration.14 Chapter 1 Introduction to labour Relations Referring back to Figure 1-1. In Chapter 9 we consider the administration of collective agreements. 11 Review Questions 1." b) Can a unionized employee be constructively dismissed? Discussion Questions 1. 11 technological environment. 3. 4 common law. values. 4. 3. p. p. p. p . Labour relations activities such as contract negotiation and strikes should not be viewed in isolation. job security.C hapter I Introduction to Labour Relations 2. p . and power. Find a news item involving a union-management issue. The activities the parties engage in are affected by the environment and by the parties' objectives. 11 employee relations. 5 constructive dismissal. p. any conunentary on labour relations matters should take into account the objectives and values of the observer. The effects of unionization are a matter of ongoing concern in tllis book. 6 social environment. and job satisfaction. p. p . Labour relations are also important for employees. Compare the students' answers to questions 2 and 3 above. p. Readers who have not worked in a unionized enviromnent should consider the following question in the light of media reports: To what extent is the relationship between unions and employers collaborative. p. Which group perceives the tmion-managemenr relationship as more cooperative? More adversarial? 5. p. 5. Alternative labour relations practices should be considered. Readers who have worked in a tulionized environment should consider the following question in the light of their experience: To what extent is the relationship between unions and employers collaborative. however. p. Key Terms collective bargaining. and to what extent is it adversarial? 3. Explain why labour relations are significant to all Canadians. 2 labour relations. Distinguish between labour relations and industrial relations as these terms are defined in this book. 15 . Unionization will affect employees' compensation. T here are varying approaches to labour relations that involve different assumptions and values. Do you agree or disagree with the political economy approach referred to in this chapter? Why? 2. 4 industrial relations. p. a) Explain the meaning of the following statement: "An employer has constructively dismissed a non-union employee. Readers should keep the following question in mind and reconsider it after leanling more about labour relations: What are the effects of unionization? Distinguish between any negative or positive effects that you perceive. 4 lnunan resources management. Outline the components of the framework for labour relations. and to what extent is it adversarial? 4. 11 reasonable notice. 11 political environment. 4. 6 economic environment. and explain it in terms of the framework for labour relations provided in this chapter. 2. 2 legal environment. org/home_engshtml) is one of many providing information relating to employment and labour issues. See what is available for labour relations in your province. The company made an offer of employment to Thornecrest. Thornecrest sought the adv ice of the union. seven technicians lived in other municipalities between 27 and 79 km away from Anytown. Questions 1. and equipment. The technicians are represented by a union. . Include any remedies that you would order if you decided in favour of the employee. supplies. explain what your decision would be. this may be a useful starting point for information for your jurisdiction. Most of the company's technicians reside in Anytown. and (2) Thorne crest had agreed to terms of employment that did not provide for her to have use of a van to travel to her job. and they were told that (1 ) the company was concerned about the costs of allowing Thornecrest to drive the company van to her home. Technicians were allowed to drive their company van home and go directly to a customer's location at the start of each day. Safe Watch Security Safe Watch Security sells and services horne and commercial security systems. Most technicians were able to carry out their job duties without attending the company's office more than tw ice a week to pick up supplies. commuting to Anytown. After working for the company for a few weeks and becoming aware that other technicians were allowed to drive their vans horne. Safe Watch suppl ied each technician w ith a van. 2. The association has a resource library containing information relating to all Canadian jurisdictions. The company interviewed judy Thornecrest for a position as a technician.16 Chapter I Introduction to labour Relations Web Research T he Canadian Association of Administrators of Labour Legislation (CAALL) website (http://www. Although the information is not standardized. tools. it was discovered that Thornecrest res ided 70 krn away from the company's office in Anytown. If you were the decision maker in this situation. A union representative took up the matter with the company. Safe Watch was concerned about the costs of operating the van assigned to Thornecrest if she was allowed to drive her van horne. A n attempt was made to assign technicians to jobs close to their res idence. If this dispute goes to a hearing. Thornecrest accepted the company's offer and began work. however. Explain the basis upon which the union could pursue a complaint on Thornecrest's behalf. During the interview. The company employs 15 technicians w ho do installations and serv ice customers w ithin a 200 krn radius of its office and warehouse in Anytown. and although the collective agreement did not refer to the issu e of company vehicles. wh ich provided that she would have to provide her own transportation to the company's office where her van would be kept.caall-acalo. what arguments w ill be made by the union and the employer? 3. Every event in the last year has been unprecedented: the destruction of approximately $50 trillion in assets in the global economy. 102 4. Outline the legal requirements that affed employers and unions 3.Fareed Zakaria 1.. 3. Explain the implications of the social and political environment for labour relations processes 1. 100. 32. 102 2 . 3. Describe the implications of technology for unions and employers 1. 29. 102 . 3.. 100 3. Outline the possible effects of economic variables on employer and union objectives and power 1. 100 5 . 3. 1 . Identify the environmental factors that affed labour relations 1.The crash of 2008 was the world's worst financial collapse since 1929 and has ushered in the worst economic slowdown since the Great Depression. bailouts and stimulus packages arotmd the world adding up to trill/ions of dollars. which states that it is not discrim inatory if an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in similar positions. EcoNOMIC ENVIRONMENT T he economic environment is critical to employers and unions. T he framework provided for labour relations in Chapter 1 referred to the objectives. We will see in this chapter that one of the requirements to establish a BFOR is that it is imposs ible to accommodate employees without imposing undue hardshi p upon the employer or the union. In 2003 the agreement negotiated by the union a nd the employer provided that pi lots were required to retire at age 60. Unfortunately. The Canadian Human Rights Act provides that distinctions on the basis of age are discriminatory. were te rm inated in 2003 and 2005 res1:>ective ly. All Canadian legislation must comply with the Canadian Charter of Rights and Freedoms. the Federal Court held that section 15 (1) (c) of the Canadian Website for historical Consumer Price Index information: www. and there may be periods of time when a legal issue remains uncertain. and power of the parties and the numerous activities or processes that the parties engage in. The exception in section 15 (1) (c) made it possible for federally regulated employers to impose mandatory retirement upon employees. The Tribu nal found that the accommodation required to al low pilots over age 60 to fly would not impose an undue hardship. The employer and the union claimed that international standards that prohibited pilots aged 60 to 65 from flying unless another pilot in the crew was under age 60 would cause operational problems. and legal. the complaint was dismissed.htm Human Rights Act did violate the Charter. although a requirement that an indiv idual has a specified level of vision discriminates on the basis of disabil ity. and if it was not saved by section 1. We will start by considering the overall economic climate and how it affects the parties. T he five aspects of the environment that were depicted in Figure 1-1. htm Website for current Consumer Price Index information: www. whether the mandatory retirement provision was a bona fide occupational requ irement (BFOR). because the newly elected government may be more or less likely to enact pro-business labour relations legislation. and they filed a complaint with the Canadian Human Rights Commission alleging that the col lective agreement term imposing mandatory retirement was discriminatory. the parties will be adversely affected. statean. it was held that section 1S (1 ) (c) of the Act could not be justified under section 1 of the Charter. especially contract negotiation. in accordance with the collecti ve agree me nt .ca/engl ish/Subjects/ Labour/ LFS/Ifs-en. Two pilots. Air Canada and the union indicated they would appeal the Tribuna l's decision . The Tribunal found that the exception allowed by section 15 (1) (c) did not violate the equality rights provided in the Charter. The Charter also provides in section 1 that the rights guaranteed are not absolute-they are subject to ". For example. The issue was re- mitted back to the Tribunal to determine if the violation of the Charter could be saved by section 1 of the Charter. This incident illustrates the importance of hu man rights legislation and the Charter to employers and unions. However.. it is possible that an employer could justify this requirement if it is established that it is a BFOR. On a first hearing before the Canadian Human Rights Tribunal. statean. In August 2009 after the second hearing before the Tribunal. The Tribunal also found that the company and the union could not establish that mandatory retirement was a BFOR. A BFOR is a discriminatory requirement that an employer can retain provided that certain requirements specified in this chapter are met." Vilven and Kelly wanted to continue to work. we will consider the environmental factors that affect the parties and the processes of labour relations. social. political.18 Cha prer 2 T he Environment Pilots at Air Canada are covered by a collective agreement between the company and the Air Canada Pilots Association..Pgdb/econ46. however. an economic downturn might affect the political process by leading to the replacement of a fiscally conservative or right-wing govern ment with a more left-leaning government or vice versa. this also illustrates how slowly the legal system works. on a judicial rev iew of the Tribunal's decision. I n this chapter. If the economy is in a recession. T he quote at the beginning of the . such reasonable lim its prescribed by law as can be demonstrably justified in a free a nd democratic society. and complying with those standards would impose an undue hardship. developments in one may affect others.ca/engl ish. For example. In turn this may affect the legal environment. technological.economic. and the complaints of Vilven and Kel ly were upheld.are not separate domains. the Act also provides an exception in section 15 (1) (c). The Charter proh ibits discrimination based on age. and the exception allowed in section 15 (1) (c) was invalid because it contravened the equality rights guaranteed by the Charter. Vilven and Kel ly. values. Chapter 2 T he Environment 19 chapter referred to the recession of 2008. If the inflation rate is 4 percent and employees receive a 2 percent wage increase. some Canadian unions reject tlus role. !vloreover. Nominal wages are wages that have not been adjusted for inflation. and public sector employers may have additional tax revenue. This will lead to union demands such as increased severance payments and notice of layoff. Finally. especially to the United States. a strike by a teachers' union would more likely be supported by the public in a period of economic prosperity than in a recession. For example. trade practices. real wages have been reduced by 2 percem. many private sector employers may have increased sales. including whether it is in a period of recession or growth. and fluctuations in the value of the Canadian dollar. u nemployment rate. Increased security concerns could pose an even greater economic threat. The Canadian economy is open. in a period of economic growth. such as air travel.S. In some cases. Governmenr policy to regulate the economy will also have its effects. The state of the economy might affect public support for the demands of one of the parties. and what the rate of inflation is. Canada's tourism sector has revenue of $55 billion per year. for example. The United States claimed that Canadian producers were being unfairly subsidized and imposed tariffs on Canadian lumber. In a recession there will be increased pressure on some employers to reduce costs. In economic downturns. meaning that we import many goods and are heavily dependent upon exports. however. In periods of economic growth. and they will seek to avoid wage increases or even to obtain concessions from the union.09. which in turn might impact its bargaining power. unions will be concerned with job security. where unions have been forced to accept lower wage increases or even make wage concessions. economic factors may present unique threats or opportunities. This led to the closure of Canadian lumber operations. and in turn affects labour relations outcomes. more than five times the value of softwood lumber exports. there has been an attempt to make this more palatable by providing increased union access to decision makers. many people nught think employees are "lucky to have a job" in a recession and should not be going on strike. Periods of economic growth have thus been associated with higher rates of union organization and a higher incidence of strikes. MA C RO ECO N OM IC EN V IRO NM ENT The macroeconomic environment refers to the state of the economy as a whole. recent economic trends and issues such as free trade will be considered. For certain industries. especially when competitors are continuing to operate.S. Most Americans do not The m acr oecono mic en viro n m ent is the growth rate. Although inflation has not recently been a problem in Canada. Increases in the Consumer Price Index exceeded 10 percent in the mid-1970s and early 1980s. trade practices and security concerns. unions will seek larger wage increases to protect the real incomes of employees. especially in western Canada . . Real wages are wages that have been adjusted for inflation. TI1e Uruted States has adopted a requirement that Americans have a passport to re-enter the country. N o minal wages are wages that have not been adjusted for inflation. For example. at times in the past it has posed a concern. In times of inflation. which led to significant job losses. T his raises the wage expectations of employees and prompts unions to pursue increases in compensation. Real wages are wages that have been adjusted for inflation. and the rate of inflation in the economy. what the unemployment rate is. the employer may wish to avoid the interruption of production a strike would cause. union representatives have been included on boards of directors. T he softwood lumber dispute with the United States in 2002-03 illustrates the significance of U. This makes our economy vulnerable to U. The macroeconomic environment impacts the objectives and power of unions and employers. The federal government and some provincial govenunents pursued a policy of tax cuts in the 1990s. By the 1990s. in recent years there have been times when the Canadian dollar has approached parity with the U. Our dependence on exports to the United States makes the value of the Canadian dollar an important economic variable. GOVERNMENT ECONOMIC POLICY T he govenunent may attempt to regulate the economy. Because the Canadian economy is open to imports and dependent on exports. governments have regulated wage increases through programs that have prohibited increases above specified levels.fraseri nstitu te. H owever. For example. The . Interest rates can be reduced to stimulate the economy and raised to control inflation. The government can reduce taxes and increase spending to stimulate the economy and reduce unemployment. policyalternatives. taxes could be increased. government policy has been aimed at controlling inflation. In the public sector. Since the mid-1970s. Two other apparently conflicting objectives have been pursued: reduction of government debt and reduction of taxes to be competitive.ca fiscal policy consists of c hanges in government spending and taxation to regulate employment levels and inflation. Monetary policy refers to changes in the interest rate to regulate employment levels and inflation. and interest rates were raised in an effort to bring inflation under control. Conversely.ca Monetary policy consists of changes in the interest rate to regulate employment levels and inflation. In the process of fighting the recession. Website for t he Canadian Centre for Policy Alternatives: www. In some inflationary periods. Whether such tax cuts are sound public policy is an interesting question. specifically unemployment and inflation. spending aimed at increasing economic activity and reducing unemployment. To counter the recession of 2008-09. the federal and provincial governments adopted spending cuts and other policies that affected unions. The national economic numbers hide regional disparities. 2 Recently.S. which is left for the reader to consider.S. The websites cited in the margin here provide information and commentary both in support of and against them. they also reduce spending and cause increases in unemployment. government debt had risen to a point where it was a concern to policymakers. the Canadian dollar traded at less than 70 cents a U. Although higher interest rates fight inflation by reducing demand. providing Canadian exporters with an advantage. dollar. 3 Fighting inflation has not been the only concern of government in recent years. Fiscal policy refers to changes in government spending and taxation to regulate employment levels and inflation. For many years. Website for the Fraser Institute: www .20 Cha prer 2 The Environment have a passport. dollar. the Bank of Canada lowered interest rates in 2004 in an attempt to stimulate the economy. Reduced spending and tax revenue affects labour relations. The proponents of these tax cuts have pointed to lower tax rates in other jurisdictions and claimed that taxes in Canada had to be cut to remain competitive and encourage economic growth. especially in the public sector. which employs more than half a million Canadians. To reduce the debt. raising concerns about job security. and the tourism sector. they imposed wage freezes on employees and in some cases forced the renegotiation of collective agreements. could be significantly affected. and jobs have been lost in the manufacturing sector as a result. there is pressure to keep costs in line with those of foreign producers. There have been times when the unemployment rate in Newfoundland and Labrador was five times the rate in Alberta. governments have added billions of dollars of debt that may constrain policy options in the future. The government has set an inflation target of 1 to 3 percent. However. and government spending could be reduced to control inflation. through monetary and fiscal policy. the federal government adopted a stimulus package. in earlier years there were periods of double-digit inflation. inflation has been low and interest rates have been down. and the primary tool the government has used has been monetary policy. The rising Canadian dollar and lower lumber prices because of a decline in U. 5 INDU STRY. demand for the product will increase in a recession and decrease in a recovery. the situation in the industry may have changed yet again. One aspect of the firm's product that will affect the union and employer is its price elasticity of demand. From 2004 to 2008.htm Pri ce elasticity of demand refers to how much a change in price affects demand . Governments negotiating with their employees may point to reduced revenues and the need to control the debt as reasons why wage increases are not possible. . 8 It was noted that Alberta's cost advantage had eroded over the previous six months. It is a basic principle of economics that there is an inverse relationship between the price of most goods and services and the quantity demanded. employment fell by 332 000.AND FIRM-LEVEL 0 EMAN D Economic factors at the level of the firm and of the industry can also have significant consequences for employers and unions. the provincial and federal governments parricipated in a 2006 summit relating to the fishery. a decline of 14 percent. may be maturing because of overall aging of the population. This program was cited as parr of the reason for an auto parts company investing $1. A distinction is drawn between an elastic and an inelastic demand. For example. a news headline proclaimed " Forestry Products Triple. Firms may operate in a market that is more or less pricecompetitive. individuals who have lost their jobs in manufacturing have endured longer periods of unemployment than workers from other sectors who have lost their jobs. When the price of the good or service changes. H ow much a change in price will affect the quantity demanded depends on the nature of the good or service.the sensitivity of the demand for the product to a price change. which will in turn affect their contract negotiations with unions. and if the price is raised the quantity demanded decreases. a $500 million program to support the industry. Some industries and firms will be affected to a greater or lesser extent by any given economic variable.4 In Newfoundland and Labrador. a news report outlined how the Alberta forest industry had suffered a rapid reversa1. Lower interest rates lead to significant increases in demand in the housing industry. Elastic demand exists w hen the demand for a product is more price-responsive.Chapter 2 21 T he Environment elimination of some services in the course of spending cuts leads to concerns over job losses. Furthermore.that is. for example.ca/engl ish/Subjects/ La bour/ LFS/1 fs-en . The manufacturing sector has experienced significant job losses in recent years." 7 In 2006. When this is read. Some industries may experience significant changes in a short period of time. In 2005. An elastic demand means that the demand for a good or service is more responsive to a change in price. Ontario has established an Automotive Investment Strategy.6 Producers of major items such as automobiles and appliances generally may be more affected by an economic downturn. The beer industry. and record profits from the previous year had turned to losses. Government economic policy can also include direct and indirect support for an industry. The sensitivity of demand to overall economic changes differs from firm to firm and industry to industry. Figure 2-1 illustrates an elastic and an inelastic demand and the effect on the quantity demanded when there is a change in price. If the price is reduced the quantity demanded increases. Some industries are countercyclical. housing starts were cited as factors leading to the closure of mills and job losses. business may increase in a downturn because people are delaying purchase of a new vehicle. including skills training and other assistance. Firms may be competing in either a growing industry or one in which sales are levelling off or declining.1 billion dollars and creating 3 000 jobs. the percentage Website for c urrent Consumer Price Index information: www. in the auto repair industry. Tllis is reflected in a downward-sloping demand curve for the good or service.S. and government may have to play a key role in the industry in the future. Inelastic demand exists w hen the demand for a product is less price-responsive. sratcan. '\n inelastic demand refers ro a situation where the demand is less price-responsive. . the interaction of the demand for labour by firms and the supply of labour by individuals determines the level of employment and wages. The percentage change in the quantity demanded is less than the percentage change in the price of the good or service.22 Cha prer 2 The Environment FIGURE 2-1 Elasticity of Demand p \ Pz ~----------~ P. follows. labour economics provides a model that refers to the demand and supply of labour that will help explain changes in wages and levels of employmem. ~----------~~ \ Q. such as house insurance. for which there are few substitutes available. for any given change in price the change in the quantity demanded will be less significant. On the supply side. ECONOMIC TREND S AND I SSUES AFFECTING L ABOUR RELATIONS T here are several economic trends and issues that may affect labour relations. such as computer animators. A brief review of the effects of a change in the demand for or the supply of labour. holding other factors constant. should lead to increased levels of employment and higher wages. . such as a medication. Labour Market Changes In a competitive non-union labour market. however. Q Elastic Demand Q2 Q . have led ro higher wages and signing bonuses for employees. faces an elastic demand . To illustrate. shortages of employees in some occupational groups. such as an economic upturn. A company producing a product or service that is essential. any factor that causes an increase in the supply of labour will tend ro increase levels of employment and reduce wage levels. T he labour market is not perfectly competitive. Any factor that causes an increase in the demand for labour. and any factor that causes a decrease in the demand for labour. faces an inelastic demand. When the demand is inelastic. such as an economic downturn. A company producing a product or service for which there are substitutes readily available. should lead to decreased levels of employment and lower wages. Q Inelastic Demand change in the quantity demanded is greater than the percentage change in the price of the good or service. and any factor that causes a decrease in the supply of labour will tend to decrease the level of employment and increase wage levels. palt-time and temporary work . Although the overall trend is towards an older workforce. In a labour market without a union. and disabilities. Diversity. Through legislation. 10 Such differences might affect unions and employers. Non-standard \Vork. Unions and employers will have to deal with discrimination. which are discussed below. may wish to have the opportunity to work less in the final years of their work life. Some studies have found that female employees are less likely to support unionization. Many hospitals have lost technicians to the private clinics. Recently. Younger Employees. offering wages to technicians higher than those paid by hospitals. which will put upward pressure on wages and make it difficult for employers to recruit some types of employees. They may be more concerned with increasing pensions than with current wage increases. employees may be able to increase their power. and it is likely to be low if workers do not have unique skills or abilities. Di ver sity is a characteristic of a labour force that includes people of different religions. traditional full-time employment.3 percent. The workforce is aging. Diversity refers to a labour force that includes people of different religions.Chapter 2 T he Environment 23 Governments are also involved in the labour market. For example. including part-time and temporary work. Others may wish to extend their careers beyond the traditional retirement age. and day care. erhnicity. sexual orientations. and by 2009 this had increased to 47. and this has meant that some hospitals are not operating at peak capacity. However. In 1978 approximately 30 percent of rhe labour force was female. harassment. Female Participation. and this will pose a problem for both parties. many employees have little or no bargaining power when dealing with their employer. Unions could be viewed as a way to avoid the effects of the labour market that would otherwise be imposed on individual employees. Unions will have to be concerned with internal policies to ensure that women are adequately represented in union positions. By joining a union. a recent study in Ontario found that female-dominated workplaces were more likely to vote in favour of unionization than male-dominated ones. Conversely. and they may also be more concerned with job security as they approach retirement. especially employers. sexual orientations. Older workers have preferences that may affect union demands and negotiations. The female percentage of the labour force has increased dramatically since the mid-1970s. there may be labour shortages. it is likely that younger employees place a greater value on family-work life balance.9 As the baby boomers (those born between 1947 and 1966) retire. the govenunent establishes minimum terms of employment such as vacation and overtime rules. In the absence of unions. and there appears to be conflicting evidence on this issue. Non-standard work refers to work arrangements other than Non -standard work is emp loyment in other than traditional fu Ittime work-for example. it is possible that the wage rates in the labour marker might be pushed higher than the wages provided for in collective agreements. and acconunodation issues. and disabilities. and this may have significance for unions and employers. instead of working full-time until retirement. ethnicity. harassment. the values and preferences of younger employees cannot be ignored. 13 The increased unionization of women means that unions will have to be more concerned with issues. Some employees. 12 T he question of whether female employees are as likely to support unionization as males has been raised. 11 Union membership is now equally divided between men and women. Statistics Canada defines part-time employment as a job that involves less than 30 hours per . such as flextime. Canadian society and the labour force are becoming more diverse. Aging \Vorkforce. individual employees would have to accept the market wage. private MRI clinics have begun operations. and it affects the supply of labour by providing education and training. Globalization is the trend towards firms obtaining resources and producing and selling their products anywhere in the world. Where worker turnover is higher. so union ization is more difficult. 14 A significant portion of this part-time work.gc. The most significant such agreement for Canadian unions and employers is the North American Free Trade Agreement (NAFTA) between C·mada. Globalization also means that capital will move to wherever the highest return is provided. Trade liberalization is the trend to international agreements that reduce tariff barriers between countries. because the union will be concerned with protecting employees from job loss. it is possible to ship iron ore across the Pacific to China to produce steel and subsequently ship the steel back to North America. This will affect negotiations between employers and unions. they are not able to find full-time employment. Mergers create the possibility of layoffs.15 Trade Liberaliza tion Trad e liber alizatio n is the trend towards international agreements that reduce tariff barriers between countries. T he dispute revolved around the question of whether Canadian Airlines employees would be allowed to take their seniority with them. and will locate production where costs are the lowest. 19. Globaliza tion Globalization is the trend towards firms obtaining resources and producing and selling their prod ucts anywhere in the world . Smaller part-time units are more costly for unions to organize. Mergers might also lead to disputes within unions regarding seniority. and they do not have experience with unionization. One observer has noted that the globalization of goods depends on cheap oil prices and oil prices will rise as the world's supply of oil diminishes. and sell in many other different countries. (Globalization is separate from and predates trade liberalization. It means that international boundaries have no significance for conunerce: A firm may obtain resources in one country. approximately 25 percent. and in 2009. hrsdc . produce in another country. they have to take into account differences in productivity and not just the wage rate. only 4 percent of employees worked part-time. Many part-time employees are more likely to quit when they become dissatisfied and move to another job.24 Cha prer 2 The Environment week. . Unions have found it difficult to organize parttime employees for a number of reasons . discussed nexr. When Air Canada merged with Canadian Airlines.) T his is significant because it means increased international competition.1 percent worked part-time. There has been a significant increase in the number of employees who hold part-time jobs.ca. there is less conunitment to the workplace. however. In a world of cheap oil. l\1ergers Website providing the North American Agreement on Labour Co-operation (NAALQ : www. which have affected labour relations.ten/1 p/ila/NII LA/ NAALC_index.shtml T here have been periods of significant merger activity in the past. Many work in industries where unions have not had a presence and unionization is not the norm. Firms face pressure to reduce costs and prices. Rubin argues that higher energy costs and concerns over global warming will lead to a rejuvenation of local manufacturing. employers have attempted to use non-union part-time employees to reduce costs. there was a conflict between employee groups represented by the same union. the . This issue is critical because it could determine which employees are allowed to retain their jobs in future layoffs. 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. Note that when firms consider labour costs. Part-time employees pose a challenge for unions. There may be situations in which total labour costs are lower in Canada despite the fact that the Canadian wage rate is higher. H igher energy costs in the future may mean that this is no longer economically feasible.lviany are younger. Since they are generally paid lower wages and receive fewer benefits. In the 1950s. T his means that the part-time employees involved would prefer to work fuJI-time. is involuntary. Deindustrial izat ion is the shift from the manufacture of goods to the production of seiVices. and Mexico that came into effect in 1992. accounting for 42 percent of the private sector labour force. However. 17 A more recent study found that 56 percent of employers and 57 percent of union local officials surveyed reported a permanent reduction of employees within a two-year period. found that there was a major downsizing in 25 percent of the workplaces in the 10-year period preceding the survey. but this has not been the case in the service sector. Downsizing Downsizing refers to the elimination of jobs for the purpose of improving efficiency and improving economic returns. T hey will have to be more concerned with job security issues. there will be concerns relating to possible expansion and change. Unions opposed NAFrA because they feared Canadian employers could not compete with the lower wages in Mexico and parts of the United States. T he manufacturing sector. In firms for which the agreement poses a threat. Specifically. 18 This study found a negative impact on employee satisfaction and the labour relations climate. Possibly the loss of manufacturing jobs has been a factor causing some unions to pursue the organization of workers in the service sector. NAFrA has added to the economic pressure that some employers face and in turn puts pressure on unions. the union and the employer will be concerned with job loss and possible plant closure. 16 Deindustrialization Deindustrialization is the shift in the economy from the manufacture of goods to the production of services.Chapter 2 T he Environment United States. in particular Mexico. T he debate about whether NAFTA has been positive or negative for Canada is not resolved. A 1992-94 survey covering 336 firms in the private sector. Finally. Downsizing is the elimination of jobs for the purpose of improving efficiency and improving economic returns. had lower labour standards and that even these were not adequately enforced. because they may have to reduce their wage demands in an attempt to save jobs. Proponents of NAFTA argued that the Canadian economy would benefit from access to markets in Mexico and the United States. a few things seem clear. Some firms have used the threat of their relocating to force unions to accept lower wage increases. there were concerns that the other jurisdictions. early retirement options. to avoid a decline in total membership. where jobs have been reduced. The union and employer will be concerned with increased adaptability. In firms for which the agreement presents opportunities. It has been suggested that NAFTA's effect on labour relations at individual firms will depend on whether it poses a threat or an opportunity to the firm. If so. T his led to fears that there would be a harmonization of standards at a lower level than existing Canadian standards. 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. . and would be forced out of business. was heavily unionized. and work sharing. Unions were also concerned that the agreement would lead to Canadian employers moving to Mexico or the United States. downsizing was associated with higher grievances and increased absenteeism. deindustrialization has affected employers in the service sector by indirectly leading to the organization of their employees. including layoff notices. Downsizing has been a frequent strategic move in recent years. It has also been suggested that NAFTA creates an incentive for employers and unions to cooperate on workplace issues because disputes cannot be tolerated in the more competitive enviromnent. T his shift has significance for both unions and employers. reclassification. Deregulation Deregulation is the rep lacement of government control over market entrants and prices w ith competitive markets. and the use of seniority as a criterion for promotion. Downsizing puts unions on the defensive. Where change leads to new jobs. services. Technological innovation has important consequences for unions and employers. some auto and auto parts manufacturer may have been shifted to Canada because of lower health care costs. On the technology issue. Deregulation in the phone industry led to the entry of AT&T Canada and Sprint Canada and competition in the market. such as airline and phone services. however. In fact. 21 If there is further privatization of the Canadian health care system in the future. these costs are a growing concern. For example. unions will seek to increase compensation. camera cell phones. because health care is largely funded through taxation. and safery. these costs may be a growing concern. or jobs requiring more skills. Legacy costs are the expenses associated with providing pensions and health benefits to retired workers. after deregulation Bell announced a reduction of 10 000 employees over three years. TE C HNOlOGY T he technological environment refers to developments in knowledge that lead to new products.26 Chapter 2 T he Environment At one time. employers will attempt to reclassify the job and reduce compensation. T he airline industry was deregulated in 1988. were regulated. but at the same time it may lead to job losses. claiming that safety would be compromised. For example. some industries in Canada. such as those surrounding the effects of video display terminals. and changes in methods of production. There would be one producer. and computerdriven call centres. job security can become a more important issue for the unions. Advances in . the industry is still subject to various restrictions that will impact employers and unions. unions face a dilemma: Technological change may lead to increased productivity that can be the basis for wage increases. health. Where technological change leads to jobs requiring fewer skills. The employers now have to be more concerned with increasing efficiency and reducing costs. T here is the potential for disagreement between the union and employer over compensation. Legacy costs were cited as one of the reasons for the bankruptcy in 2005 of Delphi. Unions have opposed this measure. For some older organizations. It might also give rise to concerns regarding ergonomics. without which it might have been forced to confront its unions with wage reductions or additional job cuts. It will lead to concerns regarding job security because of the possibility of workers being replaced by labour-saving devices or facilitating the transfer of jobs to lower wage countries. The company offered a plan to employees to take extended leaves. T here are some observers who claim that public sector pensions are a serious problem for Canada. 22 One of the ways to avoid the pension-cost problem is to switch from a defined benefit to a defined contribution pension plan. Illustrations of its impact on daily life are easy to find: MP3 players. 20 Legacy Costs l egacy costs are the expenses associated with providing pensions and health benefits to retired workers. but any proposal to ma ke such a change could be a contentious issue for unions and employers. This problem may not be as serious in Canada. some Canadian call centers have been closed when the work has been moved to India . which charged rates approved by a goverrunent commission such as the Canadian Radio-television and Telecommunications Commission (CRTC). Deregulation does not mean that all government rules or restrictions on a particular industry are abolished. 19 Deregulation has put pressure on unions and employers. For example. the industry has pressed the federal government to change the rules to reduce the number of flight attendants required. the world's largest manufacturer of auto parts. there are now more employees working at home than there are union members. Some employers are using global positioning systems to track the location of employees... SOCIAL ENVIRONMENT The social environment refers to the values and beliefs of Canadians relating to unions and employers. In the United States. some observers have suggested that information technology may pose a threat to unions. an issue unions and employers will have to address in collective agreements in the future. the item does illustrate one view of unions. Values and beliefs are important because they might affect the propensity of employees to unionize and the bargaining power of the union and employer. T he headline on a 1995 newspaper opinion piece proclaimed.. and provide services to members. In order to survive. In the United States. as opposed to personal contact with union members at meetings and social activities. Intra nets might be used to establish discussion groups and other devices to foster closer identification with the company and weaken any link to a union. a party that has the support of the public is in a stronger position. Unions have contended that the news media is slanted against labour." It is difficult to understand how unions could be viewed as the biggest problem facing Canada while the country faces other serious issues such as the environment and health care. many employers have developed intra nets to provide information and conununicate with employees. and media items such as the above may be one reason. Also. H owever. whereas information technology has allowed more workers to work away from the employer's location or to work for more than one employer. Although similar . However. It is also argued that the Internet and the Web pose a threat to the traditional rela tionship between the union and its members. will be of interest to unions in the future. Some Canadians may be more supportive of unions and collective bargaining than others. including the Internet and intranets.23 In call centers. unions will have to do more than simply provide services to their members. T hey will have to " transform themselves into a social movement which pursues social change . These may pose a threat to unions because they allow employers to develop more direct communication with employees. " 25 Accordingly. If employers monitor employee e-mail. a purpose not furthered by increased use of websites and online information. they will have to encourage more member involvement. which prohibit the mandatory deduction of union dues. T hese advances now allow more employers to monitor employee activity.Chapter 2 The Environment computerization have meant that some employees are now able to work at home. some states have passed right-towork laws. the present model of labour relations is based on employees working at one location for one employer. a report can be generated that indicates how much time an employee spends with each customer. This will mean that employees have less connection with their workplace and perhaps with a union." 26 T he piece criticized compulsory union membership and union dues and included comments such as "[Unions] make the country less competitive" and " Union leaders are behind the slow strangulation of our living standards. Technology will also lead to privacy in the workplace becoming an issue. T he values and beliefs of Canadians in general are important because they will affect employment and labour relations legislation.24 For example. " Over-unioniza t ion is the biggest problem facing Canada. An individual who disapproves of unions is less likely to join one. what should the response be from the union? T he effect of information technology. In some labour disputes. Unions can use websites to deliver information to employees they wish to organize. there is a negative relationship betw een approval of tmions and perceived union power. (b) I would tend to side with the employer in a labour dispute. (b) I have never been represented by a union. union approval goes down. unio ns receive fewer advantages through labour laws. 1. edited by Seymour Martin Upset. Alberta. and Ivan Katchanovski. then revisit them after completing your course to see if your thoughts have changed. (a) Unions are good for working people. and if it is perceived that union power is increasing. Labour Relations Issue 2-2 contains some questions. 4. 6. public support for unions declines. 2. (b) Unions are bad for working people. . Accordingly. (b) Unions are bad for Canada. however. similar to t hose of a national poll of Canadians. In Newfoundland. Cornell University Press. (b) Vote against a union. which ranks last. You should ask yourself these questions. If I was not represented by a union and the re was a vote in my workplace. yet there are more jobs and workers receive higher wages and benefits. -\ Labo~~WM~ww~~~4-----------------------------~ What are Your Values and Beliefs Relating to Unions? In each of the following statements. which ranks first amo ng the provinces in the survey. (a) Unions are good for Canada. Rafael Gomez. people do not want unions to be too strong. 5. Used by permission of the publisher. As perceived union power increases. (a) I approve of labour unions. Meltz. I would: (a) Vote for a union.27 Lipset and M eltz explain that this is by noting that people regard unions as a self-interested orga nizations that benefit their members a t the ex pense of society and consumers. (b) I disapprove of labour unions.Cha prer 2 The Environment 28 Are Some News Media Slanted Against Unions? Referring to a Fraser Institute study measuring labour market performance. Noah M. relating to values and beliefs about unions. (a) I have been represented by a union. It does not appear likely the Canadian social environment would allow right-to-work legislation to be passed. unio n protectionism is high and jobs are scarce. (a) I would tend to side with the union in a labour di spute. 2003: "In Alberta. Adapted from The Paradox of American Unionism: Why Americans Like Unions More Than Canadians Do but join Much Less. the following comment by Danielle Smith was posted on the Glo bal Television website on September 1. 7. choose e ither (a) o r (b). (b) Most of my family and close friends don't li ke unions." Do you think that this or othe r comments in the media ind icate a bias against unions/ legislation has been discussed in at least one Canadian province. it has not been enacted. 3. Copyright 2004 by Cornell University. Most of the Canadian population approves of unions generally. (a) Most of my family and close friends li ke unions. Provinciall y regul ated employer s are those subject to provincial employment and labour relations legislation .Chapter 2 The Environment 29 POliTICAl ENVIRONMENT The political environment refers to the Canadian political system and its effect on labour relations. The provinces have jurisdiction over 90 percent of the labour force. who are subject to the legislation of each province in which they conduct business. Feder all y regul ated empl oyers are those subject to federal employment and labour relations legislation . a remedy that may be available if the parties are unable to negotiate a first collective agreement. If the store is in N ova Scotia. a distinction must be drawn between federaUy regulated employers. T he divided jurisdiction in Canadian employment and labour relations matters has several implications for employers. which does not require notice prior to the conunencement of a strike. the preliminary question that must be asked is whether it is the federal or the provincial legislation that is relevant. and construction sectors. which provides for a 72-hour notice. Accordingly. If the store was located in Ontario. If the employer is a bank. T he federal government has jurisdiction over approximately 10 percent of the labour force. banking. the relevant legislation is the Labour Relations Act. who are subject to federal legislation. such as vacation entitlement. if any. T his may cause confusion and increase costs. seven more jurisdictions have provided for this remedy in their labour relations legislation. including interprovincial transport. unions may have to know about the federal legislation and the relevant legislation in each province. Similarly. we will discuss first-contract arbitration. and there might be 11 different rules on the same matter. If the employer is a retail store. retail. including the manufacturing. the relevant legislation is the Trade Union Act. unions. DI V IDED jURI SDI CTI O N The Constitution Act provides a division of powers or authoriry between the federal and provincial govenunents. which is discussed in the next section. banking and criminal are within the jurisdiction of the federal government. . and education is a provincial matter. and the answer to the question will depend upon which province the store is located in. Some of these implications might be viewed as advantages and others as potential disadvantages. For example. T he political environment in turn has a significant impact on the legislation that regulates unions and employers. For example. Depending on the em ployees they represent. A critical feature of the Canadian political environment is the jurisdiction of the federal and provincial governments in employment and labour relations matters. service. a union must give before it goes on strike. The divided jurisdiction has allowed provinces to deal with employment and labour issues differently and has provided an opportunity for experimentation. it is provincially regu hlted. suppose a question arose about how much notice. it is federally regulated and the relevant legislation is the Canada Labour Code. For employment and labour relations issues. Most issues that could be the subject of legislation are under the authority of either the federal or provincial governments. there is divided jurisdiction: The federal government has the authority to pass legislation regulating some employers and employees. which requires 48-hour notice to be given ro the Minister of Labour. and broadcasting. and provincially regulated employers. In Chapter 8. Whenever legislation is referred to. Employers who are provincially regulated and carry on business in more than one province will have to deal with different laws in each province. every jurisdiction has its own employment standards legislation. and the provinces have jurisdiction over other workplaces. and the labour relations system. First-contract arbitration was first adopted in British Columbia in the mid1970s. Since then. if a muon agreed to a contract that discriminated against women. These minimtuns provide a floor for the negotiation of collective agreements. and the employers. such as a mandatory vote in all applications for union representation. in 1995. labour legislation is under the jurisdiction of the federal governmenr. Employment standards legislation mandates minimum terms of employment such as minimum vacations. Human rights legislation prohibits discrimination and harassment and imposes a duty to accommodate. and the employer. Any contract terms relating to issues covered by employment st<mdards legislation must provide at least the minimum rights provided in the legislation. and we will see later that labour relations legislation in that province is generally less favourable to unions. For example. The situation in Ontario in the 1990s illustrates this. and when there can be a strike or lockout.the union could later challenge the term that it had previously agreed to. human rights. if the collective agreement did not mention pregnancy leave. on the other hand. holidays. All labour relations statues provide that a collective agreement must have a term of at least one year. leading to changes in labour policy that are less favourable to unions. TI1e New Democratic Party. successor to the CCF. It has been noted that the provinces have distinct political culntres. If the contract does not refer to an issue covered by employment standards legislation. the term is not binding. LEGAL ENVIRONMENT Empl oyment standards legislation provides for minimum terms of employment. and wages. . the process can work in reverse. But in the next election. the p-arties must comply with the relevant labour relations legislation. was established in 1932. In the United States. a federal political party supporting labour. If the union and the employer purported to agree to a shorter agreement. the process that must be followed to tnlionize. 28 The Canadian Commonwealth Federation (CCF)." We will see below that tllis duty may require muons and employers to make exceptions in the course of administration of a collective agreement. In some other provinces. In Canada. In 1990.30 Cha prer 2 The Environment It has been observed that the Canadian parliamentary system and the presence of a social democratic party supporting labour have led to legislation being passed that is favourable to unions. it is possible for a pro-business govenunent to be elected in a province. continues to support labour. such as providing for the interim reinstatement of employees pending a hearing by the Labour Relations Board. labour reforms favourable to unions have been enacted by minority govenunents under pressure from the NDP at the federal level and in some provinces. they may have to agree to a variation on scheduling or overtime rules to meet their human rights obligations. Again. For example. and labour relations legislation. the NDP has formed a government and enacted legislation more favourable to unions. the contract would be deemed to have a one-year term that complied with the legislation. and it initiated labour reforms favourable to unions. employees would still be entitled to the leave provided in the employment standards legislation that covered the workplace. Hwnan rights legislation prohibits discrimination and harassment and imposes a "duty to accommodate. employees. The legal environment is critical to Canadian labour relations. The parties cannot agree on enforceable contract terms that violate human rights legislation. Labour rei ations Iegisl at ion regulates the relationship bel\veen unions. For example. employees. rules regarding the negotiation and administration of the collective agreement. a Progressive Conservative government was elected that promptly reversed the previous reforms and made further changes unfavourable to unions. It must be noted that it is not possible to contract out of employment standards. Alberta is the most conservative province. It dictates who can mlionize. Labour relations legislation regulates the relationship between the muon. employees are entitled to the statutory minimum. Although the Canadian parliamentary system and the division of authority between the federal and provincial governments make it easier for reforms to be made. That is. and labour reform legislation has been stalled in the Senate because it is unable to gain the support of a majority. an NDP government was elected. mb.callaws/statutes/ ccsm/h 17 Se.gov. and labour relations legislation. Figure 2-2 lists websites for human rights legislation and human rights commissions.ca/engli sh/ index.htm http:/AV'vV'vv. gov.calhrc-cd p/ index-e. negotiation of the agreement (Chapter 8). htm I New Brunswick Human Rights Act http:/AV'vvw.shtml Prince Edward Island http:/AV'vV'vv.bc. ns. In this chapter.calshrd Quebec Charter of Human Rig!Jts http:/AV'vV'vv.ohrc. The Co1nission websites are good sources of information FIGURE 2-2 Human Rights legislation and Commissions Legislation Commission Canad ian Human Rights Act http://la ws. assembl \' .ca/h rd eng Iish/index.on .calhrc/ Nova Scotia Human Rights Act http:/AV'vV'vV. asplnoeudl =0&noeud 2=0&cle=0 Rights Code Human Rights Code Human Rights Act and Freedoms 31 . T his legislation and the Canadian Charter of Rights and Freedoms are the basis for the law relating to discrimination in each jurisdiction. human rights. and the administration of the contract (Chapter 9).gov.pdf http:/AV'vV'vv.cal DBLaw!/Statutes/English/90h 19_ e.nl.qc .cal AIberra Human Rights Act http://www.calen/comm un/ doc!/charter.qp .ca/0062/acts/acts/ h-11.gnb .e-laws.gov. nf .htm http :/AV'vV'vv. pe. ca/h umanright!/ Ontario Human Rights Code http:/AV'vV'vV.qp.sk.ca/1egisl aturellegd statute!/hu manrt.bc.pe .gov.pdf http:/AV'vV'vv. HUMAN RIGHTS LEGISLATION All jurisdictions have their own human rights legislation. ns.ca/Legislat ion/ sr/statutes/h 14.cfmI page-A25PS. asp Newfound land and Labrador http:/AV'vV'vV.cdpd j.cfm&leg_type=Acts& isbncln=97807797 44060 http:/AV'vV'vv. gov.ca/en/home.htm http:/AV'vV'vv. employment equity.callaw/statutes/ pdf/ h-1 2. H uman rights law is shaped by the decisions of courts and arbitrators who interpret legislation and the Charter.cal Manitoba Human Rights Code http://web2. mb.pdf http:/AV'vV'vv.cal British Columbia Human http://www. justice.cal574.ca/human_ rights_code/default. A human rights conunission is responsible for the enforcement of the legislation in all jurisdictions except British Columbia and Ontario.Chapter 2 The Environment In addition to employment standards.caleng/H-6/ index.alberta.gnb. there are statutes that affect the parties in areas such as health and safety. The specific provisions of labour relations legislation and employment standards legislation are described as needed in subsequent chapters relating to collective bargaining rights (Chapter 6).cdpdj.on. we will refer to human rights legislation that affects the parties and the Canadian Charter of Rights and Freedoms.htm http:/AV'vV'vv.qc.htm http:/AV'vV'vV. bchrt.gov. and workers' compensation.sk.html http:/AV'vV'vv.gc.gov. ab.albertahu manr ights.gov.chrc-ccdp.gov.ca/hu manr ights/ Saskatchewan Human Rights Code http:/AV'vV'vV.caldocu ments/ English/Statute!/Statutes/S2 4-1 .php http :/AV'vV'vv. pay equity.bchrt. New Brunswick Human Rights Act. Nova Scotia Human Rights Act. 9(1 ). s.1. s.. Figure 2 -3 lists the grounds of discrimination. s. s.32 Cha prer 2 T he Environment relating to human rights. -~ ~ -- ~ E ·. 3. this provision has been held to be a violation of the Charter. 1 (l)(d).5 0 0 (18+) ~ . British Columbia Human Rights Cock. Sources: A lberta Human Rights. It is highly reconunended that you visit the site for your province . However. A lthough there is no separate gro und of discrimination in other jurisdictions.Mea ning of Discrimina tion T he human rights legislation in each jurisdiction sets out prohibited grounds of discrimination. Newfoundland and Labrador Human Rights Code. Refer to the Vill'en case at the beginni ng of this chapter.. Chapter 1. For example. Canadian Human Rights Act.. s. . s. 7(1).. dependence on alcoho l or drugs is a disability. Saskatchewan Human Rights Cock. It is important to note that if an individual is treated differently or even unfairly. s. 9(2). 2 (m. s. but the basis for the differential treatment is not one of the grounds of discrimination provided in the relevant human rights legislation. ss. <ll 0 z cou Actua l o r Presumed association with a protected gro up Age Ancestry or Place of origin CiviI Status Dependence on Alcohol or Drugs Family Status Gender Identity Language Marital Status National or Ethnic O rigin Nationality or Citizenship Pardoned conviction PhysicaVMental Disability Pol iti cal Belief Race or Colour Record of criminal conviction Religion Sex Sexua l Orie ntation Social condition/origin Source of income 8 ~ -o ·.:!1 (18+) • • • (18+) • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 1The Canadian Human Rights Act allows employers to require emp loyees to retire at the normal age of retirement for the position. . s. and include guides relating to the application of the legislation. 3. • • • • (19+) • • • t'U a-.Ol ). 10. 2 The Canadian Human Rights Act specifically provides that dependence on alcoho l o r a drug is a gro und of discrimination. 5. s. 5.2. O ntario Human Rights Cock. 18. Manitoba Human Rights Code.. and the employer's decision has not been influenced by one of the prohibited FIGURE 2-3 Prohibite d Grounds of Discrimination in Employment by Jurisdiction - -o . there has not been discrimination. if an employer does not hire an applicant because the employer perceives that they do not "like" the applicant. Prince Edward Island Human Rights Act. An individual or group is discriminated against if they are treated differently on the basis of one of the grounds of discrimination.= ·~ ~ ::: (19+) • • "u -o c: -- . Citizenship & Multiculturalism Act. Quebec Charter of Human Rights and Freedoms. 13. Age. Types or Forms of Discrimina tio n There are two forms of discrimination that require clarification: direct discrimination and indirect discrinlination. A broken arm or a short-term depression is included within the definition. and mandatory retirement has been eliminated for provincially regulated employers. H owever. The upper limit on age has been removed in all provinces. Disability includes both physical and mental impairments. dyslexia. height. Direct discrimination refers to a rule or conduct Direct d iscriminatio n refers to a rule or conduct that is i mentionally discriminatory. The grounds of discrimination can change over time and across jurisdictions. it would be discriminatory if an employer terminated an employee because it thought the employee was an alcoholic. Family Status. An impairment does not have to be permanent to be a disability. In the leading case. even though that was not actually the case. This was the legal basis for mandatory retirement. and a detailed review of the grounds of discrimination is beyond the scope of this text. the proposition that there has to be a serious interference with parental obligations to establish discrimination was rejected. or other substances. even though he or she may not actually have one. When an employee turned 65. An evolving issue is whether an employee's child or elder care responsibilities could lead to discrimination claims. fear of flying. T he belief does not have ro be a tenet of a recognized religion. This issue should be monitored for future developments. which are discussed below. Is it discrinlinatory if an employer imposes a change in hours that conflicts with the employee's child care arrangements? The decisions on this issue have gone in two different directions. However. drugs. Many of the grounds of discrimination such as race are self-explanarory. gender. Religion. It is important ro note that if it is perceived that someone has an impairment. It was held that the employee's beliefs were within the term religion as defined by human rights legislation. AIDS.ordinary childcare responsibilities would not lead to a finding of discrimination.Chapter 2 T he Environment 33 grounds of discrimination such as race. For example. In one case. This is subject to the provisions of the Charter. Disability. depression. Ind irect discriminatio n refers to a neutral rule that has an adverse impact on an ind ividual because of prohibited grounds of d iscriminatio n. The condition requires some severity. in a federal human rights complaint. T he opening incident illustrated how mandatory retirement was struck down for federally regulated employers because it was found to be a violation of the Charter. H uman rights tribunals and the courts have held that in order for employees to show that there is discrinlination on the basis of religion. For example. Family status refers to being in a parent and child relationship. or religion. . an employee adhered to the Wiccan (witchcraft) faith that views Halloween as a holy day. drug dependency. TI1e 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. there has not been discrimination. Disability includes dependence on alcohol. Until recently. they only have to show that they have a sincerely held religious belief. it was held that there would have to be a serious interference with a substantial parental obligation to establish discrimination. it may be unintentional. a claim of discrimination by a single father who could not work overtime because he had to pick up his son at daycare was dismissed. he or she lost the protection provided by the legislation relating to age. there is discrimination if different treatment is accorded the person because of tllis belief. alcoholism. minor ailments such as a common cold or the flu are not disabilities. a few require clarification. and is a significant ground of discrimination in employment. human rights legislation in some provinces defined age by referring to an upper limit of age 64. and other conditions. Changes in timekeeping o r attenda nce requ irements 8. In a leading case. there is a duty to accommodate that requires measures to be adopted preventing people from being adversely affected by workplace requirements or characteristics on the basis of a prohibited ground of discrimination. T he issue is whether the requirement has an adverse impact. Refusing to promote someone because of their gender or because they were over age 45 would be direct discrimination. Here the duty to acconunodate might involve a change in hours for such employees. Training to facilitate a move to another job 2. It may be unintentional. There is a possible way ro defend against a claim of discrimination. does not matter. or the physical layout of the workplace. there is no duty to acconunodate. howevet. the terms of a collective agreement. a person in a wheelchair has a disability as defined by human rights legislation. Requiring all employees to start work at 7 a. Transfer to an alternative job 10. work standards. Changes in the design of the workplace. Allowing a period of absence from work 7. and therefore it is discriminatory.m. Changes in shifts o r hours of work 4. Reduced hours 5. Indirect discrimination involves a rule or requirement that does not appear to discriminate. Modifications of job duties. If there is no discrimination." Duty to Accommodate The duty to accommodate requ ires measures to allow the participation of individuals protected by human rights legislation. A height requirement will have an adverse impact on women. Training of other employees to allow them to work w ith the employee 3. could adversely affect pregnant employees with bouts of morning sickness. The absence of malice. For example. Considerations 2-1 Possible Measures to Accommodate 1. Demotion to a lower job level 11 . Some measures that might be used in an accommodation are provided in Key Considerations 2-1. even though there is no intention to discriminate. Pursuant to human rights legislation. incl uding eq uipment and tools 9. the requirement in question was that all employees were required to work on Saturdays. However.34 Cha prer 2 The Environment that is discriminatory on its face. or the possible good intentions of the person who imposes the rule or requirement. Requirements or characteristics that might have an adverse impact include rules. howevet. This rule does not appear to discriminate. such as removing some tasks or prov id ing assistance 6. and a rule prohibiting beards will have an adverse impact on Sikhs. Transfer of the employee out of the bargaining unit c . the requirement has an adverse impact on an individual or group protected by human rights legislation. prevention of an adverse effect involves accommodation such as installation of a wheelchair ramp or a special desk. It should be noted that the duty to accommodate arises when there is discrimination. in order to understand this defence we must first consider the " duty to acconunodate. it has an adverse impact on members of a religion who have Saturday as a day of religious observance. it looks like all employees are treated equally. it is intentional. Some seemingly routine workplace requirements may give rise to a duty to accommodate. The size of the employer is also a factor.Chapter 2 The Environment Although the duty to accommodate commonly arises in connection with disability. . it was thought that the duty did not require employers to create a position for an employee. Interchangeability of the workforce and faci lities Safety 5. Although the primary obligation to accommodate lies with the employer. discussed below. Determining the point of undue hardship is the critical issue. Financial cost 2. accommodation is a multi-party responsibility. including religion. it would likely be an undue hardship to require the employer to install an elevator. an employer attempting to establish cost as the basis of undue hardship must present real financial evidence. Thus. not just vague references to increased costs. The law regarding what is undue hardship is still evolving. The factors considered in determining if this would involve an undue hardship have not been authoritatively established. 35 . Effect on employee morale 4. the size and financial health of the organization would be factors. Factors Determining Undue Hardship. Provisions of any collective agreement 6. Unions and other employees do not have to undertake measures that would impose undue hardship. Size of the employer's operations 3. other employees. and the employee seeking accommodation all have obligations. Where there are more employees who have the ability to do various jobs. availability of outside sources of funding.tvloreover. There is a limit on the extent of this duty. in some cases accommodation could now involve creating a job that did not previously exist. Although the cost of accommodation is a factor. and safety. Considerations 2-2 Factors Determining Undue Hardship 1. the costs involved would have to threaten the viability of the organization. A brief example will iUustrate the nature of the issues involved. it might arise in COJUlection with other grounds of discrimination. if an employer rented an office on the third floor of an older building that did not have an elevator. measures that would cause them undue hardship. However. If an employer had a ground-floor office with an entrance that had two steps. The law does not require an employeJ. to constitute tmdue hardship. or other employees to undertake. The interchangeability of the workforce and facilities relates to the flexibility in the operations of the employer. it will be easier to accommodate through measures such as rescheduling. However. Some human rights statutes refer to only three factors: cost. Courts and arbitrators have referred to a broader list. because larger employers have a larger pool of replacement workers. The factors to be considered are discussed below. or the modification of job duties. A small organization or a firm that was in financial crisis might be able toestablish undue hardship where other organizations could not. lighter workloads. At one time. as part of an accommodation. Measures that would impose an undue hardship for those who would have to carry them out do not have to be undertaken. Unions. A leading Supreme Court of Canada decision has indicated that the factors listed in Key Considerations 2 -2 might be referred to in determining undue hardship. the installation of a wheelchair ramp would not involve undue hardship. union. employers are expected to assume significant costs. so that the requirement is allowed although it is discriminatory. It is possible that the provisions of a collective agreement such as seniority or scheduling might pose a problem when accommodating employees. Although employee morale has been cited as a factor in a leading case. and 3. To show that the standard is reasonably necessary. Simply put. It is noted that other measures that would not require a variation from a collective agreement must be exhausted before a variation can legally be contemplated. that the employer adopted the particular standard in an honest and good-faith belief that it was necessary to the ful fillment of that legitima te work-related purpose. Defence: Bona Fide Occupationa l Qua lification or Requirement A BFOQ o r BFOR is a job requirement that the employer can establish is essential. T he objections of employees would have to relate to real hardship such as job loss. however. they cannot rely on that obligation to avoid accommodation. or excessively onerous duties. Although employers have an obligation to provide a safe workplace. In one case. and appears on the list in Key Considerations 2 -2. 2. however. T he extent to which the provisions of the collective agreement may have to be varied in the course of accommodation is discussed in Chapter 9. In the course of accommodation. If it is established that the rule. this would be indirect discrimination because it has an adverse impact on women. and the employer was ordered to hire the applicant. it must be demonstrated that it is impossible to acconunodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. there may be defence available to the employer. that the employer adopted the standard for a purpose rationally connected to the performance of the job. an applicant for a firefighter position was denied a job because of a heart condition that posed a very small risk of stroke. A human rights complaint was upheld. The decision provided as follows: An employer may justify the impugned standard by establishing on the balance of probabilities: 1. Other employees are expected to bear some hardship in the course of an accommodation. it has been given very little emphasis. When it appears that there is discrimination. before they would be viewed as an undue hardship. an employee with less seniority might require a particular shift as part of an accommodation. practice. T he extent to which a safety risk will be tolerated as part of an accommodation is not yet clear.29 . Note that prior decisions and commentary will have to be read subject to this case. it is permissible even if it is discriminatory. A Supreme Court of Canada decision in September 1999 laid out a revised approach to determining if a BFOR has been established. a BFOR is a rule or requirement that the employer can show is essential to the job and cannot be avoided. If an employer required that employees be at least 5'10" tall for a job. it would be permissible if the employer could show it was essential. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. T he collective agreement might provide that employees be given a preference in shifts on the basis of seniority. employers are expected to tolerate some risk in the workplace and allow the employee seeking accommodation to assume some risk as well. or policy in question is a bona fide occupational qualification or requirement (BFOQ or BFOR). T his means that employers should educate employees with regard to the duty to accommodate. An employer will not be allowed to claim that complaints from other employees impose an undue hardship unless the complaints are substantial and real.36 Cha prer 2 T he Environment T he extent to which an accommodation poses a safety risk to the employee seeking acconunodation or other employees is a factor. the rule could be a BFOR if it is established that the rule is essential and the employee cannot be accommodated. the situation should be dealt with in two separate steps. Both of these rules are discriminatory. The arbitrator ordered Meiorin to be reinstated.Chapter 2 T he Environment 37 The principle that a rule or requirement is a BFOR only if the employee cannot be accommodated is iUustrated by the following two scenarios. She had been working for three years and had a good performance record w hen the prov ince estab lished new fitness tests for her job. Situation 1: A large employer has a rule that employees must work on Saturdays.that is. and an appeal was granted. R. Second. in Situation 2 the rule might be a BFO R. It is not possible to avoid the eyesight requirement.E. there might be indirect discrimination on the basis of disability. the rule cannot be a BFOR. she fa iled to meet the final requirement that she be able to ru n two-and-a-half kilometres in 11 minutes-her best time was 11 minutes 49. it was established th at because of physiolog ical differences women have a lower aerobic capacity than men. consider whether the employer can establish the requirement as a BFOR. Meiorin's case was appealed to the Supreme Court of Canada.. O ne of the requirements established by the Court was that the ru le or standard must be necessary for the safe and efficient performance of the work. the key question is: Can the employee be accommodated? It would appear that in Situation 1 the employee might be accommodated. 1British the arbitrator found that the employer had not establ ished that Meiorin's inability to meet the standard constituted a safety risk to herself.U. some individuals may not have a licence because they do not ha ve the eyesight required. In Situation 1.L. revised the law regarding discrimination and established a three-step test to determ ine if a rule or requirement was acceptable despite adverse impact. other than to point out that unions and employers may need to address the issue of a possible backlash from some employees who do not understand or agree with the accommodation process. Meiorin's union fi led a grievance challenging her dismissal. The employer in this particular case had failed to meet that requirement. it does not appear that the person can be acconunodated. it may be claimed that accommodating some individuals is providing them with preferential treatment. Situation 2: An employer establishes a rule that all drivers must have a valid licence. The arbitrator found that the aerobic standard had a disproportionately negative effect on women and accordingly was discrimi natory. Whenever the question of whether a BFOR has been established arises. Columbia (Public SeiVice Employee Relatio ns Commissio n) v.G . if there are no other jobs the person can be moved to. there might be indirect discrimination on the basis of religion. T herefore. B. her co-workers. First .4 seconds-and was di smissed. Furthermore. most women would not be able to do so. in a groundbreaking decision. consider whether the requirement is discriminatory. some individuals ca nnot work on Sa turdays because of thei r religion. A t the arbitration hearing. which. or the public. "~\ Labo When Is a Discriminatory Requirement a BFOR? Tawney Meiori n was a forest firefighter working for the prov ince of British Columbia. therefore. T he duty to accommodate might give rise ro claims of reverse discrimination. The Court ordered that the arbitrator's decision reinstating Meiorin be restored. ask whether there is direct or indirect discrimination involved.S. However. Meiorin passed three of the four tests adopted by the employer. Although most men could meet the employer's requirements w ith training. The employer went to the British Columbia Court of Appeal. In both situations. Assuming for the moment that the rule can be shown to be essential in both situations. In Situation 2. In Situation 2. c .C. Saturday work might be assigned to other employees. (4th) 1. Tllis is an interesting issue that will not be referred to fu rther. 176 D. sex. When the Supreme Court of Canada considered legislation that allowed mandatory retirement. so we will refer to essential points regarding the Charter's effect on labour relations. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion. it was held that the Charter did not apply to a university even though it received govenunent funding. T he Charter guarantees specified rights and freedoms . 15. subject to two limitations or exceptions. T he Supreme Court of Canada ruled that the Charter did not apply to this situation because it was a private dispute between the employer and the union. which includes freedom of expression and association. This means that the Charter is relevant if legislation is being applied or if the government is involved as a party. national or ethnic origin. In a situation where an employer sought an injunction to prevem picketing by a union.justice. without discrimination based on race. opinion and expression. " This means that a right provided in the Charter may be violated if it is established that it is essential to do so for the benefit of society. and section 15. because the university established policy independent of government.html#l T he Canadian Charter of Rights and Freedoms has been part of the Constitution since 1982. and the Charter only applies to government action.38 Chapter 2 T he Environment THE CA N A DI A N C H A RTER O F RI G HT S A ND FREED OMS Website providing the Canadian Charter of Rights and Freedoms: laws. in particular. (c) freedom of peaceful assembly. age. T he clause allows a government to pass a law that would violate the Charter if it expressly declares that the legislation is being passed despite the provisions of the . The law relating to the Charter is complex and evolving.ca/enjconst/ annex_e. community colleges have been held to be part of government and subject to the Charter because they are subject to government control. belief. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and. In contrast. religion. colour. the union argued that an injunction would violate the freedom of expression provided in the Charter.gc . Section 1 of the Charter states that the rights it provides are "subject only to such reasonable limits prescribed by law as can be demon strably justified in a free and democratic society. which provides for equality rights and prohibits discrimination as follows: 2. (b) freedom of thought. Mandatory retirement was viewed as creating opportunities for younger employees and as a way to deal with the potential problem of aging employees. including freedom of the press and other media of communication. there might be valid reasons for allowing the rule to stand. however. it is recognized that this limit is necessary. and (d) freedom of association. The second limit on Charter rights is a "notwithstanding" clause provided in Section 33. T he Charter does not apply to private activity. Limita tions on Charter Rights Any provincial or federal legislation that violates a Charter right is invalid. T he classic illustration of this is that a law that prohibits shouting " Fire!" in a crowded theatre violates freedom of expression. The Charter rights that will be significant to labour relations are found in section 2. In one case. or mental or physical disability. it fou nd that although requiring individuals toretire at age 65 is discriminatory. T he problem will be what " government" means. Applica tion of the C harter Section 32 of the Charter limits its application to legislation and government action. T he previous section dealing with human rights noted that in order to find discrimination contrary to human rights legislation. it has been successfully relied upon to extend benefits to same-sex couples. The declaration that legislation operates notwithstanding the Charter expires after five years. a government could pass legisla tion ending a strike in any event by invoking the notwithstanding clause. or impose new collective agreement terms without consulting unions. The trial court and the British Columbia Court of Appeal rejected the muon's claim that the legislation violated the Charter on the basis that the Charter 39 . The legislation made changes to the health system. Collective Barga ining. Prior to 1996. Some of the impacts of the Charter established to date will be reviewed. He could not bring a complaint under Alberta human rights legislation because at the time sexual orientation was not included as one of the prohibited grounds of discrimination. and bumping rights. and to remedy this sexual orientation was to be "read in" to the Canadian Human Rights Act. Bell Canada refused to provide benefits to same-sex couples. Tllis led to the layoff of hospital support staff who were su bsequendy hired by independent service providers and paid less money to do the same work they had previously been doing. the Charter has been used to expand the protection against discrimination provided in human rights legislation. For example. The legislation that allowed discrimination on the basis of sexual orientation violated the Charter. the employer's refusal to provide benefits to same-sex couples was deemed unlawful discrimination. T he legislation was passed without any consultation with unions. including the nullification of previously negotiated collective agreements that provided employees protection against contracting out. the Canadian Human Rights Act did not include sexual orientation as a prohibited ground of discrimination. British Columbia passed the Health and Social Services Delivery Improvement Act (Bill 29). however. an individual in Alberta was terminated because of his sexual orientation. it could be renewed. the Supreme Court of Canada held that the freedom of association provided in section 2(d) did not include collective bargaining. although to this point it has been held t ha t the right to strike is not protected by the Charter. Implications of the Charter The implications of the Charter are still evolving. 30 T hese cases illustrates that the Charter has been used to expand the protection provided by human rights legislation. In June 2007. there are several cases in the legal system that could affect the law relating to the Charter. in Health Services and Support. it must be established that a prohibited grounds of discrimination is the basis of the differential treatment. A collective agreemenr at Bell Canada provided that the employer would not unlawfully discriminate. This meant that the Charter did not prevent governments from passing legislation that nullified previously negotiated collective agreements. an arbitrator ruled that the legislation had to be applied in view of the Charter. the Supreme Court overruled some of its previous decisions and held that collective bargaining rights were protected by section 2(d) of the Charter. Although the Canadian Human Rights Act did not protect the employees. The employee challenged the dismissal. Accordingly. layoffs. Expansion of Human Rights Protection. In a few cases. It was noted that this was subject to the application of the Charter. For example.Chapter 2 The Environment Charter. and the Supreme Court of Canada found that the failure to include protection against discrimination on the basis of sexual orientation was contrary to the Charter and ordered that the grounds of sexual orientation be read into the Alberta legislation. In another importanr case. Facing a crisis in health care in 2002. As this is written. British Columbia. In the first cases considering the Charter.Facilities Subsector Bargaining Association v. In one case. this would have been a situation where section 1 of the Charter would have been relied upon to allow the legislation to stand. Some labour relations statutes prohibit specified workers from unionizing." and it remains to be seen how this will be interpreted in the future. the court reversed itself and held that the Charter protected collective bargaining when there was "substantial interference" by goverrunent. Having determined that there was a violation of a Charter right. The court found that the provisions relating to contracting out. This legislation was challenged pursuanr to the freedom of association provisions of the Charter. at the time this is written that legislation is the subject of another . the court then considered the issue of whether the infringement was justified by section 1 of the Charter and found that it was not. and bumping rights did interfere substantially with the union's bargaining rights and were therefore unconstitutional. The Health Services case will be revisited in Chapter 11 when we consider the public sector. When a construction union is certified to represent an employer's workers.32 Union Dues.that he did not support violated the Charter's provision for freedom of association. the provincial agreement applies to those employees. the Ontario L abour Relations Act prohibits agricultural workers from organizing. to agricultural workers. T he Ontario government was ordered to enact legislation that aU owed agricultural workers to organize. In a case that is critical unions. while minor parts of the legislation such as changes to schemes for transferring and reassigning employees did not. The Act further provided that a "non-construction" employer such as a school board could apply to the Board to seek a declaration that a trade union no longer represents its employees and that the collective agreement ceased to apply to the non -construction employer. it suspended its declaration for 12 months to allow the government to deal with the situation. however. For example. including the right to strike. 31 T he Ontario legislation provides for a system of province wide bargaining in the construction industry. The Right to Strike.33 T he court also indicated that even if a Charter right had been violated. guaranteeing employees the rights to present demands to government employers and engage in discussion. Ontario subsequemly passed legislation that gave agricultural workers limited rights to organize and make representations to employers. The Board held that the provisions of the Act that allowed an employer to obtain an order providing that the employer was no longer bound by a collective agreement with a construction union were unconstitutional. It protects against "substantial interference.40 Cha prer 2 The Environment did not protect collective bargaining. The Supreme Court of Canada held that the mandarory deduction of union dues did not violate the freedom of association provisions in the Charter. The extension of Charter protection to collective bargaining is a dramatic development in the legal enviromnent. T he court held that provisions of the legislation that violated the Charter were unconstitutional and therefore invalid. It does not guarantee that unions will be able to achieve their objectives. The constitutional right to collective bargaining is a procedural one. layoffs. T he Supreme Court of Canada has held that the freedom of association provided in the Charter does not include the right to strike. Unions have unsuccessfully challenged legislation that restricts or denies the right to strike. On a further appeal to the Supreme Court. the Ontario Labour Relations Board applied the Health Services case and held that sections of the Ontario Labour Relations Act were unconstitutional because they amounted to a substantial interference with the freedom of association. an employee claimed that legislation providing for the mandatory payment of union dues that were used to support causes--such as the New Democratic Party. to Right to Organize. 34 It should be noted that the court did not order the province to extend full collective bargaining rights. however. In summary. school boards issued directives to teachers stating that teachers were not to post certain material on teacher bulletin boards in areas in schools where students and their parents could see them. In 2001. which prohibited secondary picketing. The leaflets informed customers about the dispute with Kmart and asked them to shop elsewhere. and said that the prohibition of leafleting was a violation of the Charter's freedom of expression provisions. The freedom of expression provided in the Charter has labour relations implications. The Supreme Court of Canada distulguished between leafleting and picketing.MP from unionizing has been found to be a violation of the Charter. The union successfully challenged the employer's directive on the basis that it violated section 2(b) of the Charter.36 This case illustrates that legislation that attempts to regulate union activity must not encroach upon the freedoms (such as freedom of expression) guaranteed by the Charter. negotiations were underway for the renewal of a provulcial collective agreement covering public school teachers in British Columbia. Subsequently. It is possible that employers could argue that such restrictions violate the freedom of expression provided for in the Charter. An employee challenge of mandatory deduction of union dues also failed . However. the union provided information kits to teachers that included cards referring to the u1crease in class size that could be distributed to parents duru1g parent-teacher ulterviews. Legislation that prohibited members of the RC. As part of a campaign to pressure the government to change its policy. The union leafleting ran afoul of the British Columbia Labour Relations Code. announced that if no agreement was reached by the end of January 2002 it would strike. Leafleting and Other Forms of Expressio n. The government also passed legislation that removed class size from the issues that the employer and the union could negotiate. we will see that labour relations legislation imposes restrictions on what employers are allowed to say to employees during the course of a union organizing campaign. and perhaps extendu1g the right to organize. the first cases decided under the Charter did not change labour rela tions. The union representing the teachers. the key issue will be whether any restrictions on the employer's freedom of expression can be justified pursuant to section 1 of the Charter. Secondar y picke ting is picketing at a place other than the location of the labour d ispute. the British Columbia Teachers Federation (BCTF).picketing at a place other than the location of the labour dispute. The extension of Charter protection to collective bargaining in 2007 is a significant development. In the course of contract negotiations. and parent-teacher interviews could not be used to discuss class size issues or to distribute certau1 documents produced by teachers or the BCTF relating to class size or collective bargau1ing issues. 35 T he extent to which unions will be able to use the Charter to expand the right to organize is an issue that will continue to evolve. employees at two Kmart stores in British Columbia were locked out. The Charter has also been relied upon to protect freedom of expression during the term of a collective agreement. . The union challenged the ban on leafleting as a violation of the freedom of expression. In the event of such a challenge. The union engaged in leafleting at Kmart stores other than the ones involved in the labour dispute.Chapter 2 The Environment 41 court challenge by the United Food and Commercial Workers Union. Future developments relating to the Charter must be monitored. which guarantees freedom of expression. Union attempts to rely on the freedom of association provisions in the Charter to challenge legislation restricting the right to strike and federal government wage controls were not successful. protecting freedom of expression. The provincial government headed off a strike just before the deadline by passing legislation that imposed a new collective agreement. In Chapter 6. subsequent cases have established that the Charter can affect labour relations by extending the protection against discrimination in human rights legislation. older employees. . p. p . Key Te rms bona fide occupational qualification or requirement (BFOQ or BFOR). p. and will affect the employer's response to unionization. 29 real wages. p. they must be aware of and educate their constituents about human rights legislation and the duty to acconunodate. 25 deregulation. p. p. p. 4. Unions and employers must keep up with legal developments that affect labour relations. 33 inelastic demand. Economic developments may force unions and employers to modify their relationship from an adversarial contest of wills to a more cooperative relationship. 24 Review Questions 1. p. 25 duty to accommodate. such as technological change. 19 non-standard work. 23 price elasticity of demand. p. p. Explain how and why the general economic environment might affect one firm differently than another. p. Distinguish between a good or service with an elastic demand and one with an inelastic demand. 19 monetary policy. 30 legacy costs. p. p . 41 trade liberalization. Several aspects of the environment will affect the desire and ability of employees to join unions. In parricular. Employers and unions must consider the economic enviromnent when negotiating collective agreements. T he social environment will affect employees' views regarding whether un ionization will be beneficial. 29 fiscal policy. How might the macroeconomic environment affect unions and employers? 2. The political and legal environment may make it more or less difficult for employees to join a union. p. 25 direct discrimination. 3. 21 provincially regulated employers. 30 indirect discrimination. Environmental factors will affect the parties' negotiating objectives and the content of collective agreements. As much as possible. 21 labour relations legislation. p. 19 secondary picketing. 20 globalization. 34 elastic demand.42 Cha prer 2 The Environment Implications for Pra ctice 1.30 federally regulated employers. p. and female employees. How does the dependence of the Canadian economy on exports affect labour relations? 3. 5. p. the parties should forecast future environmental developments. p . p. p. T he economic environment will affect the employees' perceived need for a union. p. 21 employment standards legislation. Distinguish between the possible bargaining priorities of the following employee groups: younger employees. 23 downsizing. 26 macroeconomic enviromnent. p . so that collective agreements will adequately protect their interests. 2. p . 33 diversity.36 deindustrialization. 4. p. 20 nominal wages. p. p . 24 human rights legislation. 18. 3. Explain how government economic policy might affect unions and employers. 14. Explain and provide an example of the concept of a bona fide occupational requiremem. 9. the employer. What are the implications of NAFrA for unions and employers? 10.65) employees? Explain. and provide an example of each. 11. Do you think there is a difference between the work preferences of younger (age 20. Why has it been more difficult for w1ions to organize part-time employees? 8. 2. Do you think information teclu10logy poses a threat to unions? 4.Chapter 2 The Environment 6. What is the "social environment. 16. What issues might technological innovation force unions and employers to deal with? 12. would you prefer that the product the employer produces have an elastic or an inelastic demand? Explain. Discussion Questions 1. the trade union and the employees in the bargaining unit must continue the supply of services.4(1) of the Canada Labour Code. 17. Reference has been made to Section 87. Do you have a generally positive or negative view of unions? What is the basis for your opinion? 5. What do the phrases "federally regulated employer" and "provincially regulated employer" mean. operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public. 7. and employment standards legislation. all of whom were women. Distinguish between direct and indirect discrimination. which states: " During a strike or lockout not prohibited by this Part.30) employees and older (age 55. If you were a union official. Distinguish between labour relations legislation. Explain what " the duty to acconunodate" means. The cost of parking at the workplace or nearby was $50 per month. Describe five economic trends or issues that might affect labour relations." and why is it important to labour relations? 13. and provide an example of an employer meeting this duty. A company that provides medical laboratory testing services in four provinces is planning for a possible strike at one of its locations. human rights legislation. If you were a labour relations officer for the employe~. Outline important features of the labour market that could affect labour relations." What implications does this provision have for the employer and the union? 6. how would you respond to this grievance? 43 . Identify labour relations issues that have or could be affected by the Charter of Rights and Freedoms . A collective agreement confirmed that there would be no discrimination and the union and the employer would comply with human rights legislation. filed a grievance alleging that the employer had discriminated against them. A group of employees who were not provided with parking. Some employees covered by the collective agreement were provided with paid parking on a random basis and others were not. and why is the distinction important? 15. . T his meant that she could no longer care for her son. the union filed a grievance alleging that the collective agreement provision regarding the six-month limitation on the committee's assistance contravened the employer's duty to accommodate.gc. including the items referred to below. they were given access to a rehabilitation committee. Go to the Human Resource and Skills Development Canada website (http://www. For each of the items listed. When an employee with a disability was granted access to the committee.'\re there any problems with this agreement? 8.m.m.shtml) and elsewhere to find information relating to work-life balance. Find and briefly explain any policy statement on alcohol and drug testing. The environment affects many aspects of labour relations. a) willingness or desire of employees to join a union b) overall rate of union membership c) ability or opportunity of employees to join a union d) attitude or approach of employer to a union e) demands made by unions and employers in negotiations f) bargaining power of the union and the employer g) likelihood of a strike or lockout h) content of the collective agreement Web Research 1.month period. and in order to service them.44 Cha prer 2 The Environment 7. requiring her to start at 11 :30 a . . information on how to file a complaint. A collective agreement provided that if an employee was away from work because of a physical disability the employer would continue to pay his or her salary for one year. consider what element(s) of the environment could be an influence and what their impact could be.hrsdc. Hodges' son required special attention because he had a major psychiatric disorder. 11.ca/englhome. tvlore children were at the shelter after school. Is there any basis on which the union can challenge the employer's change in work hours? \Vhat is the legal obligation of the employer. Hodges worked from 8:00 a. the employer changed H odges' hours of work. l\1ight certain specific measures to accommodate be an undue hardship for one employer and not for another? Explain. 10. there could not be a sixmonth limit imposed.m. Visit the website for the human rights commission in your province or for the Canadian Human Rights Commission. Does the employer have a duty to accommodate? Explain the outcome you expect in this situation. and this work schedule allowed her to care for him after school. A collective agreement provided that if employees were unable to carry out their regular duties because of illness or injury. and work until 6:00 p. At one time. to 2:30 p.m. and policy statements. 2. The committee searched for alternative employment for the employees for a six. Most sites have a publications area where you can obtain a guide to the legislation. The union claimed that because the employer had a duty to accommodate. and what outcome would you expect in this situation? 9. and if the employee was away from work because of a mental disability the employer would continue his or her salary for six months . Hodges worked as a child and youth support worker for an association that operated a shelter for women and children. When Armand. The concerns are heightened for some individuals w hen the measurements are derived from the right hand. the customer serv ice representatives on the front counter were required to go to a fax machine in another area of the building and also to escort customers to other areas of the complex several times a day. The employees were given warnings. (The system relied upon a hand measurement. Security was a concern at the company because of expensive equipment on the premises.) Five employees were satisf ied w ith the changes proposed by the employer and d ropped t heir objection to the scanning devices. and ass isti ng in the company's call center when call volumes were high. the employees felt that the system was cou nter to their religious beliefs because it would impose " the mark of the beast" upon them as prophesied in the Book of Revelation. the employer wanted to incorporate the hand scanning as part of the system to faci 1i tate its attendance management program. The system would also work with employees swiping a card and entering a password instead of a hand measurement. the employer pro ceeded to apply its progressive discipline policy. Is there any discrimination in this situation/If so. and that system is involved in the ab ility to ea rn a living. The company encountered problems with the misuse and loss of swipe cards. and Courtney worked as customer serv ice representatives at a company that managed a toll road. Scanning devices would be placed at numerous locations in the complex to control and monitor access to various departments. receiving faxes to provide service to custo mers. If this case proceeded to a hearing. formal letters. Although the Pentecostal church is not specifically opposed to biometric scanning. The company had a security system in place that required employees to use a sw ipe card and enter a password to gain entry at various points in the bui lding. and subsequently terminated when they refused to take part in the new system . cl ient information that was held. .Chapter 2 The Environment 45 Safe Passage Toil Armand. the employer proposed that they use their left hands and also proposed the employees be allowed to wear a glove over their hand. In order to do their jobs. explain the outcome you expect. not f ingerprin ts. and their duties included issuing transponders. receiving payments. Eight employees w ho were members of the Pentecostal faith objected to the proposed scanning system because of their religious beliefs. what type of discrimination is involved I 2. however. Employees at the company are represented by a union. The employer proposed a new biometric scanning system that relied upon the measurement of the right hand w hen it was placed on a screen. W hen the employees objected to the new system. The employer did not meet with the union o r the employees other than through the disciplinary process. and Courtney continued to refuse to use the new system. W hat is the obl igation of the employerI 3. Bob. The religious objection related to using measurements of portions of the body for the purposes of identification where such measurements have a number associated with them. All three employees worked at the front counter. the number becomes part of a system of numbers. Bob. and possible hostile customers. Questions 1. 46 Cha prer 2 The Environment Dyer's Bay School Board The Dyer's Bay school board emp loys 90 cleaners. The cleaners are responsible for school classrooms, hallways, off ices, and some exterio r maintenance work, such as snow shovell ing. The cleaners' job duties include lifting 22-kilogram pai Is that contain five gallons of cleaner and to stack them three pails high in the supply room. The job also includes lifting 21 -kilogram boxes of paper, w hich are stacked five boxes high. It was estimated that the lifting was an occasional demand that accounted fo r about 13 percent of each shift. The school board established a job specificat ion that cleaners must be able to lift 23 kilograms from floor to shoulder height. The board established a lifting test to determine if candidates could meet the req uired standard . Three individualsSharon, l ucy, and Colleen-were offered jobs as cleaners. The employment offers were conditio nal upon the candidates passi ng a physical-demands assess ment, w hich incl uded the lifti ng test. W hen it was established that the three candidates could not pass the test because they were only able to lift 16 kilogra ms, their offers of employment were w ithdrawn. The unio n representing th e cleaners fi led a grievance challenging the 23-kilogram lifti ng job qualificatio n. At a grievance meeting, it was establi shed that 9 of 68 women and 2 of 245 men w ho had prev iously taken the test had failed. It was also found that four of the nine women w ho initially failed the test passed after being provided training and an opportunity to retake the test. At the arbitration hearing, the union provided evidence establishing that some cleaners took bundles of paper o ut of the boxes i n the stackin g p rocess. Also, the clean ing suppl ies cou ld be o rd ered in cases containing 4 o ne-gallo n containers, w hic h weighed 4.5 ki lograms each. Buying the cleaning suppli es in th e smal ler containers increased the cost by 10 percent. The employer argued that the 23-kilogram lifting requirement was a safety issue, and it was the same for all candidates. The employer prov ided evidence that it was in f inancial di fficulty and had to cut costs w herever possible. Questions 1. Is th ere discri mination in thi s situation I 2. Assume that you are the decision maker in this situation. Outline what your decisio n would be and provide reasons for your decision. One does not have to be a cheerleader for unions to acknowledge the institutional role they have historically pl.ayed in democratizing the economy and stimulating the spread of social wealth and rising productivity through the middle and lower income stratrJms. 1 - Michael L)'nk 1. Outline the nature and extent of unionization 3 2. Describe the structure of the labour movement 100 3. Explain the functions of union bodies 110, 114 4. Describe the nature and significance of present-day union membership 100 5 . Outline the development of unions and the implications of union history for labour relations 3 Chapter 3 Unions: Objectives, Processes, St ructure, and History 48 The Ca nad ian Union of Publi c Employees (CUPE) is Canada's largest union. The union's website (www.CU PE.ca) illustrates some of the features, characteristics, and functions of unions. CUPE has approximately 600 000 members who work in health care, education, municipalities, libraries, universities, social services, public utilities, transportation, emergency serv ices, and airlines. More than half of CUPE members are women and about one-third are part-time workers. The union's constitution outlines its objectives and provides guidelines for the operation of the national union and CU PE's more than 2200 locals across Canada. The objectives in the union constitution include the organization of workers; the advancement of the social, economic, and general welfare of active and retired employees; the improvement of the wages, working conditions, hours of work, and job security of employees; the promotion of peace and freedom in the world; cooperation with free and democratic labour movements throughout the world; and the elimination of harassment and discrimination. The Constitution provides that the methods used to achieve the union objectives include establishing cooperative relations with employers, promoting desirable legislation, conducting educational programs, and cooperating with the Canadian Labour Congress in furthering the well-being of the labour movement. A union is an organization of employees that has the objective of improving the compensation and working conditions of employees. Numerous documents are provided in the publications area of the website. One of these documents argues that governments do not have a spending problem they have a revenue problem. It is noted that the federal government's plans to cut its tax rate on corporate income from 18 to 15 percent will reduce federal revenues by a total of more than $20 billion during the next five years, and the Ontario government's plans to cut its provincial corporate income tax rate from 14 to 10 percent over the next three years wi II lead to a loss in revenues of over $8 billion during the next five years. The upcoming events list educational meetings covering topics, including building strong local unions, steward training, public speaking, legislation, health and safety, and climate change. The campaigns the union is involved in are outlined. On the issue of retirement security, there is a call for increased CPP benefits and increases in the guaranteed income supplement. On the issue of healthcare, the unio n urges the maintenance of a universal single-tier health care system and claims that the federal government has allowed increasing use of user fees, extra billing, and other violations of the Canada Health Act. Information relating to the union's charitable activity is provided. These efforts have included donating money for earthquake relief in Haiti, collecting winter clothing for teenagers in an Edmonton youth shelter and donations to the United Way. Unions are key actors in the labour relations sysrem. T his chaprer considers rhe exrent of unionization, union structure, the functions of various union bodies, and the development of unions and labour relations. A union or trade union is an organization of employees that has the primary objective of improving the compensation and working conditions of the employees it represents. Some unions also seek to improve rhe quality of working life for all working people by seeking changes in legislation that affect all employees. Unions also have political and social significance for the whole of society. Unions affect the compensation and working conditions of both unionized and non-union employees. Unionization is based on the principle that individual employees have little or no power when dealing with their employer, but as a group they can increase rheir power and improve their terms of employment. UNIONS IN CANADA T here are 4.6 million union members in Canada. In this section, the extent of unionization and the characteristics of union members will be explored. EXTENT OF UN IONIZATION Union density is the percentage of nonagricultural workers who are union members. Union density is the percentage of nonagricultural workers who are union members. Union density indicates the percentage of potential union members who have actually joined a union. As of the middle of 2009, Perspectives on Labour and Income, an Chapter 3 Unions: Objectives, Processes, Structure, and History 49 important source of union information published by Statistics Canada, reported that union density in Canada was 29.5 percent. 2 Union density is not the same as the percentage of employees covered by a collective agreement. There are more workers covered by a collective agreement (31.5 percent in 2009), because some employees covered by a collective agreement do not become union members. Although in some situations employees are required to become union members, this is not always the case. Union density can be determined for an entire country, a province, or a sector of the economy such as manufacturing. Figure 3-1 shows union membership and density information in each year of the period 1948-2009. Figure 3-1 shows that union density increased until it reached a peak in 1984, and subsequently it has been slowly declining. Union density varies significantly across industries and provinces. It is highest in Newfoundland and Labrador, and lowest in Alberta. Figure 3-2 ranks the provinces from highest to lowest union density for the years 1999 and 2009. FIGURE 3-1 Union Membership and Density in Canada Year Membership (OOO's) Density (%) Year Membership (OOO's) Density(%) 1948 1949 1950 1951 1952 1953 195 4 1955 1956 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 978 1,006 30.3 29.5 1,029 1' 146 1,220 1,268 1,268 1,352 1,386 1,454 1,459 1,459 1,447 1,423 1,449 1,493 1,589 1,736 1,921 2,010 2,075 2,173 2,231 2,388 2,591 2,732 2,884 3,042 3, 149 3,278 28.4 30.2 33.0 33.8 33.7 33.3 32.4 34.2 33.3 32.3 31.6 30.2 29.8 29.4 29.7 30.7 32.3 33.1 32.5 33.6 32.4 33.9 35.4 35.2 35.6 36.9 36.3 37.1 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 199 1 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 3,397 3,487 3,617 3,563 3,651 3,666 3,730 3,782 3,841 3,944 4,031 4,068 4,089 4,071 4,078 4,003 4,033 4,074 3,938 4,010 4,058 4, 111 4, 174 4,178 4,261 4, 381 4,441 4,480 4,592 4,605 35.7 35.4 35.7 36.4 37.2 36.4 36.0 35.2 35.0 34.8 34.8 34.8 35.8 36.0 36.1 34.7 34.3 34.5 32.7 32.8 32.2 31.6 31 .4 30.6 30 .5 30.7 30.7 30.3 30.4 29.9 Source: )on Peirce, Canadian Industrial Relations, 2nd edition, Pearson Education, Inc., 2003, page 123- 22; and Human Resources and Ski lls Development Canada, "Union Membership in Canada-2009", http://www.hrsdc.gc.ca/eng/labour/labour_relations,l info_analysis/ union_membership/index2009.shtml. Reproduced with the permission of Her Majesty the Queen in Right of Canada 2010. 50 Chapter 3 Unions: Objectives, Processes, St ructure, and History FIGURE 3-2 Union Density: Rank by Province, 1999 & 2009 1999 Province Union Newfound Iand & Labrador Q uebec Manito ba Briti sh Columbia Saskatchewan Nova Scotia Prince Edward Island New Brunswick O ntario Alberta 2009 Density(%) 38.0 35.9 35.5 30.9 33.8 33.9 28.4 27.4 26.5 23 Province Newfound land & Labrador Q uebec Manitoba Saskatchewan Pri nee Edward Island Nova Scotia British Columbia Union D ensity (%) New Brunswick O ntario A lberta 27.7 26.4 22.9 37.5 36.5 35.4 34.3 30.1 29.5 29.1 Sources : Adar>ted from Statistics Canada publicatio n Perspectives on Labour and Income, Catalogue 75-001 -XPE, Volume 11, Number 3, (Autumn 1999), page 48; and Volume 21, Number 3, (Autumn 2009), page 70, and al so available on Statistics Canada website http ifv;ww .statcan .ca,/bsolcjengl ish/bsolc lcatno = 7 5-001-X. As can be seen in Figure 3-3, union density is high in utilities, public administration, education, and health care, and low in banking and finance, and accommodation and food. The numbers indicate there is room for growth in some sectors. FIGURE 3-3 Union Dens ity: Rank by Industry, 2009 Industry Union D ensity % Goods-Produ cing Utiliti es Constructio n Manu factu ring Natural Resources Agricu Iture 62.2 30.0 24.2 20.9 5.3 Total Goods-Producing 26.5 Service-Producing Education Public Admini stratio n Health Care and Social Assistance Transportation and Warehousing Informati on and Cultural Management, Admini stration and Support Trade Other Finance, Insurance, Real Estate and Leasing Accom modation and Food Professio nal, Scientific and Technical 68.0 67.2 54.0 40.0 26.6 14.6 13.1 8.8 8.2 7.0 4.3 Total Service-Producing 32.5 Source: Adapted from Statistics Canada publication Perspectives on Labour and Income, Catalogue 75-001-XPE, Volume 21, Number 8, (Autumn 2009), page 71 and also available on Statistics Canada website http://www.statcan.ca,lbsolc/engli sh/bsolc 1catno= 75-00 1-X. Chapter 3 Unions: Objectives, Processes, Structure, and History Union Density: Canada vs. the United States Although Canadian union membership has continued to grow, union density has been slowly declining since 1984 because nonagricultural paid employment is increasing faster than unions are recruiting new members. In some countries, notably the United States, the decline in union density has been drastic in recent years. In 1960, in both Canada and the United States, total union density was approximately 30 percent. Now in both rhe public and private sectors, union densiry is significantly higher in Canada. Total union density in Canada is 29.5 percent, 71.3 percent in the public sector, and 16.1 percent in the private sector. In the United States, total union density has dropped to less than 12 percent, 35 percent in the public sector and 8.2 percent in the private sector. 3 The public sector, which includes heavily unionized sectors of the economy such as education, public administration, and health care, makes up 57.3 percent of union membership. 4 A weaker union movement in the United States could be significant for unions and employers in Canada. It might lead to lower compensation levels in the United Stares, which could put downward pressure on compensation in Canada. The presence of non-union regions in the United States may induce Canadian employers to relocate to avoid unions. Will the Canadian labour movement be able to avoid a decline similar to that in the United States? One observer in the United States has put forward a convergence thesis thar holds that the decline in union density in the United Stares is based on marker forces that will inevitably lead to the same decline in Canada.5 Canadian studies have questioned the convergence thesis, suggesting that factors such as the superior ability of Canadian unions to organize employees, and more favourable political and legal environments in Canada, do not make a decline in Canadian union density inevitable. 6 Political Environment. Some observers have noted that unions in Canada have benefited from a different political environment than that of the United States. Canada has had a social democratic party, which has promoted labour's interests in provincial legislatures and Parliament, since 1932. Although the NDP has not formed a government at the federal level, it has been able to influence legislation, especially when it has held the balance of power in a minority government. Legislation granting collective bargaining rights to federal public sector employees was enacted by a minority government supported by rhe NDP. At the provincial level, the NDP has formed governments that have passed legislation favourable to unions, including provisions that made certification of unions easier. The different political environment is one of the reasons why the legal environment is more favourable to unions in Canada. Legal En vironment. Canadian legislation provides for a certification process that is more favourable to unions. In the United States, representation votes are required for certification under the National Labor Relations Act. Reports from the National Labor Relations Board indicate that unions in rhe United States have recently been winning 65 percent of representation votes? The certification process in Canada is considered in Chapter 6. In four Canadian jurisdictions, a union can be certified without a vote on the basis of signed membership cards. T his is favourable to unions, because it reduces the employer's opportunity to campaign against the union or intimidate employees. In Canadian jurisdictions that require a vote as part of the certificat ion process, the vote is held shortly after the application for certification is filed. In the United States, there is a longer delay between the application for certification and the vote, which allows the employer to campaign against the union or intimidate employees. Union security provisions, discussed further in Chapter 7, are more favourable to unions in Canada. In most jurisdictions, the law allows for union dues to be 51 52 Right-to-work states in the United States prohibit the compulsory deduction of union dues . Chapter 3 Unions: Objectives, Processes, Structure, and History deducted from the pay of all bargaining unit employees at the request of the union and also provides for compulsory union membership in a collective agreement. In the United States, there are 22 states that have right-to-work legislation prohibiting the compulsory deduction of union dues. T he more favourable union security provisions in Canada may assist unions by providing a secure financial base and by eliminating the contentious issue of the deduction of dues from the negotiation of first collective agreements. Labour relations legislation is more quickly and strictly enforced in Canada than the United States, and this poses a deterrent to employers who might consider prohibited conduct to oppose a union. 8 In Canada, legislation granting bargaining rights to public sector employees is more favourable to unions than in the Un ited States. T he right to strike has also been less restricted in this country, and there are fewer limits on the issues that can be the subject of negotiations. This difference may make unionization more attractive to Canadian public sector employees. Union Organizing Efforts. Canadian unions have made greater efforts to organize workers than U.S. unions. In some years in the 1990s, Canadian unions organized as many new members as American unions, despite the population difference. Employer Opposition. There is evidence that employers in the United States actively oppose unionization more than Canadian employers. A former chair of the National Labor Relations Board in the United States has stated, "The American legal system has clea rly permitted employers to vigorously oppose unions, and they have done this with devastating effects upon the labor movement. " 9 Although political, legal, and other factors may have allowed unions in Canada to maintain a higher union density than the Un ited States to dare, some observers are pessimistic about the future. 10 Characteristics of Union .M embers Employment Status, Full vs. Part Time. Union density for part-time Canadian employees is 23.3 percent. 11 T he organization of part-time employees continues to be a challenge for unions. Many part-time workers are employed in the private service sector, where unions have had difficulty organizing in the past. T he use of part-rime 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. Increase in Female M embership. Female union membership relative to male membership has been rising. In 1977 only 12 percent of union members were female, but now female union membership is slightly higher than male membership. 12 T his increase in female union membership has practical significance for both unions and employers. Unions have found that they must deal with the issue of female representation in union positions. T he presence of female bargaining unit members has led to unions dealing with issues, such as child care, sexual harassment, flexible hours, and pay equtty. Age. The tmion density rate for youth (persons between 15 and 24) was only 14 percent in 2008. 13 One study has found that this lower rate of unionization is not because younger workers desire a union less than older employees; it is attributable to the fact that they have less opportunity to unionize. 14 Education. Union members may have higher levels of education than is commonly perceived. More than 36 percent of union members have a postsecondary certificate or diploma, and 27 percent have a university degree. 15 Chapter 3 Unions: Objectives, Processes, Structure, and History 53 TYPES OF UNIONS H istorica lly a distinction has been drawn between craft unions and industrial unions. A craft union limits its membership to a particular trade or occupation such as electricia ns or ai rline pilots. The Internationa l Brotherhood of Electrical Workers is an example. Such unions have been referred to as horizontal unio11s, because they organize employees across different firms . An industrial union, on the other hand, organizes different types of workers in a firm, including skilled and unskilled workers. T he Canadian Auto Workers (CAW) is an example. T he distinction between craft and industrial unions is not as important as it was in the early years of the labour movement. T hen, it was one of the factors dividing the movement: Craft unions, the first to develop, did not support the development of industrialunions. H owever, in recent times, some craft unions have organized industrial workers, and industrial unions have organized skilled employees. In the past, there has also been a distinction between public sector and private sector unions. T his distinction, too, is breaking down, as public sector unions are organizing employees in the private sector and vice versa . T he Canadian Union of Public Employees (CUPE) has organized employees in the airline industry, the CAW 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, the CAW, CUPE, and other lmions have organized workers in casinos. UNION OBJECTIVES AND PROCESSES T he framework outlined in Chapter 1 provides that union objectives and processes were a key part of labour relations. Processes refer to union activities and methods, such as contract negotiation, which are used to achieve union objectives. T his section broadly outlines the objectives and activities of unions; subsequent chapters will elaborate on activities such as contract negotiation. T here is significant variation in the extent to which unions pursue the objectives outlined here. For example, some unions do not engage in political activity. Jolm Godard has written about union roles and objectives; and although this section uses different terminology, the objectives referred to here are based upon his analysis. 16 Union objectives and activities are summarized in Figure 3-4. FIGUR E 3-4 Union Objectives and Processes Objectives 1. Improving terms and conditions of work 2. Protecting against arbitrary management action 3. Providing confli ct resolution and employee input 4. Pursuing social and economic change Processes or Methods 1. Organi zing employees 2. Contract negotiation 3. Strikes and boycotts 4. Grievances and arbitration 5. Court (legal) action 6. Political activity 7. Publi c relations 8. Union-management collaboration 9. Other unilateral action Craft unions organize members of a trade or occupation. Industrial unions organize workers in different occupations in a firm. benefits. such as a ban on replacement workers during a strike. the remainder of the met hods listed in Figure 3-4 could be employed. T he grievance and arbitration process. Some of the improvements in working terms that unions are able to achieve will be adopted in the non-union sector. strikes and walkouts. This is especially significant in the public sector where unions have used full-page newspaper ads to try to obtain public support. which may increase efficiency. and job security. Unions participate with employers in joint committees like health and wellness that will benefit employees. . such as providing training relating to harassment. Political activity could also include working to elect a government that will enact legislation that could help a union negotiate more favourable terms of employment. The union successfully challenged the employer directive. A union may be able to protect freedom of speech through the collective agreement and the grievance process. Processes.54 Chapter 3 Unions: Objectives. PROTECTING EMPLOYEE S AGAIN ST ARBITRARY MANAGEMENT A CTION Godard has referred to a workplace democratization role for unions. This prospect is elaborated upon in the final chapter. the United Food and Commercial Workers Union (UFCW) has lobbied to change legislation that prohibits agricultural workers from organizing in some provinces. t his objective also includes noneconomic issues such as health and safety. which is elaborated upon in Chapter 9. Some unions engage in unilateral action. a hospital employer attempted to prohibit the posting of a legal opinion relating to the issue of mandatory vaccinations. Although organizing employees. unions may assist employers and increase productivity. For example. Unions can play a problem-solving role with employers. can be used to challenge rules established by management. T he Meiorin case referred to in Chapter 2 illustrates how a union can use the courts to appeal an arbitra tion decision and obtain the reinstatement of an employee. this is an area where a mistake could cause a public relations problem. Although this is largely an economic role. 17 PRO V IDING A PRO CES S FOR C O NFLI CT RE SOLUTI O N AND EMPLO YEE INPUT By providing a process for the resolution of conflict and employee input. In one case. However. Structure. a nd History IMPROVING TERMS AND CONDITIONS OF WORK Unions seek to improve wages. unions provide a voice to employees that provides an alternative to exiting or quitting. Unions can protect employees from arbitrary management decisions through terms that are negotiated in the collective agreement. The grievance and arbitration process and union-management conunittees are the key methods used here. and the grievance and arbitration process are the most familiar methods unions use to improve terms or conditions of work. work hours. Some public relations efforts are aimed at convincing the public to support unions when they are engaged in negotiations with employers. Political activity could also include lobbying for changes in legislation that will facilitate the organization of employees. and other terms of work for employees they represent. which will improve the employee's terms and conditions of work. contract negotiations. Briefly. We will later see collective agreements providing that employees cannot be disciplined unless management provides reasons for the disci pline. secretary. a casino. an employer might deal with several locals. lobbying for changes in legislation. Some unions will attempt to educate and inform employees about social and political issues.com . and bylaws. A local union/ local is an association of employees w ith its own officers and constitution. is the fundamental unit of union structure. it is necessary to know about their components or structure. clerical staff. The latter may be referred to as amalgamated or composite locals. Organization a nd Governa nce Many locals have a membership consisting of those who work for an employer in a municipality. For example. and a court challenge to prevent the sale of Ontario H ydro was successful. and kitchen staff. an example is a local of the CAW in WindsoJ. Each local would have its own collective agreement with the employer. and engaging in other political action. We will first look at the present-day structure and functions of tmions. A college could have employees that belong to two locals of the same union. Locals 175 and 633 UFCW: W\VW. To understand unions. A local is an organization that has its own officers. In the simplest case. A local will have officers. LOCAL UNION The local w1ion. one for faculty and one for support staff. an employer might deal with one local of a union. that has members who work for several employers including ChrysleJ. Larger locals may also have paid administrative staff. Many locals in the UFCW cover an entire province. Structure. Processes. UNION STRUCTURE AND FUNCTIONS In all unions the local is the key unit of organization. These objectives will involve working in elections. Figure 3-5 illustrates the structure of the Canadian labour movement. unions conducted a public campaign against the move. some officers may hold their union positions full-time. and History 55 PURSUING ECONOMIC AND SOCIAL C H ANGE Unions also have objectives for society as a whole outside of the workplace. and key developments in the history of unions. some unions are presently attempting to block the further privatization of health care. and stewards. Some locals may have executive members holding various titles such as chairpersons or committee persons. When the government introduced privatization legislation. constitution. Unions in Ontario challenged the privatization of Ontario H ydro. and an energy-generation company.ufcwl 75 . All union members belong to a local. usually a president. a hospital might deal with several locals belonging to different unions who represent nursing staff. each of which belongs to a different union. In larger locals. and most locals in turn belong to a parent national or international union. An employer might deal with one or more locals that belong to one or more unions. maintenance employees. the functions of various union bodies. or simply the local. Ontario. There are over 14 000 locals in Canada. treasurer. For example. Website for the largest local uni on in Canada. In some unions. and then look back to see how they got to where they are today. In a more complex situation. Others have members who work for different employers in a municipality. large locals are organized on a province-wide basis. but in many locals the officers serve on a part-time basis. An example would be the production workers in an auto parts plant who are represented by a local of the CAW.Chapter 3 Unions: Objectives. Unions prefer to base dues on a percentage of earnings so that they can avoid having to go to the membership to have dues increased as earnings rise. T he executive of the local usually has the authority to deal with day-to -day issues. duties of officers. 2. and regulations regarding meetings. Locals obtain the funds required to carry on operations from union dues. such as a strike fund. or. Processes. Dues are a specified percentage of an employee's earnings. Provincial Federation of labour J I National Union 4. less commonly. Most locals belong to a parent national or international union. and History FIGURE 3-5 Structure of the Canadian Labour Movement International labour Organizations Canadian l abour Congress 5. publications. a flat amount. A business agent is a staff person who works for one or more locals providing support. environmental issues. . T he website for a local will typically indicate that the local has committees for health and safety. especially craft unions. Most national and international unions are affiliated with a labour congress. and providing other services. Some unions require a general membership meeting to be held within specified times. education. assisting with negotiations. T he authority of the executive and the matters that must be referred to the general membership will vary between locals. Most locals make extensive use of committees. however. Canadian Branches of International Unions t 3.a paid staff person who works for one or more locals handling grievances. Some unions. A local has its own bylaws and constitution. l ocal Union 1. 3. St ructure. 1. 5. labour Council t 2. A portion of the dues will be remitted to the national or international union a local belongs to. Most locals are affiliated with a provincial federation of labour. typically 1 to 2 percent. A local union may belong to a Labour Council for a municipality or region. A small number of local unions are directly chartered by a labour congress. Some matters will be dealt with at general membership meetings. and other matters. a few are independent local unions. T he bylaws set out matters relating to the governance of the local.56 Chapter 3 Unions: Objectives. may make use of a business agent. these must comply with any constitutional provisions of the national or international union the local belongs to. 4. including officers. A percentage of dues may be allocated to specific areas. The CLC is the largest labour congress. while others allow for general membership meetings to be held when needed. community affairs. Although there is some variation between unions. Organizing workers Most locals have a key role to play in contract negotiation. the website for Local 444 of the CAW has criticized U. are considered in Chapter 8. a large local may also get involved in broader political issues. or does not adequately handle the administration of the agreement.S. The employer should note that locals are democratic organizations. Negotiation of col lective agreements 5. Collectio n and processing of uni on dues 7.9 percent of union membership. often with the assistance of a national or international union. a local could provide training relating to the filing of grievances.Chapter 3 Unions: Objectives. Indep endent local unions are locals not affiliated w ith a pare nt national or inte rna tional unio n. he or she contacts a local union officer to file a grievance. although it may not have members in all provinces. The details of this activity. Such unions make up only 3. Education of members 8. Although national unions and other union bodies described below deal with political questions at the provincial and national level. and History 57 Functions of the Local The local might be involved with one or more of the functions listed in Key Considerations 3-1. the local usuaUy plays a key role in the administration of the collective agreement. Structure. Community serv ice 2. . For example. including how a local prepares for negotiations. Some locals get involved in political issues. may be replaced. If an employee thinks the coUective agreement has been violated. not A national union is a union w hose membership is situated o nly in Canada. Locals may also become involved with the education of their members. Operation of a hiring hall 4 . They do not have access to the support or services that national and international unions provide to their locals (see Figure 3-6). Po litical action 3. the parent union. depending on its size. 18 For employers. are known as independent local unions. Processes. which is frequently done at the local level. NATIONAL AND INTERNATIONAL UN IONS The term U<ltional union is a bit misleading. the most significant activities of the local are contract negotiation and the administration of the collective agreement. IN DE PEN DENT LOCAL UN IONS Local unions that do not belong to a national or international union. Adm inistration of the collective agreement 6. Considerations 3-1 Functions of a Local Union 1. such as faculty associations at some universities. it refers to a union whose membership is confined to Canada. Thus. foreign policy regarding Iraq and encouraged changes to employment insurance. Some locals engage in charitable work such as the United Way campaign or other community affairs. For example. and the industry. and it is possible that a union local executive body that negotiates an unsatisfactory collective agreement. 0 www.ca www.5 122. It is reconunended that you visit some of the sites to see illustrations of the union functions.shtml. Manufacturing.787 3.org 92. constitutions. there were 173 national and 37 international unions in Canada.ufcw.csn. Aerospace.com 182.org 128.ca 570.2009.8 Source: Human Resources and Skills Development Canada.697 1.ca 245.6 67.0 3.2 108. International unions have members in both Canada and the United States. Transportatio n and Gene ra l Worke rs Unio n of Canada (CAW-Canada) (CLC) Public Service Allia nce of CanadaPSAC (CLC) Communications.086. " Union Membership in Canada.605. FIGURE 3-7 Union Membership by Type of Union. T he Un ited Food and Commercial Workers International Union and the United Steelworkers of America are examples of interna tional unions . 2009 Unions Internationa l Unions National Unio ns Directly Cha rte red Unio ns Independent Local Organi zatio ns Total 37 173 290 264 764 Locals 3.0 W'vVW.shtml. only the CUPE and the CAW but also the British Columbia N urses Union and the Ontario Secondary School Teachers' Federation are national unions. Reproduced w ith the permi ssion of Her Majesty the Q ueen in Right of Canada 2010 . teamster. Energy and Paperworkers Unio n of Canada-CEP (CLC) Federation de Ia sante et des serv ices-CSN Teamste rs Canada-CtW/CLC Serv ice Employees International UnionCtW/CLC Membership (OOO's) Website www.272. " Union Membership in Canada-2009.647 Membership Number % 1. Reproduced with the permission of Her Majesty the Q ueen in Right of Canada 2010.0 www.ca.gc.5 177. Processes. 193 100. Pa1:~er and Fo restry.caw. .ca 340.cep. with headquarters typi cally located in the United States. and History FIGURE 3-6 largest Unions in Canada-2009 Union Canadian Unio n of Public EmployeesCUPE (CLC) National Unio n of Public a nd General Employees-N UPG E (CLC) United Steel. w ith headq uarters typically located in the United States.197 67.0 Source: Human Resources and Skills Development Canada.leng/labour/ labour_relations/info_analysis/ union_membershi p/index2009.0 www. nupge.psac. In 2009.hrsdc .a/engt1a bou r/ la bour_relations/i nfo_ana lysis/ union_membershi p/index2009.ca www.uswa.837 10.hrsdc.5 www. Rubber.gc .5 www.ca 225.3 www.ca 280.se iu .9 4. Figure 3-6 lists the 10 largest unions in Canada and their websites.cupe. St ructure.810 14. Energy." http ://www.58 Chapter 3 Unions: Objectives. " http://www .c. Allied Industri al and Serv ice Workers Intern ational Unio n-AFL-CIO/C LC United Food a nd Commercial Workers Internatio nal Union-UFCW (CtW/CLC) National Auto mobile.qc. and activities discussed below. An international union has members in both Canada and the United States.825 27. there are common features and patterns. Although the composition of the executive will vary from union to union. The union fined both employees $476.Chapter 3 Unions: Objectives. the union started a legal action to recover the fines. there will typically be a president.pdf . at the conclusion of a strike the union and the employer may agree that there will be no reprisals against any employees for their conduct during the strike or their failure to support the strike. National c Website for the constitution for the CAW : www. The case eventually went to the O ntario Court of Appeal w here it was confirmed that the union could not use the court system to enforce the payment of f ines. violating the bylaws or rules of the union. Nova Scotia. The application of the union 's constitution may be constrained by the obligations that the union has agreed to under a collective agreement. or termination of membership-for certain offences.ca/whoweare/ CAWconstitution/cawconE. and an appeal process. including making false statements in an application for membership. The union constitution may set out the penalties. Should unions have the authority to impose fines/Is there any reason w hy employers might want unions to have the authority to impose fines I In five jurisdictions (Canada. the total of each employee's gross salary for the three days they crossed the picket line. given a reasonable time to prepare a defence. including the right to be represented by counsel. Manitoba.fines. T he union may be prevented from exercising a provision of its constitution because it has agreed not to do so. Refer to Labour Relations Issue 3-1 on this issue. Processes. Alberta. Labour relations legislation may regulate the disciplinary process. -\ I labo•!Ln~uunu~~~~------------------------------------~ Should Unions Be Able To Impose Fines? Employees of the Canada Revenue Agency are represented by the Public Service All iance of Canada ("PSAC"). T he constitution typically sets out a procedure for charges to be laid. and local officers and their duties. and participating in an unauthorized strike. D uring a legal strike. a hearing to be held. treasurer. the conduct of negotiations and the authorization of strikes. W hen the employees refused to pay the fine. T he union will have a constitution that regulates issues such as officers and elections. where legislation permits the collection of union fines. misappropriation of union funds. For example. Section 17 of the constitution of the Communications. suspension. and several vice-presidents. Recent court decisions have confirmed that unions cannot enforce the payment of fines in the courts. and is afforded a full and fair hearing. Structure. two employees crossed the picket line and worked three days. The decision sets out the law on the issue of union fines that applies in all provinces except Saskatchewan. Energy and Paperworkers Union lists offences. The union's constitution provides that it is an offence to work during a strike and requires the imposition of a fine equal to the amount earned by the employee during the strike. labour relations legislation provides that an employee cannot be expelled for any reason other than the failure to pay union dues. The union's executive and administrative staff look after day-to-day operations. and Saskatchewan). section 26 of the Alberta Labour Relations Code provides that a union member cannot be disciplined unless he or she is served with specific charges in writing.75. and History 59 Organiza tion a nd Governa nce Although each national and international union has a unique organizational structure. unauthorized work during a labour dispute. This agreement would prevent the union from disciplining employees who continued to work during a strike. secretary.cmv. For example. a general meeting typically held every one or two years to which locals are entitled to send delegates. ergonomics. and other matters of concern to staff. St ructure. the number of delegates sent by a local is based upon its size. health and safety.60 Chapter 3 Website for the Constitution of the Communications. Processes. in a few exceptional cases. officers are elected. ad vertising. all locals are entitled to the same representation. and History and international unions are typically organized into functional departments and might have experrs in economics. the United Steelworkers attempted to block a restructuring and payout to shareholders at Algoma Steel. H owever. Energy and Paperworkers Union of Canada: www. It may assist locals with the grievance process by providing one or more of the following: advice on the interpretation of the collective agreement.ca/about/constitution_ e . including the negotiation of collective agreements. Unions are also turning to the courts to achieve their objectives. Providing strike assistance to locals 2. most of which relate to providing assistance to locals. Providing educatio n and training for union members 6. Although it is not clear that the union court action would have been successful.html Unions: Objectives. Organi zing workers c The union may 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. and a grievance officer or lawyer to appear for the local at an arbitration hearing. and resolutions voted upon. Their functions are listed in Key Considerations 3-2. and media relations. Considerations 3-2 Functions of National and International Unions 1. Unions have attempted to influence government policies through lobbying. It may provide training in various subjects. 19 In this case. unions donated $3 . and appearances before parliamentary and legislative committees. T he supreme governing tool of the union is the convention. For example. Just prior to new rules on union and corporation contributions to federal political parties becoming effective in 2004. research on related arbitration decisions. At the convention. pensions. In most cases. policy matters are discussed. Engaging in politi cal activity 3. Functions of Nationa l and Interna tiona l Unions National and international unions have several key ftmctions. this does illustrate that unions are using the courts to achieve their goals. a database of previous arbitration decisions interpreting the collective agreement. grievance handling. Assisting locals w ith grieva nces 5. a large shareholder was proposi ng a payout of $400 million that the union argued should be retained to upgrade facilities and reduce a pension deficit. Some unions have a strong presence in the NDP and have provided funds and volunteers to the party. Assisting locals w ith contract negotiation 4 .5 million to the federal NDP. providing for a smaller payout. human rights.cep. it is noted below that . T he issue was resolved with an agreement between the company a nd the shareholder. however. (The legal action by the famil ies was a subrogation cla im. When the device was tripped. a gold producing facility near Yellowknife. Royal Oak continued operations usi ng replacement workers. T he union constitution may provide that the local cannot go on strike unless the national executive of the union approves the action. its constitution provides that the national representative serving the bargaining unit must make a report to the national president. and History union leaders have not been able to convince their membership to vote for the NDP in significanr numbers. and security guards were inj ured in altercations with strikers. The court confirmed that the national union and the local union are separate entities. Several strikers. T he CAW constitution. incl uding Roger Warren. the national or international union may take control of the local's affairs if it fails to comply with the union's constitution. It may have bargaining objectives of its own to bring to the negotiations through its representative. In July 1994 the CASAW amalgamated with the Canadian Auto Workers union (CAW). Royal Oak. In September 1992 Warren planted an explosive device in the mine. Website for the Canadian Labour Congress: www. to prov ide secu rity.that is. and attempt to organize non-unionized workers. T he national or international union may affect the demands negotiated by the local. The Relationship Between a National Union. owned by Royal Oak Mi nes Inc. the constitution of a union will provide for the possible trusteeship of a local. In the case of the CAW.ca Trusteeship refers to a parent unio n temporarily taking control of a local's management. CAW national. who then makes a reconunendation for or against strike action. the national union was not liable for the acts committed by union members during a strike. T he contract dema nds made by the local may have to be approved by the national union. The strike became violent and the employer hired Pinkerton's of Canada Ltd . On an appeal the decision of the trial judge was overturned. 23 percent.7 million apportioned between the defenda nts as follows: Warren. for example.anadi anlabour. Explosives were set in the mine. nine workers were killed. T he process through which a union obtains the right to represent a new bargaining unit is considered in Chapter 6. Although it rarely occurs.Chapter 3 61 Unions: Objectives. Pinkerton's 15 percent. A further appeal by the fami lies to the Supreme Court of Canada was dismissed. and at tria l were awarded $10. 5 percent. were fired after damaging company property. and local union stri ke leaders. the court made severa l findings that are significant to national a nd loca l unions.c. The damages would be paid to the NWT Workers Compensation Board. apparently by striki ng workers. The victim's families sued. Warren was later convicted of seconddegree murder. Should the natio nal uni on have legal responsibility for the actions of a local union I . A subrogation claim refers to the compensation board attempting torecover monies prev iously paid to the famil ies by pursuing a legal action in the name of the families. Structure. 22 percent. Rela tionship between a Loca l and the N a tiona l or Interna tiona l Union T he relationship between the local union and the parent national or international union may affect an employer. The national executive board of the union must then approve a strike. Furthermore. Unions also provide financial assistance and expertise to locals on strike.) In its decision. provides that demands for skilled workers must be submitted to the union's skilled trades department before being submitted to the employer. 9 percent. the Northwest Territories govern- ment. and unless there is wro ngful conduct such as incitement by the national union it is not liable for a local's actions. whi ch had prev iously compensated the families. 26 percent. Processes. and Union Members In May 1992 a local of the Canadian Association of Smelters and Al lied Workers (CASAW) began a strike at the Giant Mine. Local Union. When the CAW attempted to take over some locals of the SEIU. T he functions of the CLC are listed in Key Considerations 3-3. T here are only a few such unions. Unions have found that they have common concerns and there are benefits to having unions come together in associations at the provincial and the national level. It is recommended that you visit the Congress' website. the purpose of which is to prevent raiding between affiliated unions and establish a procedure for employees to change unions. Organization a nd Governance of the CLC T he constitution of t he CLC. T he CLC represents 3. N a tional Labour Congresses A directly chartered union receives a cha lter from a labour congress a nd is not affiliated with a national or inte rnational union . The largest nat ional labour congress is the Canadian Labour Congress (CLC). a practice that is generally discouraged in the labour movement. and their membership amounts to only about 1 percent of total Canadian union membership. A recent dispute between the CAW and the Service Employees International Union (SEIU) is an illustration of raiding. which lays down how the CLC is organized and governed. For example.2 million union members. St ructure. Collectively. which illustrates its functions and current activities. a nd History LABOUR CONGRESSES AND FE DERATION S labour federa tions o r labour congresses are associations of unions. Raiding refers to one union persuading members of another union to change unions. The directly chartered unions in the CLC are not significant. they represent less than 10 percent of Canadian union membership. the CLC made submissions to the House of Commons conunittee reviewing the legislation. Unions that belong to the CLC send delegates to a convention that is held every two years. the raiding union replaces the first union and becomes the bargaining agent for the employees. which provides for adequate membership meetings in local unions. T he conventions elect officers who are responsible for the operations of the C LC between conventions. A union that fails to adhere to the code can be suspended. The CLC has a disputes protocol. A labour federation or h1bour congress is an association of unions that promotes union interests. 70 percent of union members in Canada. The CLC also comments on numerous social and economic issues. democratic elections. Most in Canada are chartered by a Quebec labour congress. prior to the amendment of the Canada Labour Code in 1998. a situation that is elaborated upon in Chapter 6. Functions of the CLC Raiding refers to one uni on persuading members of another union to cha nge unions. one of which was a call for a ban on the use of replacement workers during strikes. Processes. which includes 40 national unions. One of the key functions of the CLC is pursuing changes that are favourable to workers and unions in federal employment and labour relations legislation. There are a few small labour congresses in Quebec. is available at the organization's website. If the raiding union successfully applies to represent the employees. The CLC has a code of ethical practices in its constitution. and direct ly chartered unions. the CLC found that the CAW was guilty of raiding the SEIU and imposed sanctions.62 Chapter 3 Unions: Objectives. . 26 international unions. and provides services to its members.20 A directly chartered union is a local union that has received a charter di rectly from a labour congress and is not part of a national or international union. coordinates union business. and honest financial management. and supporting unions on strike.ca Website for provinc ial labour federations: www. i ntell i s.nsfl. an organization composed of unions in a province who belong to the CLC.sk.pei fl.nlfl.ftq . It holds workshops and provides materials relating to topics such as union organization. Functions of the Canadian Labour Congress 1.ofl-fto. FIGURE 3-8 Provincial la bour federations are organizations composed of unio ns in a provi nee w ho belong to the CLC.sil.mb. Education 3. educating members. legislation.ca www. and contract negotiation.on. Managing juri sdictio nal disputes between unions Provincial Labour Federations Every province has a provincial labour federation.afl . Figure 3-8 lists the websites for the provincial federations. It is recommended that you go to the website for the federation in your province to learn about its functions and activities.ca http://www.canad ianlabour. and the CLC website has a link to them as well.mfl.Chapter 3 63 Unions: Objectives.ca www. pursuing provincial economic and social policy favourable t o workers.ca http://www.bcfed. Provincial labour federations become involved in the following activities: lobbying the provincial governments regarding employment and labour relations legislation. Processes. Pursuing economi c and social policy favourable to workers at the federal level 6.ca/ index.ns. Provincial Labour Federations Name of Federation A lberta Federation of Labour (AFL) British Columbia Federation of Labour (BCFL) Manitoba Federatio n oi Labour (MFL) N ew Brunswick Federation oi Labour (NBFL) N ewfoundland and Labrador Federation of Labour (NLFL) N ova Scotia Federatio n of Labour (N SFL) O ntario Federatio n oi Labo ur (OFL) Prince Edward Island Federatio n of Labour Q uebec Federation oi Labour (FTQ) Saskatchewan Federatio n oi Labour (SFL) Website www. Lobbying the federal government regarding employment and labour relations legislation 4. Structure. Maintaining links w ith labo ur movements in other countries 5.nf.qc .php/Federations .ca www. Enfo rci ng the CLC code of ethi cs 2. The CLC represents Canadian unions in international labour organizations and provides educational assistance for its own members. Although employers may have contact with national or international union representatives.netlfttnbfl www.ca W\VW.com www. they are unlikely to have any dealings with CLC officials.org www. and History It should be noted that the CLC does not become directly involved in contract negot iation or the grievance process. such as the Vancouver and District La bour CounciL T here are links to Labour Councils at the CLC website. L1bour Councils do not become directly involved with employers in the negotiation or administration of collective agreements. The Council will have bylaws and a constitution. . The website for the British Columbia Federation of Labour has conunentary on the need for child care. Labour Councils are often active in United Way campaigns. conununity and charity work. When a province is considering amendments to workplace legislation. You should visit a Labour Council's website to see examples of typical activities. When a local belonging to a Labour Council is on strike. the Federation of Labour will put forward a union position. some CLC-affiliated locals do not join the Council. The constitution of the CLC requires its affiliated unions to join the Labour Council in their region. the Council may provide assistance by soliciting financial support from other locals. For example.ca Local unions that belong to a Labour Council pay a levy based on the size of their memberships. Education and training provided by a Labour Council. might relate to topics such as union stewardship or legislation. Locals handle the negotiation and administration of collective agreements with the assistance of the national or international union. Processes. and assisting locals on strike. KEY FEATURES O F UNION S TRU C TURE T his section will consider significant aspects of union structure. Locals of unions not affiliated with the CLC may choose to join a Labour CounciL Functions of a Labour Council Labour Councils work to advance the interests of unions at the regional or municipal leveL Their functions include political activity. Organiza tion and Governance Website for the Vancouver and District labour Cou nci I : www.bcfed. the federations in British Columbia and Ontario have recently made presentations relating to changes to employment standards legislation. The provincial federations of labour do not become directly involved with the negotiation or administration of collective agreements. com/sitemap Chapter 3 Unions: Objectives.vdlc. including the fragmentation of the labour movement. often undertaken in conjunction with the CLC. T he provincial federations also become involved in broader economic and social issues in a province. however. A Labour Council is an association of unions in a municipality or region. training and education. LAB OUR CouNCILS A l abour Council is an association of uni ons in a municipality or region. St ructure. An example of a Labour Council's political activity can be found at the website for the Winnipeg Labour CounciL The council has campaigned against the privatization of the city's wastewater management system. 21 A provincial federation's educational efforts are sometimes made in partnership with the CLC. The federations may support striking workers by encouraging a boycott of the employer.64 Website for the British Colum bia Federation of labour: www. and are represented by delegates who elect officers to do most of the Council's work. and History Provinces enact changes to legislation affecting the workplace from time to time. and labour relations legislation have been shaped by years of history. they joined Canadian national unions. and History Union Fragmenta tion By international standards.6 percent of union members belonged to international unions . emphasizing issues and events that have an impact on unions and employers today. Present-day attitudes and objectives of unions and employers. making up 67 percent of the labour movement. Subsequently. only four unions had memberships of more than 50 000. which we will summarize here. Some Canadian union branches broke away from their international unions after disagreeing on policy matters. The U.24 THE DEVELOPMENT OF UNIONS AND LABOUR RELATIONS Canada's labour relations system has been evolving since the days of the first unions in the early 1800s. negotiation practices. By 2009. Structure. making up 22 percent of unionized employees. the internat ional United Auto Workers (UAW) in the United States agreed to lump-sum payments linked to the employer's profitability instead of a traditional upfront wage increase. Processes. Canada has a large number of small unions. Some employers have dealt with national unions that may be more militant than international unions. It was noted above that Canadian unions have been more active in organizing employees than American unions. fighting against concessions and compensation contingent upon employer profitability.25 65 . 95 percent of Canadian union members belonged to U. However. A study of factors affecting the success rate of organizing drives in Nova Scotia over a 10-year period found that national unions had a higher rate of success than international unions. In 1984.23 There are several reasons for this increase in national union membership relative to international union membership. T he CAW gained a reputation for more militancy. T he increase in represen tation by Canadian national unions may be significant for a number of reasons. 22 Smaller unions may not have a membership base sufficient to support organizational efforts. When public sector employees were allowed to organize after 1965. even though the trend has been toward unions with a membership of 50 000 or more. headquarters of the international union pressured the Canadian branch to agree to this type of provision in a contract being negotiated with GM Canada.S. Canadianization of Unions In the early 1900s.-based international unions. most of the Canadian locals of the UAW broke away and formed a new national union. Readers who wish to explore the history of the labour movement further should refer to more detailed accounts. only 27. 23 unions had memberships of more than 50 000.Chapter 3 Unions: Objectives. or provide adequate support to locals for contract negotiation and the administration of a collective agreement.S. there is evidence that international unions are not as effective in organizing campaigns as Canadian national unions. Key Considerations 3-4 lists key dates and events. In 1966. T here does not appear to be any research examining whether national unions have made greater efforts to organize than the Canadian branches of international unions. the CAW. The establishment of unionization in the public sector increased national union membership relative to international membership. As of 2009. T he branch refused to follow the international's lead and negotiated a contract with a standard wage increase instead of payments linked to profitability. and social factors.. political.S. Snyder: federal Industrial Disputes Investigation Act found to be beyond 1925 federal juri sd ictio n 1929 Start of G reat Depressio n Co-operative Commonwealth Federation (CCF) established 1932 1935 Wagner Act establishing collective bargaining rights passed in U nited States Industrial uni ons affi liated w ith Congress of Indu strial O rganization (CIO) expelled from TLC 1939 Canad ian Congress of Labour (CCL) formed to pursue unio nization of industrial employees 1940 1944 Privy Council Order 1003 establi shes collective bargaining rights in Canada Federal Industrial Relations and Disputes Investigation Act (now the Canada Labour Code) and prov incial 1947early 1950s labour relations statutes passed 1956 TLC and CCL merge to establi sh the Canad ian Labour Congress New Democratic Parry established to succeed CCF 1961 1967 Public Service Staff Relations Act establi shes collective bargaining rights in federal publi c serv ice. and how does their response affect union-management relations? 2. similar provinc ial legislation subsequently enacted Federal wage and price controls program 1975 1982 Federal public sector wage constraint program imposed Canad ian division of United Auto Workers breaks away from international and establi shes Canad ian A uto 1985 Workers union 1991 Federal government freezes public sector wages. subsequently some provincial governments adopt restraint legislatio n 1994 Federal government extends collective agreements w ith public service employees and suspends salary in crements Supreme Court of Ca nada ho lds that the freedom of association prov ided in the Charter inc ludes a proce2007 dural right to collective bargaining in the Health Services case We will see that the development of the labour relations system has been affected by economic. legal. Processes. keep the following questions in mind: 1. and History Considerations 3-4 Events in the Development of Labour Relations 1812 1860s 1872 1875 1886 First unio n locals of ski lled craft workers established U. H ow have employers reacted ro unions.26 As this history is reviewed. H ow has government acted as the regulator of the labour relations system and as an employer? ..66 Chapter 3 ~ . establi sh the O ne Big Union 1918 Winnipeg general strike 1919 1920s Communi st Party oi Canada active in uni on organi zing Toronto Electric Commissioners v. Unions: Objectives.-based unions begin o rgani zing in Canada Unions press for nine-hour work day Knights of Labour begin organizing Canad ian employees A merican Federation oi Labour (AFL) established in the United States and Trades and Labour Congress (TLC) established in Canada Federal Con ciliation A ct provides fo r voluntary conc iliation 1900 Knights of Labour expelled fro m TLC 1902 1907 Federal lndustrid l D isputes Investigation Act passed requiring conciliation in specified industries Western unioni sts expe lled from TLC. St ructure. including yellow dog contracts.Chapter 3 Unions: Objectives. Saskatchewan.an early indicator of how the economic environment could affect unions. Unions sought a reduction to a 9-hour day and a 54-hour week. H owever. T hey were concerned with protecting their craft status from unskilled workers and providing assistance to individuals who were sick or unemployed. the obligation to bargain with the union. In the 1870s. extremely hazardous working conditions. referred to below. Does the past help or hinder such cooperation? EARLY UN IONS The first labour organizations. including unguarded machinery that could amputate limbs. In the 1860s and 1870s. Employers also dismissed union supporters and used blacklists to identify and avoid hiring union supporters. because poor working conditions still exist in some workplaces. Unions would contend that there is still a need for unions. and other centres. there were attempts to form a national congress made up of local unions. did not exist. made up of skilled craft workers such as printers and shoemakers. and legislation have changed since these early years. hours of work were an issue. Yellow dog contra cts are agreements that prohibit unionization. The basic rights of employees and unions that are part of today's labour relations system. including the right to organize. Organizing a union was an illegal conspiracy in restraint of trade and union supporters could be arrested and jailed. The legal environment was hostile to the organization of unions until changes in legislation in 1944. As the law did not require employers to recognize or bargain with them. the laws preventing the restraint of trade were applied to union organizing activity. or take care of bodily functions. A strike in Estevan. unions used recognition strikes to force employers to deal with them. Processes. in 1931 led to violence and the deaths of three workers. Craft unions and the labour congress they belonged to did not encourage the organization of unskilled workers in industrial unions. some recognition strikes escalated into violent conflicts. how unified have unions and workers been. and History 67 3. Until the law was changed in 1944. that sometimes faced heavy employer opposition. and how does this affect the position of unions today? 4. employers. they are no longer necessary because working conditions have improved. The development of the labour relations system might be viewed in the context of how unions. As unions have developed. formed in Canada in the early 1800s. and noxious air quality. unforrunately. There was no employment standards legislation regulating hours. . Employers engaged in practices to avoid unions. We will see that the division between craft unions and industrial unions was an issue that divided the labour movement and delayed its development for many years. and the Canadian Labour Union was the first of these to be established. and unions. established in a hostile legal environment. rest. Montreal. T he working conditions of many employees in the late 1800s and early 1900s may be the basis for some observers claiming that while unions were necessary at one time. and prohibitions against discrimination for union activity. employers.agreements with employees that they would not join a union. were independent local unions in Halifax. piecework wage rates that varied from worker to worker according to management whim. an economic downturn in the 1870s led to the demise of this organization. The UFCW has referred to employees working at a mushroom factory under conditions the union described as appalling: nonstop 12-hour shifts with little or no time off to eat. There are calls for a more cooperative relationship between government.27 In summary. Prior to 1872. the first unions were local craft organizations. Structure. and workdays could be 10 or more hours a day for six days a week. tlus was not the only incident in which workers were killed or injured. as opposed to seeking broader economic and social reform that might benefit all workers. which caused hardship to the public. Although there were some early efforts to organize industrial workers. The primary tool of business unionism is negotiation with the employer.S. and was heavily influenced by the AFL.S. The philosophy of the U. political activity is secondary. but it is also influenced by the more general climate around us: laws. This American influence. Canadian unions affiliated with the TLC emphasized the organization of craft.S. counterparts. Social unionism is concerned with improving the compensation and working conditions of bargaining unit members. In the same year. had both positive and negative effects on the development of the Canadian labour movement. In 1900. it was not until the 1930s that a significant effort was made to organize them in Canada on a widespread basis. which it describes as follows: "Our collective bargaining strength is based on our internal organization and mobilization. The American Federation of Labour (AFL). stronger. the environment. and the international economy. education. The influence of the U. the Trades and Labour Congress (TLC). and influencing. and we must concern ourselves with issues like housing.S. but it also seeks broader economic and social change. In the late 1800s and early part of the 1900s.S. employers moving work to non-union workers in Canada.95 percent of Canadian union members belonged to international unions based in the United States. For example. the economy. which is focused on improving the compens. Social unio n ism is concerned with broad economic and socia l change tha t benefits all of society. and History ENTRY OF INTERNATIONAL UNIONS AND DEVELOPMENT OF LABOUR FEDERATIONS Busin~ss unionism focuses on the improvement of the terms of employme nt through negotiation with the e mployer. In the 1860s. St rucrure.S. taxation. a federation of national and international craft unions. Following a strike in the coal industry. The U. Some Canadian unions still maintain a more conservative business unionism philosophy. The legal environment continued to be unfavourable to unions. Canadian workers were drawn to U. organizing drives initiated by U. which has since diminished. the general direction of society. " 28 Although some Canadian unions became more involved in politics than their U. the first central labour federation to succeed in Canada. unions led to the organization of thousands of Canadian workers. unions because they were larger. medical services.S. International unions dominated the Canadian labour movement for a number of reasons. the federal government passed the . Social unionism means unionism that is rooted in the workplace but understands the importance of participating in. unions was what has come to be known as a business unionism.-based unions sought to organize Canadian workers to avoid the possibility of U. including larger strike funds. The CAW has proclaimed itself to be committed to social unionism.'ltion and working conditions of bargaining unit members.-based craft unions organized skilled workers and did not pursue the organization of semiskilled and unskilled industrial workers. Furthermore. policies. This was also a time when some Canadians worked in the United States for part of the year and membership in an American union could be an advantage when seeking employment. was established. and had more resources available. By 1902. unions based in the United States started to organize workers in Canada. Processes.68 Chapter 3 Unions: Objectives. was formed in the United States in 1886. The U. which was a response to strikes and provided for voluntary conciliation of contract disputes. Business unionism has taken a more conservative approach to public issues in the past. business unionism was the dominant philosophy of Canadian unions until the 1970s. international unions and the AFL affected the philosophy and scope of the Canadian labour movement. Subsequently.S. the TLC followed the AFL practice of not affiliating itself with any political party. and social attitudes. the federal government passed the Conciliation Act. our lives extend beyond collective bargaining and the workplace.as opposed to industrial workers. and in 1939 the TLC. the union had to resort to a recognition strike. unions. T llis legislation required employers and unions in affected industries to submit contract disputes to a tripartite conciliation board before a stri ke or lockout could legally take place. expelled them. The Knights of Labour. the affiliates joined the Canadian Congress of Labour (CCL). Some observers view the 1919 Winnipeg general strike as a turning point in the history of labour.Chapter 3 Unions: Objectives. Snyder. T he CIO became the Congress of Industrial Organization. In the case of Toronto Electric Power Commission v. Processes. At the TLC convention in 1902. the federal government's authority to enact the Industrial Disputes Investigation A ct was challenged. Because there was still not any legal requirement that employers recognize a union. rubber. the federal govenunent having jurisdiction over only about 10 percent of the workforce. and the law still did not require employers to recognize or bargain with unions. ruled that the federal legislation could not be applied to the employer. The strike ended after strikers clashed with the RCl\llP and two workers were killed. At a TLC convention in 1918. It should be noted that this legislation was aimed at preventing strikes and lockouts. This episode was significant because it may have ended any further attempts to establish a more radical labour movement in Canada. Structure. they started a new industrial muon in western Canada. and the AFL expelled the CIO in 1937 . the Knights of Labour was expelled from the TLC under pressure from the AFL. which heard appeals from the Supreme Court of Canada at that time. In 1940. T he CIO subsequently had success organizing industrial workers in the auto. The Knights could be viewed as a forenuUJer of social unionism that was to develop in Canada many years later. there was a court decision that significantly affected the labour relations system. Snyder is significant because it established a divided jurisdiction for Canadian labour relations. and eventually spilled over into Canada. The Knights sought to improve all of society through education and political efforts and did not seek improvements just in the workplace through collective bargaining. INDU STRIAL UNIONS T he first attempts to organize workers were also influenced by U. This legislation was the founda tion for the compulsory conciliation provisions now found in most jurisdictions. which pursued organizing by industry and was more active in politics than the TLC. It also illustrates that the legal environment continued to be hostile to muons. came to Canada in 1875. A Committee of Industrial Organization (CIO) was formed in the AFL in 1935 to pursue the organization of manufacturing workers. T he craft unions in the United States opposed the effort to organize industrial workers. the British Privy Council.S. including employees in industries such as banking and interprovincial transport. whose objective was the organization of manufacturing workers. T he Winnipeg Labour Council supported the workers' demands. It started when metal trades workers walked off their jobs to support demands for union recognition and wage increases. 69 . western uniotlists who held socialist beliefs and sought to orgmlize on an industrial basis were defeated. the conflict between U. again influenced by the AFL. Although the Supreme Court of Canada upheld the legislation. and over 30 000 other employees walked off their jobs in a general strike. CIO affiliates in Canada also organized on an industrial basis. In 1925. and other manufacturing industries in the United States. and History Industrial Disputes Investigation A ct in 1907. because labour relations were a provincial matter. the One Big Union. unionists who wanted to pursue the organization of industrial workers and those who did not continued. In 1919. In the 1930s. Some Canadian orgmlizers used the CIO name to organize employees in Canada. a union originating in the United States. The employer involved contended that the federal govenunent did not have the authority to pass legislation regulating its business.S. as parr of the U. such as threatening employees with dismissal or relocation.70 Th e Wagner Act established the right to organize. St rucrure. the National Labour Relations Act (Wagner Act) was passed. government's efforr to rebuild the economy after the Great Depression. The law no longer allowed employers to use many of their previous tactics to defeat unions. The law now made it illegal for unions to strike to obtain recognition. yellow dog contracts. In 1943. including interfering with employees' right to organize. Chapter 3 Unions: Objectives.S. intimidation and discrimination. largely because of U. Labour leaders called for legislation equivalent to the Wagner Act. Similar legislation was not passed in Canada until 1944. . a Gallup poll showed the CCF ahead of both the Liberals and the Conservatives. In 1935. This U. After the war. The early 1940s was a period of labour unrest with a large number of strikes. by providing for the following: • the recognition of employees' right to join a union • the establishment of a National Labour Relations Board • a cerrification process through which unions could obtain the right to represent employees by application to the Board • prohibition of unfair labour practices by employers. World War II led to aperiod of economic growth and increased union membership--doubled from 1939 to 1944. domination of a union. and pro hi bitio n of unfair labour practices in the U n ired States.S. was enjoying political success and attracting support from union members. it provided for: • the right to join a union • the establislunent of a Labour Relations Board • a cerrification process by way of an application to the Board • the prohibition of unfair labour practices by unions and employers • compulsory bargaining when a union has been certified • a compulsory conciliation procedure before a strike or lockout • a provision that no strike or lockout can occur during the life of the collective agreement • a provision that all collective agreements were deemed to contain an arbitration procedure for the resolution of disputes PC 1003 prohibited many of the practices employers had previously used to avoid unions. compulsory bargaining. and for the first time required employers to recognize and bargain with certified unions. and refusing to deal with a union. and History T he drive to organize industrial workers in Canada did not have the same success as it did in the United States. Using PC 1003 as a model. a socialist party. such as threatening employees. The Wagner Act established a new regime for employers and unions. The legislation covered only industries within the federal jurisdiction.29 The demands of labour and the political threat of the CCF led to the enactment of Privy Council Order 1003 in 1944 .S. legislative changes. the provinces subsequently enacted their own labour relations statutes. the federal government enacted the Industrial Relations and Disputes Investigation Act. which covered provincially regulated employers. PC 1003 was a wartime labour regulation that brought to Canada the principles established by the Wagner Act.as unemployment fell and the cost of living increased. legislation was a major public policy development. the Co-operative Commonwealth Federation. At this time. and discrimination against employees for union activity • the requirement that employers bargain in good faith with a union certified by the Board Privy Coun cil O rder 1003 established the rights and obligations fundamental to labour relations in Canada. which incorporated the principles established in PC 1003. The federal legislation is now Parr 1 of the Canada Labour Code. Processes. The foundation of modern labour relations legislation. Chapter 3 Unions: Objectives. policies. From 1964 to 1969. Processes. climbing from 1. Some private sector professional employees who had not previously organized pursued unionization after they witnessed the gains made by public sector employees. which facilitated union organizing. legislation at one time provided for a mandatory certification vote. strategies.3 percent in 1940 to 30.5 percent. UNIONS AND POLITICS Unions become involved in political activity for a number of reasons. there were two rival labour congresses in Canada. most public sector workers still did not have the right to unionize. Collective bargaining rights for public service employees indirectly led to the unionization of white-collar and professional employees in the private sector. and has recently been amended again by a Liberal government to require a vote. and access to education. We will see in Chapter 6 that in some jurisdictions a union can obtain the right to represent employees on the basis of signed membership cards without a vote of employees.S. 30 Unions are also interested in issues that affect workers away from their jobs. Surveys of unions to determine their goals. and practices have found that the majority of unions engage in political action to change public policy and bring about social and economic change. and the 1944 change in the legal environment with the passage of legislation supporting collective bargaining.7 million in 1984 to 4. Events in British Columbia and other provinces illustrate how the labour movement's fortunes can change according to who holds power in the province. and History After the formation of the CCL.2 percent. the environment. They can involve themselves in a number of ways: electing independent labour representatives. T he granting of bargaining rights to public sector employees had a major effect on total union membership and the composition of the labour movement. From 1965 to 1984. providing federal employees with the right to organize for the first time. which was reversed in 1965 when public sector employees were given the right to organize. Although union membership has increased from 3. which extensively regulates union-management rela tions and can make it more or less difficult for a union to obtain the right to represent employees. T he federal government enacted the Public Service Staff Relations Act in 1965. a vote is mandatory before a union can obtain bargaining rights. union density increased until it peaked in 1984 at 37. such as the privatization of health care. Union membership has experienced spurts of growth caused by the economy and changes in labour relations legislation. In British Columbia. T here was raiding by unions associated with the TLC and the CCL until 1956 when the two congresses merged to form the Canadian Labour Congress. because of the improvement in the economy caused by World War II and the enactment of PC 1003. the influence of the U. working within and 71 . with some provinces providing for arbitration instead of the right to strike. union density has slowly declined over this period to 29. Union density increased from 16.5 to almost 3 million members. One is to influence labour relations legislation. supporting a political party that adopts favourable policies. Union density started a decline in 1959. Structure.3 percent in 1948. By the early 1970s.-based AFL.6 million in 2009. union membership almost doubled. It was later amended by an NDP government to dispense with a vote. The key points that should be noted in the development of labour relations are the division between craft and industrial unions. In other jurisdictions. PuBLIC SECTOR UN IONIZATION Until the mid-1960s. the provinces had enacted public sector collective bargaining legislation as well. Saskatchewan was the first province to grant collective bargaining rights to public sector employees and establish a public health care system. the NDP was established to succeed the CCF. This translated into gains for unions in labour relations legislation and social policy. In 1943. At the federal level. A Progressive Conservative government elected in 1995 reversed most of these amendments. Political activity by unions is not a new development. With the assistance of unions. including a mandatory just cause provision in collective agreements. the CCF was a factor causing the Liberal government to shift to the left and enact social legislation. which made the union certification process easier and provided for other changes. worked to organize industrial unions and was connected with much of the organizing activity of the early 1930s. T he Conununist Party of Canada. some labour candidates were elected to municipal. In the furure. the CCF went into decline./ have advocated strategic voting to attempt to avoid a Conservative government. Structure. the Knights of Labour engaged in political activity in Canada. In 1932 the Co-operative Commonwealth Federation (CCF). Although the party never formed a government. . The econo1nic enviromnent has included periods of recession and the threats posed by free trade. After that. including earlier closing hours and improved public transit. Despite the fact that union leaders have encouraged union members to vote for the NDP. Recent developments in these three interrelated areas will be briefly considered here. Some employers have fought union certification. In recent elections. was established. 31 The federal and provincial governments also implemented some of the Knights' recommendations. they have not done so in significant numbers. a socialist party that included labour. and how to pursue them. and others have engaged in hard bargaining. there was an ongoing battle between the CCF and the Communist Party of Canada over who would play the leading role within the union movement. forming a government in Saskatchewan. the NDP enjoyed some success at the federal level into the 1970s. In 1961. they have at times disagreed over what political objectives to pursue. From the creation of the CCF to the late 1940s. Although at one time the Communist Party of Canada had more coJmections with unions than the CCF. and the Labour Day holiday. In Ontario. Legislative changes. Governments have restricted bargaining outcomes and weakened the position of unions. provincial. and History supporting one political party such as the NDP. unions will have to determine if they should maintain formal ties to the NDP or support whichever party will produce the best results for labour. established in 1921. and employer policies and practices have all posed challenges. including factory legislation. it was able to influence policy. NDP provincial governments have amended labour relations legislation to make it more favourable to unions. farmers. the labour movement playing a central role in the establishment of the party. the CCF eventually prevailed. the NDP has been able to form governments in several provinces. In the early 1920s. women's right to vote. some union leaders such as Buzz Hargrove of the CA\Y. At the provincial level. Processes. in 1993 an NDP government enacted what is commonly known as Bill 40. H owever. The relationship between the NDP and unions poses problems for both sides. the CCL passed a resolution recognizing the CCF as the political arm of labour. After 1875. and was able to make some gains at the municipal level. especially in years when it was part of a minority government.72 Chapter 3 Unions: Objectives. the CCF had some political success at the provincial level.32 From 1941 to 1943. and others. The connection of some unions with the Conununist party was the basis for some employers to attack all unions. Recent Developments Developments since 1975 have not been favourable to unions. the economy. including the family allowance and PC 1003 in 1944. and federal office. or using more radical methods such as a general strike. again in response to inflation. the unemployment rate remained significantly higher than it was at the start of the recession. Provincial governments followed suit. Economic Developments In the period since 1975 the economy has been less favourable to unions. wage increases negotiated under major collective agreements averaged 1. the unemployment rate was 11. 35 Employer Opposition and Hard Ba rgaining It may be difficult to determine whether there has been an increase or a decrease in employer opposition to unions. In 1991 the federal government froze public sector wages and imposed back-towork legislation. There was a si_x-month strike. In the first quarter of 1993.!\FTA have not been as negative as unions predicted. A recession in 1981 caused the loss of thousands of jobs. But clearly some employers still fight unionization by means both lawful and unlawful. Most employers would not likely admit they oppose their employees unionizing. however. Some studies show that the overall effects of N •. This type of employer opposition was one of the reasons why Ontario adopted first contract arbitration.3 percent. and 41 percent of private sector employees covered by a "major collective agreement" were subject to a wage freeze or a rollback. in 1982. This meant that restrictions were placed on the results unions could achieve through contract negotiation.Chapter 3 Unions: Objectives. Processes. The "6 and 5" program resulted in almost one-third of organized workers losing the right to strike for up to three years. Employers have been able to obtain wage concessions as high as 40 percent. which is discussed in Chapter 8. Structure. and studies do not likely reassure individual employees who have lost their jobs. 34 H owever.) T he recession of 2008-09 referred to in Chapter 2 has been a challenge for unions and employers. the federal government established in the public sector a wage conrrol program that limited increases to 6 percent in the first year and 5 percent in the second year. There was another economic downturn in the early 1990s. Although there was an economic recovery in early 2010. attempts to unionize Eaton's were unsuccessful when the employer stalled negotiations and refused to make any significant concessions in a collective agreement. The high rates of inflation in the mid-1970s reduced the real income of many workers. NAFTA created both winners and losers. In the 1980s. in 1993 Ontario established social contract legislation that rolled back wage increases in collective agreements previously negotiated and effectively displaced free collective bargaining for public sector workers for three years. For example.5 percent. it limited the outcomes unions could achieve. The provinces enacted similar public sector wage controls. and represented 55 percent of unionized workers at that time. Subsequently. the lowest increase level recorded in 15 years. Unions predicted that the agreement would lead to the loss of jobs and lower wages in Canada. . in response to high inflation the federal government imposed a program of wage and price controls on both the public and the private sector that prohibited wage increases above specified levels.33 ("JVlajor collective agreements" covered bargaining units with 500 or more employees. This legislation did not affect the right to bargain or the form of bargaining. and the union subsequently lost its bargaining rights. Attempts to organize the banking industry have been unsuccessful largely because of employer opposition that has included harassment and transfer of union Social contrac t legislation rolled back wage increases in collective agreements. The economic effects of the 1994 North America Free Trade Agreemenr (NAFTA) are conrroversial. and resulted in an unemployment rate of 12 percent. Some employers have clearly used the threat of relocation to the United States or JVlexico to force unions to agree to lower wage increases or wage rollbacks. especially in the manufacturing sector. By 1993. and History 73 Legislation In 1975. and how does this affect the position of unions today? T he history of unions has involved division between craft and industrial unions. A more cooperative relationship cannot be established where employers continue to oppose un1ons. and different approaches to political involvement. Unions have failed to develop a unified working class culture. "37 It took a sit-down strike that resulted in workers being attacked by police before General Motors recognized the United Auto Workers Union in 1937. let us now return to those questions. How have employers reacted to unions. some observers point out that governments have not al ways been supportive of collective bargaining. In the course of researching this book. Ford. In summary. and General Motors accept unions. At this point. Some would argue that the move was forced on government as opposed to its being a policy choice. differences in philosophy. how unified have unions and workers been. we will note that employer opposition to unions relates to the fourth question regarding cooperation. Situations involving employer opposition to unions should be put in their historical context. and History supporters. Although some governments have occasionally made amendments to labour relations legislation that are favourable to unions. However. in the 1930s the amomakers were "bitterly anti-union. T he response was yes. 3. Canada did not enact private sector bargaining legislation until a decade after the United States did. the author asked a representative of one of the unions that have attempted to organize WalMart if the union had considered a boycott to force the employer to deal with the union. Processes. it does not appear that governments have taken action that would encourage a more cooperative relationship between the three main actors in the labour relations system. How has the government acted as the regulator of the labour relations system and as an employer? Some governments have formally proclaimed that they support collective bargaining.36 Wai-Mart is another employer that has made headlines with its opposition to unions.. As unions have developed. four questions were posed. Early legislation such as the Conciliation Act and the Industrial Dispute Investigation Act was aimed at controlling strikes and did not establish collective bargaining rights. Structure. and how does their response affect union-management relations? Some employers have opposed unions using both legal and illegal methods. We have seen that govenunents have imposed wage freezes and occasionally rolled back wage increases provided for in collective agreements with their employees. 1. where workers support other workers.D AY L A BO UR RELATI O N S When we began considering the development of unions and labour relations. To summarize the developments and capture their significance. Today Chrysle. recent legislation in some jurisdictions. has been unfavourable.74 Chapter 3 Unions: Objectives. 2. Governments have ended numerous strikes with backto-work legislation. However. IM PLI CATI O N $ FO R PRE SENT. This opposition will be discussed further in the next chapter. but it was decided this was not a viable option . which deals with employer objectives and methods. Wai-Mart has closed one store after the employees voted to unionize. notably British Columbia and Ontario. 70 yellow dog contracts. p. p. Some employers and unions have attempted to move away from an adversarial relationship. 68 craft unions. including matters such as the authority to call a strike. and this opposition reduces the likelihood of union-management cooperation. 56 business unionism. p. employers. p. p. p. 48 Wagner Act. Does the past help or hinder such cooperation? It was noted in Chapter 2 that there might be reasons why conflict between unions and employers is the natural order. 2. p. Processes. and unions relied on recognition strikes to force employers to negotiate. p. unions in Canada have not suffered the decline in membership that U. 73 social unionism. 64 labour federation or labour congress.62 local union/local. encourages a transition to more cooperation. p. p. contract negotiation. 57 Privy Council Order 1003. 53 international union. p. which includes government and employer opposition to unions. Employers should clarify the relationship between the local union that represents their employees and the parent union. Some unions have adopted a social unionism philosophy. p. p. p. 67 75 . p. p. 57 industrial unions. many employers opposed unionization by their employees. Implications for Practice 1. Most union locals are part of a parent national or international union that provides support to the local in contract negotiation and administration. and History because the action would not likely find support. p. 48 union density. 68 trusteeship. 5. We will refer to alternative problem-solving approaches to bargaining when we consider the negotiation of a collective agreement. p. Accordingly unions will continue to attempt to influence governments. Prior to collective bargaining rights being established in legislation. Key Te rms business agent. The labour relations system has been developing since the first unions were established in the early 1800s. and administration is important to unions. 55 national union. 4. p. unions have experienced.S. and unions. 70 provincial labour federation. It does not appear that our past. 62 right-to-work legislation. Social issues such as the health care system are also important to unions. 53 directly chartered union. Structure. 58 Labour Council.Chapter 3 Unions: Objectives. There are calls for a more cooperative relationship between government. 3. Labour relations legislation that governs the right to organize. Apparently the absence of a working class culture leaves some unions in a weak position. which affect their relationship with employers and the activities they engage in. 62 independent local union. Unions have different philosophies. p. 61 union. Canadian unions are still key actors in the labour relations system. 4. 63 raiding. Some employers continue to oppose unionization. p. Although Canadian union density has fallen slightly in recent years. 52 social contract legislation. p. If you were a union membeJ. and outline two campaigns or issues the union is involved with. Determine if any news items illustrate the functions of unions referred to in this chapter. Describe how unions in the United States have influenced the union movement in Canada. and determine what the stated objectives of the union are. and briefly describe the federation's position on each. someone has referred to " my union. What is a Labour Council. Why is the local union the fundamental feature of union structure? 6. and why is this measure important? 2. Why do many observers say that recent developments have not been favourable to unions? Discussion Questions 1. What are the objectives of unions. In a conversation. A Canada Post employee was charged with theft after he left mail in his garage instead of delivering it. and what are its functions? 12. 16. and History Review Q uestions 1.76 Chapter 3 Unions: Objectives. Do you think that this was a good approach for the union to ta ke? We b Resea rch 1. Outline the significance of Privy Council Order 1003. 3. .ca Determine the occupation of the workers the union represents. and what methods do they use to achieve them? 5 . scan the union's constitution. The Canadian Union of Postal Workers referred to the incident as a sign of increasing workloads. 7 . How did the Wlagner Act influence labour relations in Canada? 15. 2. Identify two issues that are addressed. Monitor the news media for references to unions. 4 . How is the Canadian Labour Congress different from a national or international union? 11 . What are some of the characteristics of Canadian union membership. What are the functions of national and international unions? 8. What is union density." What are the possible meanings of this phrase? 9. Distinguish between national and international unions. Structure. Go to the website of a provincial federation of labour. and what is the significance of these features? 4. Go to the website of the Canadian Auto Workers Union at www. 2 . Why is union density higher in Canada than in the United States? 3. 14. would you want the union to have a philosophy of social unionism or business unionism? Explain.caw. Are there any advantages to belonging to an independent local union? 10. Do you think that union density in Canada will decline to the level in the United States? Explain. What are the key features of Canadian union structure? 13. Processes. the BCNU claimed that the LPNs would receive higher wages. Registered nurses have a four-year degree. the BCNU appl ied to w ithdraw its application when it became apparent that it would not have eno ugh of the LPNs signed up as members to succeed. and obtain more competent leadership w ho did not engage in radical conflict with the government. Structure. if any. W hat concerns." O n November 30. The HEU was in a bitter confrontation with the provincial government in 2002 that was o nly resolved w hen back to work legislation was enacted. the BCNU filed an application fo r certi ficati on for the LPNs in the province w ith the Labour Relations Board. A business manager for the HEU said." O ne HEU official stated. the HEU launched an outreach campaign to convince its members to remai n w ith the HEU. To justify the raid. They have spent a lot of money and used up a lot of people's time and it looks as though they may not have muc h to show for their efforts. 2009. Subsequently o n January 18. LPNs take a o ne-year course and receive an average starting sa lary of just under $25 an hour. A raid is the term used to describe an attempt by one union to take away members from another union. BCNU claimed that it had not been poss ible to accurately determine the numbe r of LPNs in the province because of their different locations. Processes. 2010. pay lower union dues. In 2009. There were approximately 5000 LPNs in British Columbia in 2009. W hat arguments can be made in criticism or in defence of raiding/ .Chapter 3 Unions: Objectives. To defend against the raid. "BCNU has been unsuccessful in restricting what the LPNs are able to do. would hospital employers have in this situation/ 2. Raiding is generally frowned upo n in the labour movement. British Columbia Nurses Union Licensed Practical Nurses (LPNs) in British Columbia hospitals are represented by the Hospital Employees' Union (HEU). "The BCNU ought to be quite disappointed with the raid campaign . the BCNU started a raid of the LPNs. and we believe this is about BCNU trying to contro l and restrict by other means. a nd Histo ry 77 Hospital Employees' Union v. and their starting wage is approximately $29 an ho ur. The British Colombia Nurses Union (BCNU) represents reg istered nurses in the province. BCNU wanted to withdraw its appl ication because an unsuccessful application would mean that a 22-month time bar o n a second application would be imposed. Questions 1 . The collective agreement provided in Article 3 that there would be no discrimination against a teacher because of the teacher's parti cipation or nonparticipation in the lawful activiti es of the union. In September 2006. The pink listing also advised teachers that individuals w ho accepted positions w ith the board would be disciplined by the union . Questions 1. The union continued the pink listing until November 2006 when a new agreement was reached for the occasional teachers. The collective agreements covering both teacher groups expired in August 2005. The board adv ised the union that the pink listing was to end immediately. This involved teache rs do ing only their req uired classroom work and additional duties that the col lective agreement required. Both pink letters advised teachers to boycott teaching positions in the two bargaining units. However. The uni on also placed ads in area newspapers. The discipline in cl uded publishing in a unio n publication the names of individuals w ho had violated the pink listing. such as a school theatre presentation. On previous occasions. however. Processes. the union and the board reached an agreement for the full-time teachers. A Memorandum of Settlement signed by tl1e parties pro. however. Discuss the methods used by the union in this situation. denying them serv ices from th e union for three years. they have separate collective agreements. vided that the pink listing was to be resci nded and there would be no reprisals. the union determi ned the names of teachers the board had hired and disciplined those involved in accordance w ith its constitution. W hen contract negoti ations did not produce an agreement." advising teachers across the country that there is a labour dispute w ith a parti cular school board and they should not apply for or accept a teaching position w ith the board. a nd Histor)' Little Eagle School Board The Little Eagle School Board employs 1300 full-time and 200 occasio nal elementary school teachers. Morale at several schools suffered because of conflicts between teachers relat ing to the pink listing. discipline or harass ment of any bargaining unit member as a result of the member's participatio n o r nonparticipation in the union's job action. The pink listing had significant consequ ences for some of the new teachers. the union started a work-to-rule campaign in January 2006. and disqual ifying them fro m ho lding unio n office for three years. 2006. The union's constitutio n provided that it was an offence to ignore a pink listing and offenders could be disciplined. 2. Both groups are represented by the Elementary Teachers Union. A second "pink letter" relating to the occasional teachers' bargaining was issued in April of 2006. the union imposed what is known as a " pink listing. In February 2006. On May 10. attacking the school board for fai ling to prov ide teache rs w ith adequate resources to provide a quality education. Occas io nal teachers fill in for full-time teachers who are sick or on leave. and w hat counter arguments could the union make/ . and decl ining to volunteer for extracurricular activities. The union stopped the work-to-ru le campaign immediately. W hat arguments could the employer make. the unio n adv ised the board on May 20 that the second pi nk listing would continue until a new agreement was reached for the occasional teachers. the board proceeded to hire teachers in 2006. the board had not hired teachers w hile a pink listing was in place. They were not able to access a union program that provided assistance to teachers w ho were having difficulty and a few had to resign .78 Chapter 3 Unions: Objectives. Structure. 3. Outline alternative labour relations strategies 6.96. 100 3. 1 . by virtue of its position of authority in work organizations. 101 4.98.3. Identify factors affecting an employer's labour relations strategy 100.John Godard 1. 101 .100. Explain the objectives of management and the processes or methods used to achieve those objectives 1.Management can.98 2. Describe the features of high-performance work systems. and explain their implications for labour relations 1. be viewed as the dominant actor in industrial relations. and seniority provisions. there was a period of economic growth in Canada with low unemployment. Frank St ronach is the founder and chairman of the board at Magna. In the new environment. processes. known as Fair Enterprise. T his chapter will review employer objectives. and joint presentations to. Employers had to deal with the competitive pressures caused by environmental factors referred to in Chapter 2. On the signing of the agreement. Magna recognizes that the CAW has the ability to be an important ally in addressing the many competitive challenges our industry is facing. competitive wages and benefits. Fair Enterprise is based on a business Charter of Rights that predetermines the annual percentage of profits shared between employees. Although the agreement provides that the parties w ill respect the rights of employees to choose whether to be represented by the union. t he union had attempted to organize Magna employees. The FFA provides that Magna will take steps to facil itate the union obta ining the support of employees. management.'' The agreement lists a number of collaborative goals and projects for the company and the union including working jointly to promote new investment and production opportunities. which strengthened the position of unions. some employers had been able to buy labour peace by granting concessions to unions. breakthroughs in benefits including pensions. and values of employers would affect both the processes they engage in and outcomes such as collective agreement terms. A recession in the early 1980s likely marked the starr of a shift in power from unions to employers. and allow the union to meet with employees prior to the vote on working time. The company agrees it will provide the union with a list of all employees. The agreement requires th e company to introduce the union at the pre-vote meeting and com municate to employees that the union and the company have a positive relationship. and examine the implications for labour relations. however. investors and society. Prior to the 1980s. An Employee Charter (http:/Avww.aspx) promises fair treatment. Most employers initially resisted union certification. the traditional. The Canadian Auto Workers union has 2 60 000 members in Ca nada. Magna had adopted human resource practices aimed at avoiding unionization. power. ensuri ng the needs of employees and society are balanced against the needs of our other stakeholders. and Strategy Magna International is an auto parts manufacturer employing over 18 000 people in 45 Canadian plants. some employers had to make changes in their methods of operation and take . provide union representatives access to employees during nonworking hours. After World War II. those efforts had not been successful-only three Magna plants had been organized. profit participation. Prior to 2007. The Magna website refers to Stronach as follows: "Mr. which establishes a new labour relations model that will facilitate Magna employees being represented by the CAW. applicable government representatives on matters of importance to the Canadian automotive industry. . The environment changed in the 1980s. Unions held the initiative in negotiations with employers. Stronach said that " .80 Chapter 4 Employers: Objectives. however. magna. investors and other business partners. Magna and the CAW announced that they had signed a Framework of Fairness Ag reement (FFA). and they were able to negotiate collective agreements that provided for increased wages. labour relations strategies. On the topic of communication the Charter provides for regular monthly meetings between management and employees. namely customers. to Magna.com/magna/en/about/culturelcharter/default. Chapter 1 indicated that the objectives. Non-union employers adopted some of the developments provided in collective agreements. In October 2007. Stronach introduced his management philosophy. and open communication. and dialogue w ith. it requires Magna to encourage employees to vote in favour of the agreement and union representation. . confrontational model of labour relations is unproductive and wastes energy that would be better focused on creating the conditions that would be fair to employees and would ensure that Magna rema ins competitive in the global automotive industry. and alternative employer approaches to human resources ma nagement. The Charter also provides for an employee hot line th at allows employees with complaints to pursue issues anonymously if they w ish to do so. The FFA illustrates a major shift in an employer's labour relations strategy. These rights are enshrined in a governing Corporate Constitution. Processes. after the union was certified the employer concentrated on negotiating the best possible collective agreement. and makes every employee a shareholder in Magna. one of the key elements of this chapter. and publications that will provide employees with information about w hat is going on in the company and the industry." Prior to 2007. reduced work hours. we must note that productivity growth is important and the measures currently used indicate that it has been higher in the United States than in Canada. M ANAGEMENT OBJECTIVES AND PRO CESSES To understand the policies and practices that employers adopt. level. labour. In the private sector. 8. downsized. and material resources. 4 Although part of the Canada/U. labour productivity is still an important issue. private sector employers will seek to increase efficiency or productivity. inadequate quality of math and science education in secondary FIGURE 4-1 Employer Objectives and Processes Objectives Processes or Methods 1.S.S. and resources used. Figure 4-1 summarizes employer objectives and processes or methods. Effi ciency o r productivity 2. is a measure of efficiency. Some observers have cited the following as possible reasons for the decline in Canadian labor productivity: insufficient investment in higher education. T here are some issues relating to the accurate measure of productivity. and where possible entered global markets. Productivity. 6.Chapter 4 Employers: Objectives. Canadian labour productivity has been a cause of recent concern. 5. Control 1. EFFICIENCY OR PRODUCTIVITY To maximize profits. 9. 3. and Strategy the initiative in labour relations. 4. employers have similar objectives. We do not need to review the details of the productivity debate here. Efficiency means that goods and services are produced with the lowest possible amount of capital. including the measurement of output in the service sector and problems caused by the value of the Canadian dollar. In response to the changed environment. Union avoidance and opposition measures Contract negotiation Lockouts Grievances and arbitration Court (legal) actio n Political activity Public relatio ns Collaboration w ith union Unilateral action 81 . exited some lines of business. it is necessary to consider the objectives those policies and practices are trying to achieve. capital. however. energy. 2 Information relating to productivity is available at Statistics Canada and the Canadian Centre for Living Standards.3 A Statistics Canada research paper on productivity has reported that by 2008 Canada's labour productivity was only three-quarters of the U. Processes. the ratio of the outputs of goods and services to the inputs of labour. There is disagreement over the measures that should be adopted to improve productivity. 7. We will review employer objectives here and consider processes below. productivity gap is due to the lower level of hours worked per capita in Canada. 2. In the public and non -profit sectors. employers adopted several approaches: They used new technology. the conventional wisdom is that management has two core objectives: the maximization of profit and maintaining control over the business. employers must be careful that wages stay at a level sufficient to recruit and retain the quality of workers needed to carry out the firm's strategy. Governments are facing increased demands for services such as health care. If hospitals. 8 In the pursuit of efficiency. T here are references to improving the " business" of government. They may also press for ability to be given more weight than seniority when filling job vacancies. The size and importance o f the nonprofit sector has been increasing. or the creation of two-tiered wage and benefits systems providing that newly hired workers receive lower compensation than current workers. But if they need a more highly skilled workforce. Some observers are using the language of the private sector to describe objectives and processes in the public sector. and inadequate investment in capital goods. Productivity is an important issue facing employers that could affect employees' desire to unionize and union-management relations. There may be some confusion over the size of the nonprofit sector. the suspension of cost-of-living wage increases. colleges. 5 Employers tend to favour measures such as tax cuts and deregulation. the allocation of hours was a key factor leading to employees seeking union representation. Examples include the Canadian Cancer Society and the Canadian Center for Living Standards. firms cannot press for the lowest possible wages without considering the consequences for employee recruiting and retention. and adopting changes in technology. employers in all sectors will pursue measures such as outsourcing. and universities are excluded. Some references to the sector include hospitals. and Strategy schools. there should be the same concern for efficiency or productivity. One of the reasons for this is that some nonprofits are now providing services previously provided by government. employers may be able to limit wage increases or even press for reductions. Employer demands may include wage cuts or freezes. Employers may pursue changes in such rules in the future so that they can increase flexibility and lower costs. some collective agreements have contained provisions that restrict multi-craft trades. It was reported that Starbucks adopted computer software that would minimize labour costs by scheduling more new employees who were paid less than experienced workers. Employer moves to outsource work to increase efficiency will be opposed by unions.6 Subsequently. education. insufficient employer training.3 million people? The percentage of employees who are covered by a collective agreement is higher in the nonprofit sector than it is in the for-profit sector. provides services in sports and recreation. which will have implications for contract negotiation and administration. 9 Concession bargaining may take place under the threat of business closure. hunp-sum payments instead of wage increases. and social services. which may be referred to as the third sector. Although in the public sector the provision of services is the primary objective rather than the pursuit of profit. employers are always concerned with keeping wage increases in line and increasing productivity. and viewing the public as "customers. loss of holidays." The nonprofit sector. making use of temporary workers. Union inflexibility is a sore point in employers' eyes. T he competitive pressures that employers face were referred to in Chapter 2 . they have made demands for unions to agree to demands for reductions in wages and benefits. housing. and there is the need to do more with less. Unions prescribe measures such as additional investment in infrastructure and training and development of employees.82 Concession bargaining is negotiation over employer demands for reductions in wages and benefits. colleges. If unskilled labour is all that is needed. and universities that are also included in the public sector. In some situations where employers have suffered financial reversals. \Vhen pushing for concessions. Processes. the sector still employs 1. Negotiating wage reductions or . Many of the alternatives in this area will lead to confrontations with unions. referred to as concession bargaining. But even where there is no such threat. excessive business regulation. the arts. In the past. Chapter 4 Emp loyers: Objectives. Chapter 4 Employers: Objectives. In some cases. In response to a Saskatchewan Labour Relations Board decision that it had committed unfair labour practices. in one case where a union had instructed employees not to participate in an employee suggestion program. 11 If employers are not successful in avoiding unionization. Recent environmental developments. It is also possible that a more hostile environment has influenced the attitude of some employers. tvlanagement's need to control the workplace has implications for the union-management relationship. to oppose the unionization of its stores. it may be able to lock out employees to force the union to change its position. an employer filed a grievance and an arbitrator found in favour of the employer. Employers could use all of the measures or processes referred to in Figure 4-1 to achieve the objectives of efficiency and maintaining control. Wal-Mart went to court claiming that the Board was biased. now faced with a competitive environment that threatens their ability to stay in business. the employer can pursue terms in the contract that protect its interests. Alternatively. 10 Managers need control to reduce uncertainty or risk. Accordingly. Many employers perceive that a union will prevent them from achieving either or both of their objectives of productivity and maintaining control. For the same reason. When the players' union refused to agree to a salary cap. to achieve its objectives. T he employer can use the grievance and arbitration process. Employers who once accepted unions. they can attempt to achieve their objectives when they negotiate a collective agreement with the union. including increased competition. which is elaborated upon in Chapter 9. employers can also use the process to protect their interests. employers must ensure that benefits are adequate. might reconsider this position. Although unions file most grievances. including the courts. and Strategy freezes could backfire and lead to excessive turnover. Subsequent chapters will elaborate on most of these processes. A recent illustration of this is the 2004-05 lockout in the NH L. If the employer has difficulty negotiating an agreement with acceptable terms. it was noted that unions engage in political activity. If employees pursue a union. Employers also support political parties and lobby governments for changes in policy. Processes. such as avoiding restrictions on outsourcing and technological change. For example. These measures will include practices such as paying higher wages and providing forms of employee representation. there will be an issue with the union. appear to have reduced the power of some unions. Additionally. In the previous chapter. the league imposed a lockout. 83 . if the employer decides to terminate an employee or install video monitoring equipment. although this is subject to the employer's duty to bargain in good faith discussed in Chapter 8. employers have this available as an option. some employers will take steps to prevent a union organizing their employees. Wal-Mart is an employer that has used various methods. For example. or in some cases resorting to legal action to oppose the union. CO NTR O L Control of the workplace has been cited as a management objective that is as important as efficiency. and eventually the union backed down and agreed to the salary cap and salary rollbacks. They may think that if they are not in control the organization will suffer. some employers will actively oppose the unionization of their employees by campaigning against the union. Although very few arbitration decisions are overturned in the courts through the process of judicial review. an overview is presented here. for some managers maintaining control or the right to manage may be based upon personal belief or ideology. employers will be able to avoid a collective agreement entirely. When a union filed an application to represent employees at the store in Weyburn. The methods that an employer uses to achieve its objectives will be heavily influenced by the employer's labour relations strategy. calling it a "job killer. Employers can also achieve their objectives by working collaboratively with a union to improve quality and reduce workplace accidents.the government dropped the legislation. Finally. For example. An organization's labour relations strategy refers to how the employer chooses to deal with the unionization of its employees. which are referred to when management rights are discussed in Chapter 7. the Saskatchewan Business Council. Wal-Mart launched a legal challenge that continued on until 2009 when a court overturned a Labour Relations Board decision to grant the union bargaining rights. we will refer to the relevant types of strategy described by Michael Porter. which we will consider next. EMPLOYER lABOUR RELATIONS STRATEGY A labour relations stra tegy is how a n employer deals w ith the unionization of its employees. which campaigned against the proposal. T here are several frameworks that classify strategies by referring to different variables. a nd Strategy Employers can also pursue public relations efforts to convince the public to support their cause. an employer could change the timekeeping system to make it more efficient without consulting the union. it is still possible for the employer to take unilateral action in areas not covered by the collective agreement. even though a union represents employees. and provided a draft letter opposing the legislation that could be sent to members of the provincial legislature. \V'aiJvlart is known as an employer that vigorously opposes unions and has used various methods to prevent its employees from unionizing. FACTORS AFFECTING AN EMPLOYER 'S LABOUR RELATION S STRATEGY Competitive Strategy of the Employer Competitive stra tegy refers to the basis o n w hi ch a firm competes.how it attracts buyers and improves its market share. Cost leadership is a competitive stra tegy based on having the lowest price. 12 Cost leadership is a strategy in which the firm competes on the basis of price. Employers strongly opposed the proposed legislation. A discount retail store that carries the same products as other stores.84 Chapter 4 Emp loyers: Objectives. There are several possible broad choices or strategies employers can adopt. Letters to newspapers denounced the legislation. provided a message that employers could transmit to employees. It requires cutting costs so that products or services can be sold at a lower price. T he message to employees indicated that the legislation would lead to job losses. A firm's competitive strategy refers to how it tries to compete in the marketplace over the long term. but sells them at a lower price. Although such action is subject to constraints. T he council organized a rally. Processes. is using this . The Saskatchewan government announced it was going to amend the province's employmem standards legislation to require employers with more than 50 workers to allocate additional hours to parr-time employees on the basis of their length of service." The employer's campaign was a success. it should be noted that the presence of a union does not eliminate management's residual right to manage. We will first consider the factors that may affect the employer's approach to unions and then consider alternative strategies. Saskatchewan in 2004. ranging from acceptance to extreme opposition. T he union appealed this decision. Employers formed an association. An incident in 2004 in Saskatchewan illustrates how employers can use political and public-relations activity to achieve their objectives. and they organized a campaign to oppose it. and the legal battle may continue for years. When a firm's strategy is based on cost leadership. it would have to be concerned about its compensation costs exceeding its competitors'. T he values and beliefs of the principal owner of a firm could affect the firm's approach to unions. younger. If managers oppose unions on a personal level. the success of this will depend on the union's reaction. the employer would more likely oppose unionization at its non-union locations. A successful differentiation strategy allows the firm to charge higher prices because the product is perceived as being worth more. and Strategy strategy. In the banking industry. some which have been unionized. It is reasonable to assume that an employer with only one unionized location among several would oppose the union because it is vulnerable.one that involves the firm competing on the basis of having a distinctive or unique product. if only one branch is unionized. Magna. . A firm that manufactures appliances that have better design features and dependability is using a differentiation strategy. it is more likely to be opposed to unionization. In contrast. Younger employees may be less familiar with unionization and their rights. may make it easier for employers to be more union-hostile. Management Values or Ideology The values or outlook of key ma nagers toward unions could affect the employer's labour relations strategy. or have a higher t urnover rate. they may be more inclined to oppose or try to eliminate the union even if the rational choice would be to pursue collaboration. Experience with Unionization If a firm has several operations. was at one time reported to oppose unionization because of the beliefs of its principal owner. such as those who are part-time. unions provide a voice to employees. and more likely to quit in the face of employer opposition. If the experience has been negative. the union's strength or power may influence how the employer approaches it. 13 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.Chapter 4 Employers: Objectives. Some unions have been more receptive to employer efforts to make changes and include the union in the change process. In contrast to a cost leadership strategy. a firm might adopt a differentiation strategy. however. If the firm were the only unionized competitor. referred to in the opening of this chapter. An employer might wish to pursue a more cooperative approach. employees who are 85 Differentiation is a competitive strategy based on having a distinctive or unique product. Processes. If an employer is considering a strategy that involves confronting or challenging the union. 14 Union Power and Ability to Oppose Employer If a firm is already unionized. its experience with collective bargaining may affect the employer's approach to unions at locations that are not yet unionized. since it would wish to avoid the higher compensation costs that could result. The Canadian Auto Workers union has been opposed to some employer initiatives such as the introduction of teams in some auto plants. On the other hand. it would be relatively easy for the employer to take a hard-line approach. Types of Employees Certain types of employees. which may suit a differentiation strategy. Also. Union or Non-union Status of Competitors A firm that competes in an industry that is heavily unionized may be less likely to oppose unionization than a firm whose competitors are all non -union. a differentiation strategy may be compatible with the higher costs associated with unionization. perhaps because of a strike. it may be more likely to adopt this strategy if the union is in a weaker position. a vote is mandatory in all applications for bargaining rights. and there is a delay between the union application and the vote. transferring lmion supporters. the employer tries to negotiate the best collective agreement possible. Union Avoidance or Substitution Union avoidan ce is a strategy aimed at preventing unionization using legal means to convi nee employees they do not need a union. T here is no equivalent provision in the United States. A union avoidance strategy may also involve forms of employee representation. there are 22 right-to-work states in the south and west that prohibit mandatory union membership and dues deduction. It might involve matching the union rate of pay in an industry. where the employer uses legal means to convince employees they do not need a union. employers in both countries have a second opportunity to defeat the union in negotiations.86 Chapter 4 Emp loyers: Objectives. and employment issues. to avoid unionization. may be less likely to quit. Processes. Legal Environment T he legal environment can affect the employer's ability to oppose unionization and the approach taken by the employer. there is a provision for the arbitration of first contract dispures if an employer takes an unreasonable position in bargaining: A reluctant employer may have a first contract imposed. Stelco is currently using an acceptance strategy. health and safety. Employers adopting this strategy are likely hostile to unions and may be willing to use both legal and illegal methods to avoid unionization. Imperial Oil has established industry councils that include both employer and employee representatives who make recommendations to the company on production. In the United States. a unionized producer of steel. and i f the attempt is successful tries to negotiate the best deal with the unio n. Moreover. It is reported that the banking and fast food industries have actively opposed unions in the past. which employers may relocate to. and more likely to support the union in a confrontation. However. in most Canadian jurisdictions. In several Canadian jurisdictions.S. and dismissing employees. Union avoidance is another strategy used to prevent unionization. POSSIBLE EMPLOYER STRATEGIES We will consider five possible labour relations strategies an employer might adopt when dealing with unions. Union opposition is the strategy used when the employer has no unionized employees and wants it to stay that way. Union acceptan ce is a strategy in which the employer remains neutral in an organizing attempt. In Canada. U. employees who have gone on strike have the right to reclaim their jobs at the conclusion of the strike. Although the company bitterly opposed unionization in . employers are allowed to hire permanent replacements for striking workers. Some have used tactics such as avoiding the selection of union supporters. This has led to the establishment of a largely union-free region. Even after a union obtains bargaining rights. which may permit employers to mount a campaign opposing the union. some jurisdictions allow a union to obtain the right to represent employees on the basis of signed membership cards without a vote of employees. Dofasco is a non -union producer that has matched union compensation existing at Stelco. Generally the legal environment in Canada makes it more difficult for employers to oppose unionization here than in the United States. Union Accepta nce Union accept:lJlce refers to a strategy in which the employer may not want to have a union but remains neutral in an organization attempt. In the United States. Union Opposition Unio n opposition is an employer strategy of attempting to remain union-free . T he steel industry is often cited to illustrate this tactic. and Strategy highly skilled and full-time have more invested in the workplace. If the drive succeeds. H owever. 15 Subsequently. The study considered employer reaction to organizing attempts in eight Canadian jurisdictions in the years 1991 to 1993. only 20 percent of employers did not oppose the attempt in some matmer. enduring a strike in the hope employees will become disenchanted with the union. U nio n r esistan ce is a strategy in w hic h the employer attempts to limit the further spread of unio ni zation in the organization .Chapter 4 Employers: Objectives. Union Resistan ce A union resistance strategy might arise in a firm that is partially unionized. in 1980 it accepted a union at a new plant where it was able to negotiate an agreement that provided the company with greater flexibility than it had at its other locations. 16 T his study suggests that employer opposition to union certification is more frequent and persistent than has been assumed in the past. the company unsuccessfully attempted to challenge the certification of the union in the courts. A uni on r em oval strategy involves the emp Ioyer attempting to rid itself of any unions. there is evidence that the predominant approach in Canada is union acceptance. STR ATE GIE S O F C A N A DI A N EM PL OY ER S It has been commonly thought that Canadian employers do not oppose unions as much as employers in the United States. A recent study examining employer opposition to unions at the organizing stage suggests that employers commonly oppose a union attempting to gain bargaining rights. . The firm attempts to limit the further spread of unionization. the union was not able to negotiate a collective agreement. such as extending wage improvements negotiated with unionized employees to non -union employees. for example union acceptance versus union removal. Sixty percent of employers admitted to engaging in active resistance to the union. The tactics used might include stalling in negotiations in the hope employees will become frustrated with the union. and only 17 percent followed the policy of actively avoiding further tmionization. After a union organized employees at a McDonald's in Canada for the first time. The adoption of a union acceptance strategy means that the employer will pursue processes that involve the union. 17 I M PO RTA NCE O F LA BO UR RELATI O N S STRATE GY The labour relations strategy adopted by management. Union Removal A union removal strategy involves the employer attempting to rid itself of any unions. A survey of unionized private sector firms in the early 1990s found that many firms engaged in hard bargaining and some had obtained concessions on wages and benefits. The organization's basic outlook toward unions will affect the extent to which the employer is willing to adopt less confrontational processes such as mutu al gains bargaining referred to in Chapter 8. and 12 percent admitted to committing unfair labour practices during the organizing drive. the majority still followed an acceptance strategy. and employees voted to terminate its bargaining rights. Only 9 percent had the objective of reducing or eliminating union influence. Once a union has obtained bargaining rights. This strategy may involve aspects of the union avoidance strategy. or attempting to use the legal process to challenge the union. Processes. 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. will affect the processes and policies of the employer. however. Opposition to the union was found to be the norm. such as joint union -management committees. and Strategy 87 the 1940s. Job redesign could involve job enrichment. including high commitmem. It can also include profitor gain-sharing programs aimed at encouraging participation. including a high road approach to HR M. and attempts to cut labour costs to compete with low-wage producers. A l ow commitm ent HR strategy involves traditional prod uction methods. eating areas. 18 The low conunitment approach involves the continued use of traditional production methods. Key Considerations 4-1 outlines policies and practices that are frequently associated with a HPWS. job redesign. are not new. and perhaps providing higher compensation. high involvement. they are traditional human resource management practices. little concern for the development of workforce skills. Information sharing includes providing employees with feedback on unit and company performance. however. Group bonuses are an other possibility. In order to compete using improved technology and organizational innovations. 20 Some of the features of a HPWS. It frequently involves moving to work teams that have various levels of authority. T he high commitment strategy may be referred to by alternative names. the mutual gains enterprise. Many of the features or components listed in Key Considerations 4-1 are self-explanatory. T he low road approach is linked to a cost leadership competitive strategy. employers must consider two alterative human resource management strategies or approaches to human resource management: a high conunitment or a low commitment strategy. adopting better technology and production systems. Just as there is no consensus on the name that should be applied to these systems. and grievance systems. a low emphasis on technological innovation. trained." HIGH-PERFORMANCE WORK SYSTEMS H igh-performance work systems (HPWS) may be referred to by alternative names. Features of High-Performa nce Systems An HPWS assumes that human resources are the key to competitive advantage for firms in an uncertain and changing environment. and a low emphasis on development of workforce ski lis. Some teams may be given authority to make decisions formerly made by managers. Processes. a few will be elaborated upon here. HR STRATEGIES OR APPROACHES H R MANAGEMENT \Vhen dealing with the new economic realities. T he low commitment strategy may be referred to as a low road or low-cost approach to HR!v1. higher compensation. and new human resource management. highly skilled. employers might move toward a "high-performance work system. using labour with more skills and perhaps providing higher compensation. a nd preferential parking for managers. 19 Some observers have noted that the term "high performance" assumes that the systems actually increase performance and that may not yet have been established. It includes practices . T he high commitment approach involves seeking a competitive advantage by pursuing product and service differentiation instead of competing on the basis of price. such as employment security. there is no definitive set of features or components of an HPWS. such as separate washrooms.88 Chapter 4 Emp loyers: Objectives. using labour with more skills. increasing the skills and responsibility involved in the work. investing more in training. and Strategy ALTERNATIVE TO A high commitment HR strategy involves the adoption of better technology and req uires investment in training and development of human resources. Minimizing status differences refers to eliminating practices. Contingent or incentive compensation refers to pay for knowledge systems as opposed to job-based pay to encourage learning. and motivated employees are required. Employee involvement is a key component of an HPWS. As part of this approach. a nd Strategy 89 Considerations 4-1 Policies and Practices for a High-Performance Work System 1. referring to the fact thar employees deal directly with managemem. advisory committees. Some of the proponems of HPWS nore thar in order for a system ro be successful. In order for employees to be able to work in reams and become more involved. and compensation. High standards in recruiting and selection 2. It appears that a majority of Canadian employers have adopted some high-performance workplace features and practices. M inimum status differences 7. Adoption of High-Performa nce Systems in Canada The evidence indicates rhat high-performance workplace systems have not yet been widely adopted in Canada.23 However. such as qualiry circles. Performance expectations emphas izing continuous improvement aimed at increasing employee participation. and Canadian research that shows high-performance systems produce positive financial results. meaning rhat employee representatives deal with management. which may make recommendations to management. Employment security s. Employee involvement 8. but did not provide for increased compensarion. conflict resolution. but only a few have adopted a complete packageY The majority mainrain a rraditional system in which little strategic priority is placed on human resources. Effectiveness of High-Performa nce Practices Whether high-performance pracrices have been effective is a matter of some debate. Sharing of financial and perfo rmance informati on 6. 22 The high-performance model seems to have been more widely adopted in the United Srates. Job redes ign 3. For example. Processes.S. while orhers are indirect. Training and skill development 10. especially in the areas of training and development. if an organization invested additional resources in training and skill development. . including formal committees with employee and managemem representatives. Dispute resolutio n systems 9. others have ( I \. and decision making. Comparative I)' high compensatio n contingent o n organi zatio nal perio rmance 4. and problem-solving groups. Some forms of parricipation may be direct. it cannot be adopted in piecemeal fashion because some of the components support each other. Some employers have gone as far as allowing these committees ro make binding decisions. The training and skill development required does not just refer to reclmical skills.Chapter 4 Employers: O bjectives. they will need training in areas such as communication. "Dispute resolution processes" refers to measures to protect employee interests. Some observers point ro U. A HPWS could entail additional costs. it is possible thar employees would quit and take their addirional skills to a new employer. and legal enviromnent in Canada. Processes.S. The firm's competitive strategy has implications for its labour relations strategy. grievance systems. Some have questioned if high-performance practices have had negative effects for employees. Employers who wish to pursue high-performance work practices should consider the extent to which the current collective agreement prevents their adoption." 24 Significa nce for La bour Rela tions T he adoption of high-performance practices by some employers has implications for labour relations.. political. Employers may seek contingent or variable pay plans for the purposes of increasing productivity that might include gain sharing and profit sharing. Where the firm's competitive strategy puts a premium on employee involvement and union cooperation. the reverse is also true. longer hours. Unions will seek protection in collective agreements from technological change leading to job losses. There is evidence that union participation and support of innovation programs can improve the chances of their success. 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. 3. 4. To improve product quality and productivity. it would appear that. including union removal. wh ich may not be suitable for some of these strategies.90 Chapter 4 Employers: Objectives. Imp Iications for Practi ce 1. it may increase the likelil10od of acceptance and success. Employers who wish to increase employee and union involvement will have to address these concerns. employment security. information sharing and accommodative union relation policies. including increased workload. In a later chapter.g. In the United States.. a strategy of union removal may not be advisable. The employer should address any such problems in contract negotiations. and a faster pace of work. . increased stress. Employers who wish to pursue high-performance work practices that do not require union approval because they are not covered by the collective agreement should consider the extent to which the union should be involved in designing such practices. . firms must pursue technological innovation." . group work organization. job ladders. the effectiveness of this approach is questionable. Where the employer seeks to implement changes such as variable pay that are different from established collective agreement terms. without first considering the social. on average. above-market pay). 25 Unionized employers seeking to adopt features of HPWS will likely encounter union resistance to some components of a HPWS. 2 . the likelihood of union resistance appears to be high. including professional personnel practices (e. increased employee involvement has been part of employer attempts to avoid unionization. Canadian employers should be wary of copying strategies adopted by some U. firms. a nd Strategy concluded. Although union involvement may not be required. TI1e firm's labour relations strategy should fit its competitive strategy. 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. formal training. we will refer to the long battle between Telus and its union that was caused in part by the employer's demand for variable pay. Canadian unions fear employee involvement is a tactic employers might use to corrupt employees and weaken the union. 7. p. Review the policies and practices associated with a high-performance work system in Key Considerations 4-1. p. What are the possible reasons for this? 4. Members of the association include the Canadian Federation of Independem Business. Generally Canadian employers have not adopted a strategy to eliminate unions. p. p. p. Find three items that an employer could use to oppose a union.com/home/index. 6. p. 86 union avoidance. Processes. Distinguish between a cost leadership and a differentiation strategy. 84 differemiarion.Chapter 4 Employers: Objectives. Web Research LabourWatch (www. 85 high commitment HR strategy. 88 union acceptance. 84 concession bargaining. 87 Revie w Questions 1. 3. How does legislation in Canada make it more difficult for Canadian employers to oppose unions? 3. What are the possible reasons for this organization's approach toward unions? 2. the Canadian Restaurant and Foodservices Association. and Strategy Key Terms competitive strategy. p. Explain which of these items could lead to disagreemem between a union and an employer. 86 union removal. 4. Describe the implications of a cost leadership or differemiation strategy for labour relations. 84 low commitmem HR strategy. 88 labour relations strategy. Discussion Questions 1. p. Outline alternative employer labour relations strategies. p. Idemify the factors affecting an employer's labour relations strategy. 5. p . The website provides information for employers who wam to avoid or eliminate a w1ion. Why will it be difficult for some employers to adopt what is known as a low commitment approach to human resources? 6. Explain the significance of a high-performance work system for labour relations. What are the objectives of employers and the methods they use to achieve them? 2. Wai-Mart is a firm that appears to be opposed to its employees joining a union.php) is a website operated by the Canadian LabourWatch Association. and the Retail Council of Canada. 91 . Distinguish between a high commitment and a low commitment approach to human resources. 82 cost leadership. p. Comrast the likely desire and ability of the following two employers unionization: to oppose a) a fast-food outlet b) a publicly owned nuclear power facility 5. 87 union resistance.l:lbourwatch. 86 union opposition. p . Wa lmart's respo nse to the success of www. comments and concerns. It prov ides hundreds of employees with jobs. There were ca lls for amendments to the legislation and changes at the Board. Outline the environmental facto rs referred to in Chapter 2 affecting til is situation. Through til is process.. In July of 2009 Wai-Mart filed an application for a court injunctio n to restrict the activity of a uni on website critical of th e company. In 2009 Wai-M art challenged the certification in court o n the basis that the chair did not have jurisdictio n and that th e amendments to th e Trade Union A ct required a vote. and th is further delayed the certification application. The Court of Appeal also indicated that the lower court's concerns regarding a possible bias in favour of unio ns by tl1e Labour Relations Board we re unfounded. one full year after the original applicatio n for certification. Identify the employer's labour relations strategy. Presumabl)' the unio n has jobs for the approximately 3500 to 4000 employees who would be put out of work if Wai-Mart . Wa i-Mart had some supporters in the ongoing battle w ith the union. there w as a related development in Q uebec. The president of the Saskatchewa n Federation of Labour referred to "economic terrorism" against Canadian workers. Some critics alleged that unio n contributio ns to the NDP party w hich was in power at the time made change unlikely. 2. Saskatchewan. In M ay of 2008 amendments to the Trade Union A ct that required a vote on certi ficatio n applications came into effect.92 Chapter 4 Employers: O bjectives. UFCW Canada National President Wayne Hanley responded saying " This injunction rec1uest is an over the top assault on effective freedom of speech . Wa i-Mart attempted to appeal th is decisio n to the Supreme Court of Canada. In February 2005. The applicatio n fo r certificatio n was the start of a legal battle that was ongoing in 2010. To lose something like that would be a majo r blow to the prov ince's econo my and employment levels not to mention the government's open for business slogan it shops around the country." Questions 1 . The chair of the Board continued to deal w ith the Weyburn application asserting that he had the authority to fi nish appli cati ons started before his term was ended on tile basis of the law as it was at the time of the applica tion. Wai-Mart filed an application to block the Labour Relat ions Bo ard fro m hearing the applicatio n alleging the Board was biased. Labour activists clai med mat this closing was intended to send a message to employees in Weyburn and elsewhere in No rth America about th e negative consequ ences of seeking unionization.ca is just anomer outrageous example of how tile largest retailer in the history of the world w ill use its bottomless legal budget to manipulate tile col lective bargaining process and do just about anything to discourage its 'associates' from joining the unio n.. In April 2005. helped alo ng by labour laws that favour unions far more than business. The union application to represent employees is an application for certificatio n and the details of this process are referred to in Chapter 6. a court decisio n rejected that applicatio n. The Court of Appea l overturned the lower court decision and ordered Wai-Mart to produce the documentatio n.wal martworkerscanada. Soon after the store o pened employees contacted the United Food and Commercial Workers Union (UFCW) seeking unio n representati o n. It pays taxes. and explain possible reaso ns for this strategy. W hile the Weyburn battle waged on. and try ing to share experiences w ith other 'associates' . Because we be lieve in maintaining an open environment of open communications. and Strategy Wai-Mart and the UFCW In November 2003 Wai-Mart opened a new sto re in Weyburn. Subseq uently there were numerous comments o n the situatio n in the media some of which were critical of the Labour Relati ons Board and the prov isions of th e Trade Union A ct that allowed a unio n to be certified w ithout an employee vote. It's a kneejerk response by Wal mart to the idea of its employees trying to und erstand their o ptio ns as workers. however. walked . The Board o rdered Wa iMart to produce documentation and Wa i-Mart appealed this decisio n. w hich had been uni onized for four months. someth ing that has been used by businesses as a clear illustration as to w hy companies avo id coming to Saskatchew an . In March of 2008 the new government end ed the term of the chair of th e Saskatchewan Labour Relatio ns Board w ho had been dealing w ith the UFCW certificatio n appli catio n. O n the appea l a lower court judge quashed the subpoena and in his decisio n appeared to suggest that the Board was biased in favour of unions.. . the NDP government was defeated by the Saskatchewan Party." In a 2007 prov incial election. In Apri l of 2004 the unio n f iled an appl ication w ith the Saskatchewan Labou r Relatio ns Board to represent the store's employees. O ne newspaper commentary prov ided as fo llows: "Thi s prov ince's unions are aggressive by nature. Subseq uently the unio n indicated that it would be appealing the decision . Wai-M art announced that it would close a store in Jonquiere Quebec. It was alleged that Wai-M art had provided managers w ith materials that showed Wai-M art was guilty of illegal practi ces including "A Manager's Toolbox to Remai n Unio n Free" . In December of 2008 a certificatio n order w as granted. a Wa i-Mart website stated that the company respects " the individu al rights of our associates and encourage them to express their ideas. the Supreme Court of Canada refused to grant Wai-M art leave to appeal and tl1e certificatio n process continu ed.. The unio n sought an o rder fro m the Board to require Wai-Mart to produ ce documents.. It is possibly the most popular retail outfit in the province.. Wai-Mart is a hu ge player in Saskatchewan. Processes. we do not believe mere is a need fo r third-party representation". In June of 2009 a lower court overturned the certification. ation (for example. either as an employer in the public sector or as grJardian of the public interest. roles. intervening and interacting with employers and employees to determine the outcomes of the system.The govemment can be viewed as an actor in the system in two different roles: as a regulator. 100. 40. 98. establishing both substantive and procedr~ral rules by enacting legis/.40 . and importance of Labour Relations Boards 29. Explain the composition. 29. and as a participant. 101.Morley Gunderson and Allen Ponak 1. 102 2 . collective bargaining and minimr~m wage laws). Explain the objectives of governments and the processes or methods used to achieve those objectives 3. 1 . including the regulation of labour relations outcomes through labour relations legislation. Regulating economy: employment and inflati on s. Some of the objectives overlap: for example. Regulating results of market economy: monitoring eq uitable opportunity. and outlined their objectives and methods. such as regulating the economy through monetary and fiscal policy. and minimum employ ment conditio ns 7. Regulation of labour relations outcomes 3 . have an indirect effect on employers and unions. In this chapter. We wiU briefly refer to other parties involved in labour relations. Contract negotiatio n 4 . the plant was reopened after the provincial government invested $70 million and the federal government made a contribution of $80 million . Legislatio n relating to labour relations. employ ment standards.2 million in the plant. Legal acti on . however. rewards. Other objectives.and methods available to governments to achieve their objectives. have a direct impact on unions and employers. Ontario. Providing ass istance and info rmation to empl oyers and uni ons rega rding labour relations issues 7. a Ford engine plant in Windsor. Regulation of labour relations processes 2. In Chapter 3. Publi c-relations 6. Prio r to the amendment unions in the province were able to obtain bargaining rights without a vote if they establ ished that more than 50 percent of employees had signed a union membership card. was shut down putting 900 people out of work. human ri ghts. Although essential ambulance service had been provided during the strike. we looked at employers and their objectives and methods. Maintaining office Processes or Methods 1. Monetary policy that provides for higher interest rates to control inflation is not directly aimed at employers and unions. Labour Relations Boards. In 2008. In November 2009. we will consider the third main actor in the labour relations system: governmenr. In 2008. In Chapter 4.94 Chapter 5 Governments. and Other Parries Recent news reports illustrate some of the ways that government plays a direct or indirect role in labour relations that w ill be considered in this chapter. and the methods governments use to achieve their objectives. GOVERNMENT OBJECTI VES AND PROCESSES Figure 5-l summarizes government objectives relating to labour relations. Monetary and fiscal policy 8. British Columbia enacted legislation to end a province-w ide seven-month strike by paramed ics. pay equity. In 2007. Aiding particular industries 6.the reasons for government involvement in labour relations. T his will include government objectives. paying special attention to labour relations boards. The Ontario government announced in 2010 that it would be investing an additio nal $81. Grievances and arbitratio n 5. we considered unions as actors in the labour relations system. it will affect them. Speci fic dispute resolution (back to work) legislati on 3. Some of the objectives and processes we will explore. Protecti on of the public interest 4. health and safety. and employ ment equity 2. Government Employers : efficiency and contro l 8. the health minister stated that it was necessary to end the strike to avoid a public health risk. Ownership of some enterprises 9. Saskatchewan amended its labour relations legislation to require a vote of employees in all applications for unionization. government attempts to regulate labour relations fiGURE 5-1 Government Objectives and Processes Objectives 1. htm http://www.org/en/nl/law.html http://www. Prior to government regulation.canl ii . The tides and websites for the relevant labour relations legislation for each jurisdiction are provided in Figure 5-2 . and negatively impact the economy.canlii .htm I http://www.html http://www. There may be conflict between some of the objectives and processes.html http :l/www.canIii . and O ther Pa rties outcomes also protect the public interest.org/en/pe/laws/statlrspei-1 988-c-l-1 /latestl rspei-1 988-c-l-1. Fiscal policy that reduces taxes to stimulate the economy should increase employment and thus affects the distribution of rewards.Chapter 5 Governments.html http://www. Prior to government regulation of the organizing process. Government efforts to regulate the economy also affect the distribution of rewards that may be a government concern.html http://www.canl ii . html 95 ./statlrsnl-1990-c-1-1/ latestl rsnl-1 990-c-1-1. The need for government regulation in this area was illustrated in the history of labour relat ions in Chapter 3. One process could help achieve several different objectives. For example.org/en/sk/law.org!en/ca/laws/statlrsc-1985-c-1-2/latestl rsc-1985-c-1-2. listing the rights of employers during an organizing campaign.org/en/nb/laws/statlrsnb-1 97 3-c-i-4/ latest/ rsnb-1973-c-i-4.org/en/ab/1 aws/statlrsa-2000-c-1-1II atest! rsa-2000-c-l-1.canlii . and requiring disputes during the term of a collective agreement to be resolved through arbitration.sometimes violent. employers discriminated against union supporters.canl ii. Some observers argue that efforts to pursue equal opportunity and regulate employment conditions through employment equity and employment standards legislation deter business. providing financial assistance to a particular industry serves the government objectives of regulating the economy and maintaining office.canlii.org/en/on/laws/statlrso-1990-c-1 211atest! rso-1990-c-1 2./statlrss-1978-c-t-17/latest! rss-1978-c-t-17. This legislation sets out rules regulating how a union obtains the right to represent employees.gnb. and the administration of collective agreements.html http://www.canl ii.org!enlbc/laws/statlrsbc-1996-c-244/ latestl rsbc-1 996-c-244 .canl ii.html http://www. strikes.were used to force employers to recognize and negotiate with unions.ca/0062/acts/acts/i -04.org/erv'qc/1 aws/statlrsq-c-c-27/1atest! rsq-c-c-27.html http://www.org/en/mb/laws/statlccsm-c-110/latestl ccsm-c-1 1O.org/en/ns/laws/statlrsns-1989-c-4 7 5/latestl rsns-1989-c-475. T he primary method governments use to regulate labour relations processes is labour relations legislation. FIGURE 5-2 Private Sector Labour Relations Legislation Jurisdiction Federal Statute Canada Labour Code Part 1-lndustrial Relations Alberta Labour Relations Code British Columbia Labour Relations Code Manitoba Labour Relations Act New Brunswick Industrial Relations Act Newfounell and and Labrador Nova Scotia Labour Relations Act Ontari o Labour Relations Act Prince Edward Island Labour Act Quebec Labour Code Saskatchewan Trade Union Act Trade Union Act Website http://www.canl ii.htm l http://www. REGULATI ON OF LABOUR RELATIONS PROCESSE S The key processes in labour relations are union organizing. contract negotiation. imposing a duty to bargain in good faith on both the parties.canl ii. La bour Relations Boards. ns. in 2009 the federal government started legal proceedings against U.gnb.trav ai l.Labour and Workforce Development O ntario . and some strikes and lockouts could harm the public.call br/i ndex. and Other Parries REGULATION O F LABOUR RELATIONS OUTCOMES Collective agreements.labour.on .ca/eng/labour/ i ndex. Labour relations legislation in all jurisdictions requires a strike be approved by an employee vote.Ministry of Labour Manitoba . Occasionally governments have passed back-to-work legislation to end a particular strike. H owever. For example.S.htm http:/AV\1/\V.gc. Steel to enforce commitments the company had made to Ottawa when it was allowed to take over Stelco.gov. be.ca .gov.Post-Secondary Edu cation. and back-to-work legislation. hospital workers in British Columbia and public service workers in N ewfoundland and Labrador have been legislated back to work in recent years. strikes.cal http:/AV\1/\v. Labour Relations Boards.Ministry of Labour Prince Edward Island.gov.Labour and Immigration New Brunswick .Community Serv ices. FIGURE 5-3 Ministries Responsible for Labour Issues Federal. Training and Labour Newfoundland and Labrador.htm I \1/\1/\V.ca \V\1/\V. Employment standards legislation sets our minimum terms of employment such as maximum hours that can be worked.Advanced Education.qc.aIberta. vacations. hrsclc.M inistry of Labour Alberta .call wei/ http:/AV\1/\v. Figure 5-3 lists websites for the ministries responsible for labour issues.Labour Relations Agency Nova Scotia . call ra/ http:/AV\1/\V. and employees obtaining alternative work. PROTECTION OF THE PU 8 LIC INTERE ST T here is a broader public interest that needs protection.gouv . Govenunents use several methods to regulate labour relations outcomes. Collective agreement terms could affect the economy by causing inflationary pressure. sh tml http:/AV\1/\V.Chapter 5 96 Governments. and lockoms are key outcomes in the labour relations system.Les services en relations du travail Saskatchewan .pe.mb. It is possible that a strike might not seriously harm the employer because it can carry on business using an inventory of finished product. Seniors and Labour Quebec . assistance from other unions. and pregnancy and parental leave.cal http:/AV\1/\V.callabour/ \V\V\v.gov. It is possible that a strike might not seriously harm the union because of strike pay. A government may also use legal action to achieve its objectives. because being in a union does not guarantee adequate rewards or safe working conditions. nl.Employment and Immigration British Columbia . and a strike notice is required in some jurisdict ions.gov. To reduce harm to the public. Employment and Labour Website http:/A\1\vw.ca/0105/ inclex. providing assistance during negotiation in the form of conciliation and mediation. For example.gov . while strikes and lockouts are viewed as both processes and outputs of the system. hrle. 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.employment.sk.ca/sss/i ndex. minimum wages. Some unionized employees may still need protection regarding the terms and conditions of the ir work.I abou r.gov. and it is reconunended that you review the site for your jurisdiction. a strike could harm the public interest by deterring investment or eliminating an important service such as public transit. php 3 \1/\1/\V. a collective agreement cannot provide less time off. Recently. T here may also be concerns about the equitable distribution of job opportunities and rewards. such as NAFTA. 2 As part of a bailout of General Nlotors. There has been a long-standing debate about whether minimum wage laws protect employees or cause unemployment. the New Brunswick government announced a cut in Crown timber rates to aid the lumber industry. For example. In the course of the administration of the agreement. In 2006. Aid for a particular industry could also come in the form of public relations efforts. vacations and leave. Employment standards legislation will affect the negotiation and administration of collective agreements referred to in later chapters.Chapter 5 Governments. because there are some who think that there is no need for government intervention. Governments may wish to control inflation and unemployment through monetary and fiscal policy. Figure 5-4 lists the employment standards legislation for each jurisdiction. the federal government and the government of Ontario have provided millions of dollars of assistance to the auto industry. It is possible that without regulation. or think that such an intervention does not work. They may also seek to establish a positive climate for investment through measures such as tax cuts and aid for industry. T his is a controversial area. and work hours. The federal government may pursue trade deals. and O ther Parties RE G ULATI ON O F THE ECO N OMY The regulation and improvement of the economy is a key government objective that will affect employers and unions. Concern about government debt levels could lead to reductions in government spending and employment. Labour Relat ions Boards. Alberta has engaged in efforts to convince Americans that beef from the province is safe. have been complied with. safety in the workplace would be diminished and undesirable practices such as discrimination could increase. Employment standards are continually amended and updated. Government methods in this area include employment standards legislation that sets out minimum terms of employment. ASS ISTA N CE TO IN D U STR Y All levels of government may engage in efforts to provide assistance to an industry. employment standards legislation in most jurisdictions has been amended to provide for compassionate care leave. The collective agreement must provide employees with at least the minimum provided in the legislation. The employer and the union will also have to ensure that changes in employment standards legislation. including wages. that will impact employers and unions. Some municipal governments have extended tax breaks to employers in financial difficulty. so reference should be made to the legislation and government ministry 97 . RE G ULATIN G MA RK ET PRACTI C ES A ND RE SULT S There are concerns about the practices and results in an unregulated market economy. If the relevant legislation provides for a minimum bereavement leave. which may provide new or additional protection to employees that is not provided in the agreement. If the agreement did not include leave for parents adopting children. employers and unions will have to ensure that employment terms that are not expressly referred to in the collective agreement at least meet the minimum provided in employment standards legislation. the Ontario and federal governments took a 12 percent ownership position in the company. the leave provided for in the legislation would have to be granted. This development allows employees to take unpaid time off to attend to seriously ill family members. Over the last decade. 3/ 2006061 4/l. Secondly.ca/en/1 p/spila/cl li/es lei 18notice_of_indi vidual_termination_oi_employment. Labour Relatio ns Boards. gc. ns. and Other Parries Employment Standards legislation jurisdiction Federal Statute Alberta Employment Standards Code British Columbia Employmem Standards Act Manitoba New Brunswick Employmem Standards Code Employmem Standards Act Newfoundland and Labrador Nova Scoti a Labour Standards Act Ontario Employmem Standards Act Prinee Edward Island Quebec Employment Standards Act Labour Standards Act. breaks Days of rest.gc.canli i.pdf for current information.ca/en/1p/spiIa/el li/es lei 21 Hours_Work_Overtime_Meal.gov. For example.org!en/nb/laws/stat/snb-1 982-c-€-7.org/en/ab/laws/stat/rsa-2000-c-e-9/ Iatest/rsa-2000-c-e-9 . hrsdc. pe.org/en/ca/laws/stat/rsc-1985-c-1-2/ latest/rsc-1985-c-1-2.html http://www. hrsdc .ca/en/1 p/spiIa/el li/es leiCompa ss.org/en/nl/laws/stat/rsnl-1 990-c-1-2/ latest/rsnl-1 990-c-l-2.ca/en/1p/spila/cl li/esleiCoiiTermEn . hrsdc .sk.gc.pdf http:/AV'vV'vV.canli i.ca/en/1 p/spiIa/el li/es lelt_days_of_ rest.gc.mb.hrsdc.canli i. there are problems with the enforcement of the legislation. For information relating to employment standards.V'vV'vv.Avid-d imt/mwa/index.gc.Avww. and http:/AV'vV'vV.html http://web2 . the vacations provided are minimal and the minimum wage could not be considered a living wage.qp.gov. html http:/AV'vvw.hrsdc. many of the standards are set at a low level.vhole. htm l http://www.V'vV'vv.hrsdc. gc.hrsdc.98 Chapter 5 FIGURE 5-4 Governments. overtime.pdf http:/AV'vV'vv.ca/eng/labour/labour_Iaw/esl/stat_ho Iiday.pdf http://I. ca/en/1p/spiIa/ell i/es lei table_m ini mum req uirements_vacations.canlii .pdf .org/en/bc/laws/stat/rsbc-1996-c-11 3/ latest/pa rt-1/ rsbc-1996-c-11 3-part-1.hrsdc.sl1tm I http :/AV'vV\v. Although some standards appear to provide a rea sonable level of protection and have been adopted by some employers as standard policy. Thirdly. html http :/.1r. refer to the websites listed in Figures 5-5 and 5-6.ca/en/1 p/spiIa/ell i/es lei 06Rate_of_Maternity_Parental_and_Adoptoin_Leave.AV'vV'vV.gc.3 FIGURE 5-5 Employment Standards Information: Human Resources and Skills Development Canada Employment Standard Minimum wage Hours of work. Sunday work Hol idays Vacations Maternity and parental leave Compass ionate care leave Notice oi termination.shtml http :/AV'vV'vV.pdf http:/.aspx lreport=report 1 http:/AV'vV'vV.org!qellaws/regu/ n-1 . serv ices. some categories of employees are exempted from some employment standards provisions.AV'vV\V. and many employers provide more than the legislation requires. One study in the 1980s found that 15 percent of employees in Ontario did not receive what was due to them.2.2/ latest/snb-1 982-c-€-7.html http:/AV'vV'vv. There are problems associated with employment smndards legislation.ca/legislatu re/legc/statutes/ Iabourst.V'vV'vV. First.htm http://I.gov.ca/laws/statutes/ccsm/e 11 Oe. other standards provide only minimal protection.shtml http:/AV'vV\v.canl ii. Chapter IV Saskatchewan The Labour Standards Act Canada Labour Code Pa rt Ill Labour Standards Code http://www.gc.call aw/statu tes/pdf/e-06_2.canli i.org/en/on/ laws/stat/so-2000-c-41 / latest/so-2000-c-41 .html http://www.gc. pdf http://I.ca.ca/documents!Engl ish/Statutes/ Statutes/L 1. ca/en/1 p/spiIa/elli/eslelhours(e).gc.php http:/.group of employees HRSOC Website http://srv 11 6.gov.canli i.individual employees Notice oi termination.shtml. hrsdc . employment.V\V\v.hrl e.ca/esb/ http://I. T he U. G OV ERNMENT EM PLOYER S: OBJE CTI V ES Federal.a lberta.V\V\V. such as daycare.html http:/AV'>V\v. in Saskatchewan govenunent employees are regulated by the same Trade Union Act./ http://I.call ra/labourstandards/default. Employment equity legislation in some jurisdictions attempts to ensure that four designated groups.S. which may be e. and government business enterprises.4 percent of working Canadians. Although public sector employees in some jurisdictions are regulated by the legislation governing the private sector. government's handling of an illegal air traffic controllers' strike in the early 1980s by replacing the workers illustrates this point.ca/SFW/122 4. Health and safety legislation provides protection against accidents and industrial diseases. This legislation sets out minimum terms for the workplace.ns. such as a health and safety conunittee. sk . and this too may influence private sector labour relations.htm Human rights legislation protects employees from discrimination and harassment.php31number= 1002354&1ang=E http:IAV\V\V. some governments enact special public sector labour relations legislation. Striking employees were shown in the media being arrested and taken away in handcuffs. If governments take a leading role by providing innovative terms of employment.V\V\V.gov. nl.pe.htm http:/AV\V\v.html http://I.:xceeded in a collective agreement.asp http://I. social services. Special provisions regarding labour relations in the public sector are described in Chapter 11.ca!sss/i ndex. and O ther Pa rties fiGURE 5-6 Employment Standards Information Canada Alberta British Columbia Manitoba New Brunswick Newfoundland and Labrador Nova Scoti a Ontari o Prince Edward Island Saskatchewan http://www.on. Another 15 percent of the workforce work indirectly for governments in health.V\V\v.ca/standard./i ndex.gc.hrsdc.ca/0308/index-e.V'>vw.gov.gov.ca/engllabour/employ men t_standa rds/ index.gov. which covers government 99 .bc. because they adopted a tougher stance with unions in the 1980s and 1990s.shtml http://I. usually provided for in employment standards legislation.labour. provincial. Perhaps this sent a signal to private sector employers in the United States that they could get tough with unions.ca/labour/standards/index. On the ot her hand. governments have recently taken a harder Line with unions representing public sector employees. Unions may have a role in the preparation of required plans and the enforcement of this legislation. For example.gov.gnb. AU jurisdictions have equal pay for equal work legislation.labour.gov. and local governments directly employ 9.mb.gov. visible minorities. individuals with disabilities. and aboriginal people. Government employers will have the objectives of efficiency and control referred to in the previous chapter. La bour Relat ions Boards. whereas in Ontario there is a Crown Employees Collective Bargaining Act.Chapter 5 Governments.Iabour. Unions have a role in the administration and enforcement of such legislation. which regulates the private sector.ca/lwd/employmentrights/ http :/AV'>V\v. The manner in which governments deal with their own employees and unions may have an effect on employers in the private sector. private sector employers and unions will likely negotiate the same issues.are adequately represented in the workplace. Some jurisdictions have gone further and enacted pay equity or equal pay for work of equal value legislation.ca/engl ish/e.women. A separate fourth category for other parries was established to emphasize that they are independent of the three main actors. Employers strongly opposed the proposed legislation. and a neutral chair or vice-chair. and establishes a Labour Relations Board. Websites for Labour Relations Boards are provided in Figure 5-7 . Eventually the government dropped the proposed change to the legislation. Labour Relations Boards are important actors in this last category. and the employee's right to strike. which campaigned against the proposal. Finally. Let us briefly consider the composition. For example. employers. It has also been alleged that some contract negoti<Hions between governments and public sector employees just prior to an election have been influenced by the government's desire to win votes. Although in some jurisdictions there is a provision for hearings to be conducted by a neutral chair or vice-chairperson. responsibilities. For example. which affects the supply of labour available to employers. in 2004 the Saskatchewan government announced it was going to change the province's employment standards legislation to require employers with more than 50 workers to allocate additional hours to parr-rime employees on the basis of their length of service. some hearings are conducted by a three-person panel including one labour representative. and Other Parties employees.100 Chapter 5 Governments. governments provide education. the Saskatchewan Business Council. MAINTAINING OFFICE Cynics may claim that all of the objectives previously referred to really come down to the objective of a government maintaining office. and public relations. Some employers and the chambers of commerce in several cities formed an association. T he public sector legislation regulates who can unionize. and governments. which is responsible for the administration of the legislation. It should be noted that while the government appoints Board members and the Board must apply the relevant legislation. employees. one employer representative. A government's desire to maintain office may make it susceptible to political and public relations activities of unions and employers referred to in previous chapters. the Board is independent from government. . Governments have made extensive use of back-to-work legislation. They consist of a neutral chair and vice-chairs. T he framework for labour relations provided in Chapter 1 indicated that in addition to the three main actors. grievances and arbitration. and unions. L1bour relations legislation in each jurisdiction provides for rights and obligations of employers. it must be noted that government plays other roles and engages in other activities not referred to here that affect employers and unions. COMPOSITION OF LABOUR RELATION S B OA RDS Most Labour Relations Boards in Canada are tripartite representational bodies. lockouts in some cases.unions. and authority of the Boards. and representatives from employers and unions. Labour Relations Boards. and it is recommended that you visit the one for the Board in your jurisdiction. including contract negotiation. Governments also have available to them the same methods as private sector employers. LABOUR RELATIONS BOARDS A labour Rel a tio ns Board is an independe nt body responsi ble for the administra tion of labour relations legislation. Many of these sites have useful information. the issues that can be bargained.there are other parties involved. ol rb . Hearing unfair labour practice complaints by unio ns.a b.gov. They have the authority to grant bargaining rights to unions and to terminate those rights. Hearing complaints and issuing declarations regarding unlawful strikes. The jurisdiction of Labour Relations Boards has been increasing in recent years.ca http://a Irb. This topic is cliscussed in Chapter 11.asp http:/Avww.h rle. and Other Pa rties FIGURE 5-7 Labour Relations Boards Board Canada Ind ustrial Re lations Board A lberta Labour Re lations Board British Columbia Labour Relatio ns Board Manitoba Labour Board New Brunswick Post-Secondary Edu catio n and Training Newfoundland and Labrador Labour Relations Board Nova Scoti a Labour Relations Board O ntario Labour Relations Board Prince Edward Island Labour Relations Board Saskatchewan Labour Relations Board Website w'vvw.ca/cca/ index.n l. it will briefly be noted that the Boards play a central role in the labour relations system. Process ing uni on appli catio ns to represent employees 2. At this point. lockouts.gov.on. employers.cirb-<:cri . Some have a broader jurisdiction than others. and employees 4.Chapter 5 Governments.html http:/Avww. 101 .bc. lrb.sasklabourrelatio nsboard .ca/ www.gnb. Resolv ing disputes ari sing under a col lective agreement in some jurisdictions 6.ca/labour/labbrd/index. the British Columbia Board has responsibility in areas that other Boards do not.ca/lwcl/1rb/ http:/Avww. htm http:/Avww.php31number= 1006679&1ang=E www. for example.gov.pe. In some jurisdictions. Considerations 5-1 Labour Relations Board Responsibilities 1. and picketing 5. a complaint is filed with the appropriate Board. ns.ca/engl ish/ho mepage.gc.gov. there is special legislation and a separate Board that deals with the public sector.ca/011 0/index-e. Dealing w ith arbitration of first and subseq uent contract disputes in some juri sd ictions The roles and responsibilities of the Boards will be developed in subsequent chapters as the need arises. including the mecliation of disputes through a mediation division. When it is alleged that an employer or a union has violated labour relations legislation.com BOARD RESPONSIBILITIES The Labour Relations Boards have responsibility for the matters listed in Key Considerations 5-l. mb. La bour Relations Boards.gov. Process ing applications to terminate unio n bargaining rights 3.ca/ www.ca/1rb/ http:/Avww.gov. An application can be made either for the Board to reconsider or for judicial review of the decision. The point emphasized here is that arbitrators are independent from government. Very often a hearing is avoided. One of the reasons Canadian labour relations legislation is viewed as being more strictly enforced than the U. Implications for Practice 1. referred to in Chapter 2. Government plays a key role in labour relations as a regulator. An examination of Board annual reports shows that although the Boards make thousands of decisions each year. Referring disputes under labour relations legislation to a Board instead of the court system has several advantages. and this entails additional expense and delay. including ordering the reinstatement of employees and the payment of damages. Although Board decisions cannot be appealed. legislation is the reliance on Labour Relations Boards. In Chapter 10.'\rbitrators hear evidence presented by the parties and render decisions that are binding upon them. facilitaror. we will see that in parts of the public sector arbitrators settle the terms of the collective agreement when the parties are not able to negotiate a contract. When a union and an employer have a dispute about the mea ning or application of a collective agreement. a settlement officer attempts to resolve disputes so that a formal hearing is not required. OTHER PARTIES T he framework for labour relations in Chapter 1 referred to other parties such as arbitrators. Employers and unions need to monitor proposed changes in government policy and should become involved in activities to attempt to influence govenunent policy. T he termination of an employee is an important issue that we will see referred to arbitration in Chapter 9. illustrates the role of the courts. . and protector of the public interest. .102 Chapter 5 Governments. In the United States. it is possible to have an arbitrator's decision reviewed in the courts. Although it is seldom done. two courses of action are open to a party not satisfied with a decision. Arbitrators will be discussed as necessary in subsequent chapters. COURTS T he courts play a role in labour relations. Individuals with expertise in labour relations make the decisions. The Meiorin case. and they are made faster.S. We previously referred to the courts and human rights tribunals in Chapter 2. it is referred to arbitration. which established the requirements for a bona fide occupational requirement. some disputes are referred to the court system. and Other Parries PROCEDURE AND REMEDIES On an application to a Board. Labour Relations Boards. very few decisions undergo judicial review. with less expense. The Boards have extensive remedial powers. Arbitrators play an important role in the labour relations system. ARBITRATORS Arbitrators hear disputes between unions and employers and render final and binding decisions. from whom it was requesting approxi mately $100 mill ion. arbitrators. 100 Review Questions 1. Where necessary. It included a freeze on the cost-of-living allowance. lower pay for new employees. and reductions in benefits. based in Il lino is. p. The o riginal shutdown date of July 2003 passed as talks with the governments continued. Key Terms Arbitrator. and human rights tribunals. and by 2002 Navista r employed just 7 50 people a nd had over 1000 e mployees o n layoff. Why does government become involved in labour relations? 2 . Find out what information is provided regarding the Board's composition and processes. and practices. Ontario. Why are L1bour R elations Boards key actors in the labour relations system? Discussion Questions 1. 102 L1bour Relations Board. One of the pickets was severely injured when a vehicle struck him. . However. Nav istar demanded major concess ions. 3 . What methods do governments use to regulate and influence the labour rela tions system? 3 . Labour Relations Boards also play a vital role. The Ca nad ian Auto Workers union represents the employees at the p lant. An agreeme nt was reached that did not incl ude concessions. However. operates a heavy-truck assembly plant in Chatham.Chapter 5 Governments. U nions and employers should be familiar with Board rules. Nav istar and the CAW reached an agreement that provided the company with $44 million in savings annually. the union brought in additional pickets from other CAW workplaces. the parties atte mpted to negotiate a contract renewal. and Other Pa rties 103 2. But the heavy-truck industry in Nonh America suffered a downtu rn. What is the composition of a labour relations board? 4. Navistar International Navistar International Corporation. H ow much protection does employment standards legislation provide to employees? Include in your answer an employment standard that appears to provide adequate protection and refer to a standard that appears to provide only minimal protection. To prevent the entry of these workers. In 1998. and there was a bitter six-week strike during which the company attempted to bring in replacement workers. in early 2003 the company a nnounced that it would be closing down the operation and moving to Mexico. p. Other parties in the labour relations system include the courts. La bour Relations Boards. The closure was put off while the company engaged in ta lks with the federal and provincial governments and the CAW. Web Research Visit the website of the L1bour R elations Board in your province or the Canada Industrial Relations Board. reduced vacation times and bonuses. employers and unions should consult lawyers or consultants. In May 2003. the ag reement was conditio na l upon the company obta ining financial assistance from the federal and provincial governments. In 2002. the plant employed over 2000 workers and was running two shi fts producing 120 vehi cles per day. policies. Labour Relations Boards. and Other Parties In September 2003. it was announced that the federal and provincial governments were contributing up to $65 million. Questions 1. Explain this situat ion in terms of the framework provided in Chapter 1. the company would be investing $270 million. The p lan called for Industry Canada and Human Resources Development Canada to contribute up to $33 million for training programs and resea rch and development in various proj ects incl uding moderni zation of the plant to contro l emissions. and the pl ant would co nti nue operations. W hat does this situation suggest about traditional adversarial uni on-management relations? .104 Chapter 5 Governments. 3. The Ontario government would contribute up to $3 2 million from a Large Scale Strategic Investment Initiative program . The company would invest $270 million in technology and advanced skills training. Which roles of government referred to in this chapter are illustrated here? 2. 30. 102 . 102. and no vote need be held. 62 percent of the Canadian labor force was covered by mandatory votes. By 2001. 102 6. Outline the process to deal with unfair labour practices at certification and the remedies available 3. 29. it is possible for the union to obtain recognition on the basis of signed membership cards. . Explain limits on employer and union conduct during the organizing process 3.Suzan Johnson 1. Outline the effect of a sale of a business on the union's bargaining rights 29. .102 9. Outline how a union could obtain bargaining rights 29. . Describe the significance of a union obtaining bargaining rights 96. 109 8. Prior to 1976. Outline the steps in a union organizing campaign and application for certification 3. 104. A mandatory vote requires that the union win a majority in a secret vote of the proposed bargaining unit.29. 109 3. 102.Mandatory votes and card checks are alternative procedures used to determine union recognition. 1 . 102 4. Explain the grounds and procedure to terminate a union's bargaining rights 2. 109 7. 29. a number of provinces have adopted mandatory votes. want to join a union 100. 29. 101. or may not. Outline the factors determining and the significance of the bargaining unit 29. 99. every Canadian jttrisdiction used card checks. 109 2. Since that time. 102. Under a card check. 98. Explain reasons why employees may. 102. 109 5 . The Board found that the threats made against the union organizer were a contravention of the legislation. and "if you keep coming to my [expletive deleted ] shop and I find out what you drive. Then we will consider the ways that a union can obtain the right to represent employees. including a union organizing campaign. and is able to allay employee concerns about w1ionization. Sean Peters. one of the owners of the company sa id that he would punch any union organize r who vis ited his home a nd he would give $100 to anyone who punched a union organizer. The union filed an application for certification with the Labour Relations Board on October 20. The owners also stated that if the company was unionized there was the possibility of a reduction in hours for employees. A heari ng before the Board was subsequently held. the employer called a meeting of employees to discuss the union . . a violation of the legislation.. Labour relations legislation regulates the conduct of employers and unions during the organizing and certification process. and a decision was rendered in July 2007. contacted employees at their homes and the workplace to get them to sign union membership cards. If the union addresses issues of greater interest to employees. Voakes said ".. The union organizer working for the union. The Board ordered the following to remedy the situation: (1) the certi fication of the union without counting the ballots cast. employer and union conduct during an organizing effort. I got about [expletive deleted] 30 guys that want to [expletive deleted] you up. At the meeting." Voakes also said "The union will never happen. ·rhe names of the company and individuals involved have been changed. and the destruction of the ballots taken in the representation vote. I' ll [expletive deleted] gladly take one. called Peters who tape-recorded the conversation. a nd (2) the posting of a notice to employees by the employer setting out their rights under labour relations legislation. unfair labour practice complaints. one of the owners of Southwest.. The company employs 30 labourers servicing builders in the residential construction industry. elaborating on the certification process. I might be charged with assault but you know what. This incident illustrates several of the key issues that w iU be elaborated upon in this chapter. The union also filed a complaint with the Board alleging the employer had violated labour relations legislation by interfering in the selection of a union and intim idating employees so that they would not join the union. The rules regarding unfair labour practices and remedies will be reviewed . John Voakes. At the meeting. he would [expletive deleted] Peter's up''.106 Chapter 6 Collective Bargaining Rights Southwest Concrete Forming• is located in a mediumsized Canadian city. The owners indicated that if the company unionized it would probably suffer some losses because it worked for a lot of non-un ion contractors. one employee approached the owner to pursue the possibility of striking a union organizer. the employees were told that if the company was unionized they might have to drive their own cars to jobsites rather than use the company's vehicles. 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.. 2006. The Board ordered that a representation vote be held a nd the ballots be sealed until the Board held a hearing on the unfair labour practice complaints. it is more likely to be successful in an organizing campaign. The certification of a un ion without a vote or despite the results of the vote is a remedy that is available in only some Canadian jurisdictions. Although the owner involved later claimed that he was joking. The Labourers International Union started an organizing campaign to un ionize the company's employees in September 2006. The Board also found tha t the meeting with employees constituted what is known as a "captive audie nce meeting" a nd there were threats made aga inst the employee's job security. and "." In October. and remedies that are avail able from a L1bour Relations Board. We will first consider why employees may or may not want a union to represent them. so if they want to [expletive deleted] be unionized go across the street. Finally we will consider how a union can lose the right to represent employees and what happens if the employer sells the business. THE UNIO N IZATION DE C I SION The reasons why employees join unions and maintain union membership are important to both unions and employers. external factors are beyond the employer's control. Fa irness. At this point. T he details of the effects of unions on wages and benefits are reviewed in Chapter 12. federally. Many employees join a union to obtain improved wages and benefits. it is sufficient to note that some employees may perceive that unionization is a method to improve compensation. as long as reasonable notice is given. they have on average earned 10 to 25 percent more than non-union employees. WHY EMPLOYEES UN IONIZE An individual's decision to join a union is affected by factors internal and external to the workplace. where employment standards legislation protects qualifying non-managerial employees from unjust dismissal. or management retaliation. the study found that a significant bloc of employees were concerned about possible conflict in the workplace. These areas of potential dissatisfaction and improvement are considered next. . layoff. and believe that a union may provide increased job security. There is an exception in three jurisdictions. Compensation. Nova Scotia and Quebec. If employees are not unionized.tvlany union supporters have assumed that it was fear of strikes. the 107 . the union's campaign. dissatisfaction with pay or other working conditions by itself will not be enough to lead to unionization. or teclmological change threatens their job. One group of studies is based upon the premise that employee dissatisfaction leads to a consideration of whether a union would improve the employee's situation. Other studies indicate employee dissatisfaction is not a requirement for employees to unionize. job loss.Security. Some employees may be concerned that termination. in most jurisdictions when non -union employees have been dismissed. According to this approach. some employees may be concerned with their relative compensation when they compare themselves to other employees or managers. Reinstatement is a possible remedy in t hose jurisdictions if the employee files a complaint and it is found that there was an unjust dismissal. employees also have to perceive that a union will be able to help them improve things. Employers may have some ability to affect internal factors such as compensation. outsourcing. they may think that unionization is a way to achieve fairness. Workplace Factors Affecting Unionization T here are numerous studies examining why employees decide to join unions. A non-union employee could be dismissed for a frivolous reason. the employer can terminate employees even though there is no employee misconduct. If a non -union employee is not provided with sufficient notice. In addition to the amount of their compensation. Equity. but not reinstatement.the employee will not be reinstated. and the only remedy available is compensation for the reasonable notice period. However. Employers may be concerned with the motivation for unionization so that they may develop policies and practices that make joining a union less attractive or necessary. 3 Employees may choose a union as a rational decision to improve their situation even if there is no dissatisfaction. H owever. If employees perceive that there is an inequity. Job . 2 For those employees. Although the compensation advantage for unionized employees has diminished in recent years. was misdirected. aimed at countering the assumed fears relating ro job security. they can sue and the courts will award damages. however.C hapter 6 Collective Bargaining Rights One study in the United States suggests that unions have misunderstood the rea sons for employees failing to support the union . employees who have more time on the job have more job security. although seniority is not the only consideration governing layoffs. in a unionized workplace the collective agreement will provide that employees can only be terminated if there is just cause. may lead them to believe that a union will help them resolve this issue. the employer may lay off whomever it wishes. it appears that non-union employees may not be willing to exercise this right. A study reviewing work refusals in Ontario found that over 90 percent of work refusals occurred in unionized workplaces. T here are numerous working conditions that employees may perceive would be improved if a union represented them. there is no legal requirement that they do so. Employees may perceive that joining or maintaining their membership in a union will help them counter attempts by employers to increase their workload. Contracting out refers to the employer arranging for work to be done by the employees of another firm or independent contractors. Teachers may want a voice in decisions made by school boards affecting students. \Vorking Conditio ns . and teachers may have encountered larger class sizes. 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. In the event of a loss of business. or because of concerns with health and safety." Many employees have likely encountered increased workloads including assembly line speedups and increased workloads after a downsizing. In the public sector. Their experience with their manager. however. Employees may pursue unionization to obtain greater notice for scheduled hours. Approximately 50 percent of unionized employees who are terminated are reinstated through this process.108 Chapter 6 Collective Bargaining Rights only remedy available is damages to compensate them for inadequate notice of ter mi nation. The grievance and arbitration process relating to the termination of employees is considered in Chapter 9. T he requirement for just cause to terminate a unionized employee and the possibility of reinstatement provides unionized employees with additional job security. health care workers have been required to look after more patients. organizations may be forced to lay off employees. For example. In a tmionized workplace. Economic pressures have forced employers in both the public and private sectors to try to "do more with less. Some employees may pursue or maintain unionization for the purpose of establishing a collective voice. and an arbitrator might eventually hear the matter and order reinstatement. we will see later in Chapter 7 that collective agreements may contain terms that provide some protection against job loss.4 T his may suggest that the legislation is not protecting non union employees and that employees may perceive they need to pursue unionization to deal with health and safety concerns. who may not have been adequately trained. . Although some non -union employers apply seniority rules. which the employer is more likely to listen to. so that those with the longest service record are last to be laid off. Some employees may want input into policy decisions made by their employer. Inadequate N1anagers. On the other hand. Although unions cannot guarantee that technological change or contracting out will not affect employees. \Vorkload. Voice in Po licyma king. to obtain a fairer distribution of shifts. Health and safety legislation provides that employees have the right to refuse unsafe work. Some employees may perceive that they are being harassed or intimidated by their manager. Without a union. A termination may be the subject of a grievance. Individually employees may find that their concerns are not addressed. Technological changes and contracting out (outsourcing) also pose a threat to employees' job security. However. the authors concluded. which reduce employees' desire to unionize.Chapter 6 Collective Bargaining Rights Complaint N1echanisrn. the authors found an increased willingness to join a union in Edmonton during a period of economic downturn. Toyota. Some employers have adopted union substitution and avoidance strategies referred to in Chapter 4. Some employees have attitudes shaped by external factors that make them more or less li kely to support unionization. employees may perceive that a union may help them protect their real incomes. Attitudes towards Unions. . the employer may be able to reduce the likelihood of employees seeking unionization. By establishing practices such as complaint mechanisms and providing compensation equivalent to unionized employers. higher unemployment rates might prompt concerns regarding job security. one critical incident. Non-union employees may hear about unionized employees grieving and winning disputes with employers. Employees may perceive that the grievance and arbitration process found in collective agreements will provide them with a means to challenge some management decisions. which is not unionized. there is no legal requirement that they do so. In Chapter 9. Individuals who have been raised in households where parents have experience with unions and have positive attitudes toward unions are more likely to support unionization. After considering possible factors that could explain this trend. One study that asked residents of Edmonton and Winnipeg in 1981 and 1987 about their willingness to join a union found that in both cities the attitudes of respondents towards unions had become more positive. In a recession. accident. Employer Policies.5 In Chapter 2. In any particular setting. In the non-union workplace." ' The decision to join a union or to maintain membership is complex and involves more than financial issues. there might be reasons other than those mentioned here. it was indicated that a significant number of Canadians do not have positive attitudes towards unions. such as a dismissal. . 6 Economic Factors. The influence of family. In the study examining the attitudes of Edmonton and Winnipeg residents referred to above. there is no way to challenge legal management directives. "the evidence points back to a changing economic elimate as the key causal agent. UlllOJllZatlOn. causing employees to seek unionization. the news media. or wage freeze. and they may be attracted to unionization because they desire a complaint resolution process too. During periods of inflation. External factors may affect an individual employee's decision regarding . In some cases. public opinion varies with the political and economic situation over time. External Factors Affecting Unionization Chapter 2 referred to environmental factors such as the economy affecting overall union density. we will see that unions have sometimes been able to challenge management directives such as the installation of video cameras. Although some non-union employers establish complaint mechanisms for employees to resolve workplace issues. may be the catalyst. increased wages and paid each employee $1000 in response to a contract negotiated between CA\Y/ and an auto manufacturer ~ 109 . Employers who wish to avoid unionization should ensure that their compensation system is competitive and fairly structured. Some have established a policy of matching the wages paid by similar unionized firms . Employees may observe cost-of-living provisions that unions have been able to negotiate in some collective agreements during periods of inflation. dealing with the administration of the collective agreement. and others can affect an individual's decision to vote for or against a union. and not all union members have chosen union membership voluntarily. and they do not think that they would be comfortable in that type of setting. they will succeed. and they perceive that if they support a union they may be harming their careers. Union Dues Some employees may object to joining a union because they do not want to pay union dues. have opposed legislation that would abolish the federal government gun registry. there must be reasons why employees do not unionize. Flexibility Many employees perceive that a collective agreement involves an inflex ible set of rules and terms of work including set hours. Conflict Many employees prefer to work in a cooperative setting. Employers have also established complaint mechanisms or grievance procedures ro avoid employees perceiving that they need a union. including the CAW. Belief Tha t Unions Protect Lazy a nd Incompetent Employees A discussion of the advantages and disadvantages of unions in the classroom or elsewhere often leads to someone claiming that unions protect lazy and incompetent employees. and the application of seniority rules in a unionized workplace. Strikes Some employees may associate unions with strikes. Loyalty to the Employer Some employees may feel an obligation to the employer and view joining a union as being disloyal. It is apparent that some employees think that this is the case and accordingly oppose unionization. and vacations.•'\lthough a strike is actually an exceptional event because most collective agreements are negotiated without a strike. start times. which most collective agreements provide for. They ma y . WHY EMPLOYEES Do NOT jOIN A UNION In view of the fact that only 29. Many unions have supported the NDP and the pro-choice side of the abortion debate.110 Cha pter 6 Collective Bargaining Rights that included a wage increase and a signing bonus of $1000 . Similarly. T he following outlines some of the possible reasons why employees may not pursue unionization.5 percent of employees are union members. They may have observed or heard of the adversaria l nature of some unionized workplaces. They may fear that a uniform compensation system. Some individuals may not be willing to support or be associated with these political and social movements. Political and Social Activities of Unions Unions have supported political parties and social causes that some employees do not agree wi th. Some unions. employees may fear the economic hardship that they have seen a few long strikes cause. Merit Some employees may perceive that if compensation and promotion decisions are made on the basis of merit. will not be to their advantage. some employees may wish to move into management. T hey ma y think that they will not receive service from the tmion that is worth the dues they will have ro pay. Labour relations legislation provides a certification process whereby a union may obtain the right to represent a group of employees by applying to the Labour Relations Board. there was a bitter strike at the Navistar truck assembly plant in Chatham. seemingly because the union drove up wages. even though the employer claimed the closure was for economic reasons. refers not only to the process through which a union applies to the Board but also to the end result of the process. A voluntary re cognition agreement is an agreement between a union and an employer providing that the employer recognizes the union as the bargaining agent for emp loyees. have lower levels of unionization because of employer opposition. Job Loss In recent years. Employer Re ta lia tion Some employees may wish to pursue unionization. but they fear that their employer may retaliate. Some industries. or other factors. Employees do not have to consent to the recognition. Most unions gain bargaining rights by certification. for example. the employer cannot be forced to recognize the union. As the name suggests. Once a union has been certified. A new coUective agreement was eventuaUy signed. 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. Lack of Opportunity to Unionize Some employees do not have an opportunity to pursue unionization even though they would like to do so. in 2003 the employer announced it was moving to Mexico and over 1000 jobs may have been lost. there may be reference to the fact that there has been "certification" of a union. employees may have seen situations where after unionization or a strike the employer moved to the United States or Mexico. and there is a procedure available to employees to terminate the union's bargaining rights if they object to the recognition. the lower rate establishes a barrier to the development of unions because unionization is not a norm for employees in the industry. The term certification. it has the right to represent employees until the Board terminates that right. the Board issues a certificate that affirms the union as the exclusive bargaining agent for t he employees holding the jobs specified in the certificate. legal rules. The plant was only saved by a subsequent agreement with the union that provided concessions to the employer and assistance from the federal and provincial governments. howevet. The certification process is a way for a union to obtain bargaining rights for emp loyees by applying to the Labour Relations Board. which is considered in the discussion of decertification below. A union can obtain bargaining rights in two ways: by being voluntarily recognized by the employer or by applying to the Labour Relations Board and obtaining a certificate providing that the union is the bargaining agent for employees. such as a McDonald's in Quebec. A recent situation iUustrates how this type of concern might develop. In 2002. Whatever the rea son. . 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.Chapter 6 Collective Bargaining Rights 111 think that without a union they may be more likely to establish individual variations that they desire in their work arrangements. Omario. It is possible that some employees will connect unionization to the loss of jobs. as outlined later in this chapter. Voluntary recognition agreements are not conunon. Employees may have observed that some employers. ceased operating after a union was established. If the union is successful. such as banking. Employers and unions should be familiar with the legislation that governs them. there is a duty to bargain in good faith.112 Chapter 6 Collective Bargaining Rights When a union is certified. If union has support requi red I Board rejects application Board certifies union . If application timely 3. the conduct of the parties. Union status 2. T he union will assign a union organizer to the campaign. 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. there are some differences between jurisdictions that will be referred to in this chapter. Figure 5-2 in the previous chapter listed the private sector labour relations statutes for each jurisdiction in Canada. who are no longer able to enter into individual contracts of employment with the employer. The union becomes the exclusive bargaining agent for the employees. . Union organizers are union staff who direct an organizing campaign. Although the basic principles relating to the establishment and termination of bargaining rights are the same across jurisdictions.'\n organizing campaign refers to the union's attempt to convince employees that they should become union members. Figure 6-1 provides an overview of the certification process. T he duty to bargain in good faith and the negotiation of a collective agreement will be considered in Chapter 8. The employer could not make an agreement with the employee that he or she can take a longer vacation in exchange for working extra hours. L1bour relations legislation in each jurisdiction governs the certification process. Some unions attempt to use union organizers for the campaign who speak the language of the workplace and have similar FIGURE 6-1 Certification Process Union conducts o rganizing campaign Union files appl ication for certifi cation with labour relations board Board determines: 1. there are significant consequences for the employees and the employer. and how bargaining rights can be lost. ORGANIZING CAMPAIGN An organi zing campaign consists of union activities to convince employees to become uni on members.to honestly attempt to reach a collective agreement. a person on the staff of the union who attempts to sign enough employees as members for an application for certification. Appropriate bargaining unit 4. Often a campaign will start after employees contact the union and request its assistance. When a union has been certified. the success rate of organizing drives is increased. depending on the jurisdiction. The union files an application for certification for a unit of employees that it con- siders appropriate for collective bargaining with the Labour Relations Board. the membership evidence must have been signed within a prescribed time prior to being submitted to the Board in the application for certification. newspaper advertisements. The union may attempt to generate support by giving employees articles of clothing.British Columbia. 1. T he use of an organizing committee increases the chances of success in an organizing campaign. T he websites for the Boards were provided in Figure 5-7 . Some of the Boards provide guides or other useful information regarding certification.no fee or payment of dues is required. When the union applies to the Board. . (3) the group of employees specified in the application is an appropriate bargaining unit.Chapter 6 Collective Bargaining Rights work experiences and background. hats. 8 Some campaigns are conducted openly. In five jurisdictions. Unions are using websites to provide information to employees and convince them to become members.4. and it is recommended that you check the Board in your jurisdiction for information. In most jurisdictions. and Saskatchewan. Organizers or organizing committee members may visit employees at their homes. Additional details are provided in the following subsections. T he union trains workers who take time off from their jobs to work as union organizers. in other jurisdictions. it will make an application for certification to the Labour Relations Board. T he union attempts to get as many employees as possible in the proposed bargaining unit to sign cards. The organizing campaign might involve distribution of leaflets to employees outlining the advantages of unionization. it will have ro establish that: (1) it is a trade union as defined in labour relations legislation. which is referred to below. Employees may have to make a small payment to become a member. T he union may advise the employer about the upcoming organizing campaign and the right of employees to join a union without interference from the employer. the union may attempt to keep the campaign secret for as long as possible to avoid a response by the employer. Organizing committees are more effective when they include workers from the different departments in the workplace and represent the gender/raciaVethnic groupings in the workplace. there is a nominal membership fee ranging from one to five dollars. 113 A n o r ganizing committe"' is a group of employees who work on the campaign to sign up union members. and information meetings held away from the workplace. T his period ranges from 90 days to 12 months. In other cases. and provincial variations are covered in AppendL"X 6. Unions have moved away from relying exclusively on full-time staff organizers towards using some organizers who are workers from another workplace on a temporary assigmnent. An organizing committee will likely be established~a group of employees who support the union and work with the organizer. Newfoundland and Labrador. and (4) the union has adequate support of employees in the proposed unit. An overview of the certification process is provided here. APPLICATION FOR C ERTIFI CATION TO LAB OU R RELATIONS BOARD If the union signs up a sufficient percentage of employees as members. 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. Members of the organizing committee will speak to employees and try to get them t o sign membership cards. or buttons to wear. Members of the organizing committee attempt to have their co-workers sign on as union members. The membership evidence gathered in the organizing campaign is submitted with the application. Manitoba. (2) the application is timely. Ontario. All jurisdictions provide that an organization that discriminates on the basis of human rights cannot be certified. the appropriate bargaining unit. 6. In some cases. in further detail. the hearing is held after any vote. T he union contended that the worker was . there were no directions given regarding the work. Some examples may help. A union wiU not have to re-establish itself as a union every time it makes an application for certification. 5. a person must be an employee. and the determination of union support. the employer. Who Can a Union Represent? Employee Status and Exclusions Employee Status. There will be situations where the status of an individual doing work is not as certain. and the appropriateness of the bargaining unit proposed by the union. In most jurisdictions. 4. We will now consider the key issues in the application for certification. To be eligible for unionization. the timeliness of the application. 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. In some jurisdictions. T he individual charged a monthly fee.someone engaged in his or her own business. the employer could challenge the status of the applicant as a union.114 Chapter 6 Collective Bargaining Rights 2. The organization must not be domi nated by. employee status. T he employer is required or allowed to reply. If the applicant qualifies as a union. If there are any issues in dispute that cannot be settled. Someone who uses his or her 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. this may be difficult to determine. anyone could do the work. an organization must be a trade union. T he employer is notified about the application and the Board requires the employer to post a notice to employees. Once it has established its union status. in one case there was a dispute relating to an individual who was responsible for cleaning a library. 3. it will be deemed to be a union in subsequent applications unless it is proved otherwise. the board detennines if the applicant has sufficient support for certification on the basis of the membership cards filed or by holding a representation vote. The Board can add or remove positions from the unit proposed by the union. This is done by sealing the ballot box and segregating any disputed ballots in a manner that protects the identity of the voter. The employer is not advised of the names of employees who have supported the union. the Board determines an appropriate bargaining unit. and the application is timely. Who Can Apply for Certification: Trade Union Status Labour relations legislation provides that to apply for certification. For example.an organization that has as one of its purposes the regulation of relations between employees and employers. or influenced by. Depending upon the jurisdiction. In the reply. An independent contractor is someone engaged in his or he r own business. the reply must include the names of employees in the bargaining unit. or it does not have the regulation of relations between employees and employers as its purpose. timeliness of the application. a hearing will be held by the Board. not an independent contractor. Someone who works for a company and uses the company's equipment to remove the snow from its parking lot as one of his or her duties is an employee. and she was free to work for others. the status of the applicant. Ultimately the Labour Relations Board found that the individual was an independent contractor. some workers would be found to be independent contractors. where. In five jurisdictions (Canada. It has been recognized that if L1bour Relations Boards only applied the common law tests to determine if an individual was an employee. ownership of tools. and risk of loss. Ontario. One important test is the fourfold test. persons who own and drive their own taxis or delivery vehicles could be viewed as independem contractors. if he or she uses the tools and equipment of the person having the work done. if he or she is earning a specified rate of pay so that there is no opportunity to earn additional profit. an example from the British Columbia Labour Relations Code is as follows: (A] person. the more likely the worker is an employee. (2) the ownership of the tools and equipment used to complete the work. material or A dep enden t contractor is someone w ho ap1>ears to be an independent contractor. he or she is more likely an independent contractor. he or she is more likely an independent contractor. it is more likely he or she is an independent contractor and not an employee. he or she is more likely an employee. The more control the person having the work done exercises over the worker. 9 If an employer challenges the employee status of an individual. the provision of services to the market is an indicator that he or she is an independent contractor and not an employee • if the worker has the freedom to reject work opportunities and may complete the work when he or she wishes. when in fact they are just as dependent upon a particular organization as an employee would be. Any requirements relating to when. Newfoundland and L1bradot. For example. and Prince Edward Island). None of the four factors are conclusive or binding by itself. If the arrangement is structured so that it is possible that the individual might suffer a loss. If the worker uses his or her own tools and equipment to complete the work. it is more likely the worker is an independent contractor • if the worker has duties that are the same as other persons doing work who are employees. but is economically dependent on a single organi zation. the issue will be determined by the Labour Relations Board. whether or not employed by a contract of employment or furnishing his or her own tools. labour relations legislation provides for the concept of a dependent contractor. it is • if the work arrangement is structured so that the individual must personally complete the work. Labour Relations Boards have applied and expanded the factors in the fourfold test to include the following: • if the worker can use other individuals or substitutes more likely he or she is an independent contractor to 115 T he four fol d test determines if an individual is an employee by considering control. This would mean that these individuals would not have access to lmionization. The courts have developed tests to determine if an individual is an employee or an independent contractor that have been applied by labour relations boards. machinery. 10 The definition of a dependent contractor is similar across these jurisdictions. complete the work. (3 ) whether the worker has a chance to make a profit. and (4) whether the worker may suffer a loss. opportunity for profit. which involves consideration of: ( 1) the degree of control over the worker.Chapter 6 Collective Bargaining Rights an employee and the employer submitted that she was an independent contractor. he or she is more likely an employee. vehicles. equipment. British Columbia. it is more likely that he or she is an employee Dependent Contractors. If the worker has an opportunity to make a profit. and how the work must be done are indicators of control. . it is more likely he or she is an employee • if the person works for several persons or firms. he or she will be considered managerial. A job title that refers to someone as a manager does not decide the question. Similarly. An individual will be found to be a manager if he or she has a direct impact on the terms of employment of others. and there was no negotiation of the fees paid to the drivers. taxi drivers in that province who are dependent upon a single organization have been found to be employees. drivers worked longer hours so that they were more dependent upon the newspaper. Each case dealing with the issue of employee versus independent contractor status must be considered on its own merits. If someone has the authority to hire. although the Alberta legislation does not provide for dependent contractors. If it refers to duties including hiring and the discipline of employees. 11 The definition of " employee" in the legislation provides that individuals who are dependent contractors are employees. In the other two cases. terminate. T his should be viewed as a statutory extension of the definition of employee for the purposes of labour relations. Appendix 6. The application of the managerial exclusion varies between jurisdictions and in some jurisdictions more employees are classified as managers. the drivers were found to be dependent contractors and therefore could unionize.116 Chapter 6 Collective Bargaining Rights any other thing.1 Managerial Exclusions at the end of this chapter provides additional information relating to the managerial exclusion in each jurisdiction. In one of the cases. T he result is that some workers who would otherwise be found to be independent contractors fall within the defi nition of an employee. 12 Although the drivers in all three cases owned their own vehicles. Journal Le Droit. and under an obligation to perform duties for. N1anagerial Exclusion. the newspaper exercised some control over the use of substitute drivers. a Board will consider the job description to determine if it accurately reflects the authority an individual exercises. and they can join or form a union. Labour relations legislation prevents some employees from joining or forming a union. In the one case where the drivers were found to be dependent conrractors. Accordingly. 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. who performs work or services for another person for compensation or reward on such terms and conditions that he or she is in relation to that person in a position of economic dependence on. they should not be part of the union to avoid a conflict of interest. or determine the compensation of other employees. discipline. or occupation. This is illustrated by considering three cases involving applications for certification by unions seeking to represent drivers delivering newspapers to retail outlets. For example. that person more closely resembling the relationship of an employee than that of an independent contractor. Even in jurisdictions without a dependent contractor provision in the legislation. T he legislation may exclude employees from unionization because of their level of responsibility. someone economically dependent upon a single organization might be found to be an employee. he or she will not be found to be a manager. T he legislation does not define "manager" or " managerial functions. there were other differences among the cases that led to different results. All jurisdictions provide that managerial employees are excluded from unionization in order to avoid a conflict of interest. but in reality the individual does not become involved in these tasks. the drivers were found to be independent contractors and the applications were dismissed." When a Labour Relations Board determines whether someone is a manager the person's real job or actual duties are examined. job duties. The person will also be viewed as a manager if he or she makes effective recommendations regarding the terms of employment of . where we consider public sector employees. Employees Engaged in a Confidential Capacity Regarding La bour Relations. In some cases. For example. T his exclusion is aimed at avoiding a conflict of interest. firefighters. individuals are excluded from unionization on the basis of their occupation. In some jurisdictions. Any potential conflict between supervisory and non-supervisory employees can be alleviated by putting the supervisory employees in a separate bargaining unit. Occupational Exclusions. TI1ey must actually be involved in the use of the information for the exclusion to apply. Appendi_x 6. New Brunswick. After the Supreme Court of Canada held that the Ontario exception of agricultural employees was a violation of the Charter. who prepares alternative contract proposals that will be presented to the union. for example when a temporary help agency provides workers to a unionized employer.'\re 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. This exclusion applies when individuals have more than just access to information. A distinction must be drawn between supervisory personnel and managerial personnel. T he appropriate bargaining unit is referred to below. . and it has been held that they cannot unionize. These factors.Chapter 6 Collective Bargaining Rights other employees. The legality of the agricultural exemption has been challenged pursuant to the Charter of Rights and Freedoms. why should members of the engineering profession be allowed to unionize in most jurisdictions. T here have been cases where unions have attempted to organize individuals who work on mushroom farms. employees may be classified as managers even though they do not have anyone reporting to them if they are involved in independent decision-making and have authority over matters of policy or the di rection of the organization. The policy reasons for these exclusions do not appear to be clear. The Employer When a union applies to be certified as the bargaining agent for a group of employees. or Prince Edward Island? The legislation in Alberta and Ontario prevents agricultural employees from unionizing. Nova Scotia. 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. he or she is eligible for unionization.'\lberta. are provided in Figure 6-2. it must name the employer. the province enacted legislation granting them limited collective bargaining rights.13 The other occupational exclusions might be subject to a challenge under the Charter in the future. If the supervisor does not exercise managerial functions. Ontario. In some jurisdictions. but not in . In Alberta. and a decision of the court was forthcoming at the time of this writing.2 Occupational Exclusions at the end of this chapter provides additional information relating to the occupational exclusion in each jurisdiction. It would not be practical to have the assistant to the director of labour relations. and teachers. which is discussed in Chapter 11. 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 117 . That legislation was subsequently the subject of another Charter challenge. Nova Scotia. which have been referred to and applied in other jurisdictions. Some provinces have special legislation relating to police. and Prince Edward Island. a question migl1t arise as to whether the company named is in fact the employer. be part of the union. AU jurisdictions except Quebec exclude persons working in a confidential capacity relating to labour relations. Where Employees Are Represented b y a Union. depend on whether the first union certified was able to negotiate a collective agreement with the employer. Later in this chapter. The policy alternatives relate to the length of the bar ro another application. a discretionary bar against another application by the same union.118 Chapter 6 Collective Bargaining Rights Figure 6-2 Factors Determining the Identity of the Employer 1. The party hiring the employees 5. The party perceived to be the empl oyer by the employee 7. The party with the authority to dismiss the employees 6. In Saskatchewan. Where Employees Are Not Represented by a Union. the general rule is that an application for certification can be filed at any time. As noted in Figure 6-3. the Board must generally impose a mandatory bar that prevents any union from applying for one year. 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. and whether the bar affects only the unsuccessful union or prevents any union from applying. represents employees. The party imposing any discipline 4. The existence of an intenti on to create the relationship of employer and employee over the worker's activities. In Ontario. the withdrawal of a previous application for certification could mean that an application is not timely. The party exercising direction and control over the employees performing 2. In all jurisdictions. or a mandatory bar. The purpose of these restrictions is to give the first UJuon an opportunity to establish a collective agreement with the employer. Figure 6-3 outlines restrictions in various jurisdictions that could prevent an application for certification until a later time where there has been a recent withdrawal or refusal of an application. we will refer to a union losing its bargaining rights through a decertification process that involves an application to the labour relations board. the refusal of a previous application could affect the time when an application can be made. . Tlus alternative is the policy in two jurisdictions. and ro avoid the disruption that repeated organizing drives could cause. another policy alternative is to prevent an application for certification for a period of time after a decertification. Ontario and Saskatchewan illustrate the most restrictive policy alternatives. The restrictions on an application by a second union. T he policy alternatives are no restrictions at all. H owever. wluch are listed in Figure 6-4. or a previously certified union has lost the right to represent employees. If no union currently Decertification is the process through whic h a union's right to represent employees is term ina ted by the labour relatio ns board . T here 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 Board may impose a bar that prevents an unsuccessful applicant or any other union from applying for one year. The party bearing the burden of remuneration 3. the organization exercising control will be found to be the true employer. In the jurisdictions noted in Figure 6-3. Timelines: When a n Applica tion for Certification Can Be Made T here are restrictions on when an application for certification can be filed that depend on whether or not employees are currently represented by a union. 2)) positions. 25(16)) A lberta Ontario No application from the same union that is the same or substantially the same for 90 days. Generally w here a union's application must bar another app lication by has been dismissed because of unfair any trade union for one year w here labour practices by the union that cannot be remedied by ordering another a union has w ithdraw n an app lication tw ice w ithin 6 months w ith vote. 57) No appl ication from the union decertified for the same or substantially the same unit for 6 months. 40) Board may bar an unsuccessfu I unio n or any uni on representing employees affected by an unsuccessful application from making an application for up to o ne year. (Labour Relations Board Rules of Procedure. (s. (s. unless the Board gives its consent. 40) Generally no application for three months.1) to (1 0. 20) Newfoundland and Labrador No applicatio n by the same union for the same or substantially the same unit for 6 months. (Canada Industrial Relations Board Regulations. Generally w hen a union loses a rel>resentation vote. ss. (s. Is. (s. 33(10)) Manito ba No application by the same union for the same unit. (s. 7(9. except as otherwise specified by the Board.1) to (10. the Board must bar another apJ>Iication by any trade union w ith respect to a bargaining unit containing any oi the same employee positions for one year. or any unit containing the same employees together w ith other em ployees for at least 6 months.1) to (10.2)) 2. 8(14). 13(7)) Generally no application for three months. (s. 30) No other union may apply for 10 months unless the Board abridges that period . s. unless the Board gives its consent. 7(9 . (s. (s. 15)) New Brunswick Board may designate a time that must elapse before an app lication w ill be considered from the same union. (s. (s. unless the Board abridges that period . (n)) . part of the unit. the Board 2. 719 . 54(2)) British Columbia No applicatio n by the same union for a period determined by the Boardminimum bar is 90 days. 7(9)) 1. (s. (s. (s. 2001.Chapter 6 FIGURE 6-3 119 Collective Bargaining Right s Restrictions on Certification Application When Employees Not Unionized Previous Application Withdrawn Previous Appli cation Refused Previous Certification Revoked No application from the same union for the same or substantially the same unit for six months. (s.2)) Pri nee Edward Island Quebec Saskatchewan Board may designate a time that must elapse before an application w ill be considered from the same union. 57) 1. unless the Board gives its consent. 38. W ith some exceptions. 18(m). (s . 46) Federal No application from the same union that is the same o r substantially the same for 90 days. 18) Nova Scotia Board may designate a time that must elapse before an application w ill be considered from the same union. the Board must bar another at>plication by the trade union for one respect to a bargaining unit containing any of the same emp loyee year w ith respect to a bargaining unit containing any of the same employee positions. The Board may bar another applicatio n by the same uni on for a period of up to one year. Prov ided that Board may authorize an appli catio n at other times it's employees o r employer would suffer an unreasonable loss if applicatio n not allowed. 23 12 months from the date of certifi catio n or earli er w ith consent of Board CA < 2 years : w ithin the last 2 months of the term CA > 2 years : during the 23rd and 24th mo nths of the agreement and during the last 2 mo nths of each subsequent year CA < 3 years : after the beginning of the last three mo nths of the term CA > 3 years: during the 34th. Between 30 and 60 days before the anniversary of effective date of certification . However. 35th. 36 12 months from the date of certifi catio n or earli er w ith consent of Board Nova Scotia s. 37 10 months from the date of certifi catio n CA < 2 years: w ithin the last 2 mo nths of the end of the CA term CA > 2 years : in the last two mo nths of the second of any subsequent year British Columbia s. 35th. 35th. Manitoba s. CA > 3 years : during the 34th. and 36th mo nths of the term and during the last 3 months of each subse<1uent year Prince Edward Island s. 19 6 mo nths from the date of certifi cation or ea rli er with consent of Board 7th and 8th month in each year of theCA term . 10 12 months from the date of certifi catio n CA < 3 years: after the beginning of the last two mo nths of the term CA > 3 years : during the 35th and 36th mo nths of the agreement and during the last 2 mo nths of each subsequent year. Newfoundland and Labrador s. and 36th mo nths of the agreement and during the last 3 mo nths of subsequent years Alberta s. 35 12 months from the date of certifi catio n CA < 18 months: 3 months i m mediately before the last 3 months of the term CA > 18 months : 3 months before anniversary date or 3 months immed iately before the last 3 mo nths of the term New Brunswick s. 18. 5(k) Between 30 and 60 days before the anniversal)' date of certifi catio n Section numbers refer to relevant labour relations legislation . and 36th mo nths of the term and during the last 3 months of each subsequent year O ntario s. 23 12 months after certification CA < 3 years : after the beginning of the last 3 mo nths of the term CA > 3 years : during the 34th. if the Board rejects an application the union cannot apply again for 22 months. 24 12 months from the date of certifi catio n or earli er w ith consent of Board Collective Agreement (CA) Between Current Union and Employer CA < 3 years : after the beginning of the last three mo nths of the term. 12 10 months after certification o r ea rli er w ith consent of Board CA < 2 years: after the beginning of the last 2 mo nths of the term CA > 2 years : during the 23rd and 24th mo nths of the term and during the last 2 months of each subse<1uent year Q uebec s. 22 12 months after certification o r 9 months after the expiratio n of a previous agreement CA < 3 years : from 90 to 60 days before expiratio n of CA CA > 3 years: from 180 to 150 days before expiratio n of CA Saskatchewan s.120 Figure 6-4 Chapter 6 Collective Bargaining Rights Restrictions on Time of Application for Certification When a Union Is Currently Certified No Collective Agreement Negotiated by Current Union Federal s. There are significant consequences for the employer. T he open period is commonly the last two or three months of the collective agreement. This bar to an application ranges from 6 to 12 months after the first union was certified. however. unio n is substituted as a party (s.Chapter 6 Collective Bargaining Rights In all jurisdictions while the first union certified is negotiating a collective agreement with the employer. depending on the jurisdiction. unio n is substituted as a party. unio n is substituted as a party (s. 27 (1 )(c)) Manitoba Agreement continues. the collective agreement could cease to operate if a second union was certified in any of the open periods that arise FIGURE 6-5 Effect of Certification of Second (Raiding) Union Federal Agreement continues. Union may apply to Board to terminate agreement by giving 3 mo nth s notice to the employer (s. An employer might enter into a collective agreement with a union that provided for a six-year term. and allow the replacement union to give notice to terminate the existing collective agreement. 33 (5)) 121 A n open period is the time span w ithin which a second union can apply for certification . In the case of collective agreements that have a longer term. and employees involved. 62) Prince Edward Island Agreement continues. union is substituted as a party (s. 17 (c)) Saskatchewan Collective agreement is terminated (s. 27 (c)) Ontari o Collective agreement in terminated (s. Union may terminate agreement at any time by giving 2 months noti ce (s. . If the first union negotiates a collective agreement with the employer. or (2) the collective agreement continues to operate with the replacement union being substituted for the first union. there is a minimum time before another union can file an application for certification. a second union can apply only after the expiration of the time specified in the right column of Figure 6-4. unio n is substituted as a party. 40 (3)(b)) British Columbia Agreement continues. Employers in some jurisdictions should note that a long-term collective agreement might only be valid until the open period in which the union can be replaced by another union. unio n is substituted as a party. 36 (2)) A lberta Agreement continues. The span of time within which a second union can make an application for certification is referred to as the open period. 21 (3)) Newfoundland and Labrador Agreement continues. depending upon the jurisdiction. union. Union may give notice to bargain to renew or rev ise w ithin 3 mo nths of certifi cation (s. 44 (c)(i ii)) New Brunswick Agreement continues. The policy alternatives are as follows: (1) the collective agreement ceases to operate. unio n is substituted as a party. or (3) the collective agreement continues to operate with the replacement union being substituted for the first union. Figure 6-5 shows the policy that has been adopted by each jurisdiction. there is an additional open period during the last two or three months of each year of the agreement. and (4) the collective agreement continues to operate with the replacement union being substituted for the first union. unio n is substituted as a party. and allow the replacement union to terminate the existing collective agreement with the approval of the Board. Parties may agree to terminate agreement or unio n may give noti ce to employer terminating agreement at specified times (s. Union may terminate agreement by giving 2 mo nths notice (s. 50 (c)) Nova Scotia Agreement continues. The effect of the certification of a second or raiding union on any collective agreement that has not yet expired varies across jurisdictions. such as security guards. whether they will be able to renegotiate the collective agreement depends on which jurisdiction they are in. the description refers to a group of employees and then lists jobs that are not included in the unit. not individuals. The legislation requires that the application must relate to a group that is "appropriate" for collective bargaining. 67(1) and (2) of Labour Relations Act 1) After 6 months. A bargaining unit composed of production workers might be described as follows: "All employees of [employer] save and except forepersons. with ot her employees in one bargaining unit. On the other hand. termination. office staff. Managerial employees and employees engaged in a confidentia l capacity regarding labour relations matters cannot be included in a bargaining unit. a strike or lockout could delay an application for certification in some jurisdictions. Standard approaches to the determination of the appropriate bargaining unit in particular industries have developed in each jurisdiction. which are elaborated upon in Chapter 10. or 2) 7 mo nths after M ini ster releases conciliation board report or noboa rd report. each Labour Relations Board has developed its own guidelines. Appendix 6. In the case of a hotel. however. meaning that the death. Bargaining units are often described by exception. the union could not submit an application for only some of the kitchen staff. Appropriate Bargaining Unit A union cmmot submit an application for certification for just any group of employees. as noted in Figure 6-6.122 Figure 6-6 Cha pter 6 Collective Bargai ning Rights Effects of Conciliation or Mediation and Strikes or lockouts on Application for Certification Conciliati on or Mediation Strike or lockout Federal Board's consent required A lberta Board's consent required British Columbia Board's consent required Manitoba After 6 mo nths plus Board's consent rec1uired New Brunswick Delays certification appli cation as prov ided in ss. or 2) 7 mo nths after M inister releases conci liation board report or noboa rd report. and technical employees. could delay an application for certificat ion depending upon the jurisdiction. The conciliation or mediation processes in contract negotiation. however. and in some jurisdictions there are additional restrictions on combining specified occupational groups. that is. 11 (1) and (2) of Industrial Relations Act 1) After 6 months. with significant variations across jurisdictions. or retirement of individual employees does not affect the scope or composition of the bargaining unit. persons above the rank of foreperson. w hi chever occurs first Board's consent required Pri nee Edward Island Q uebec Saskatchewan before the collective agreement expires. Also.3 Appropriate . Labour relations legislation provides some rules regarding the appropriate bargaining unit. employees will be able to replace one union with another. security guards." It is important to note that the bargaining unit is described in terms of jobs. w hi chever occurs first Newfoundland and Labrador Nova Scoti a O ntario Delays certification appli cati on as prov ided in ss. At the time of the application. agreeing with the employer that the minimum size should be at least all the branches in a particular geographic area. Significance of Bargaining Unit. As is the case with many labour relations issues.. the union cannot just omit them.. The key deternlinant of whether jobs or classifications should be included is the "community of interest" of the employees in the proposed unit. In some situations. the union's bargaining power is reduced because a unit composed of a small number of unskilled employees who could be easily replaced if there is a strike puts the union in a weaker position.. and in some cases the units were not large enough to successfully negotiate a collective agreement. the Canada Board refused to recog11ize the employees at a single bank branch as an appropriate bargaining unit.w1ity to make representations to the Board regarding the appropriateness of the proposed unit. several different appropriate bargaining units. community of interest is capable of spanning. such as a city. the employer.-<\Jso. T he Board will certify a bargaining unit as long as it is appropriate for collective bargaining even though there could be other. duties. . however. more appropriate ones. As a result. This concept is not exact. If some employees who should be included in the bargaining unit do not support unionization.. The banking industry illustrates tllis situation." 14 Commmlity of interest is determined by the following factors: • the sinlilarity in skills. it may be easier for the union to apply to represent a smaller unit. T he appropriate bargaining unit is determined by the Board after allowing the employer and any interested employee(s) an opport. 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. deternlining the appropriate bargaining mlit is a question of balancing competing concerns and issues. it will be in a stronger position if the bargaining unit is larger. The Board realized that this policy was a b-arrier to establishing collective bargaining in the banking industry. T he union does not generally have to establ ish that the unit it proposes is the most appropriate one. . This new policy made it easier for unions to be certified. Variables Affecting Determination of the Bargaining Unit. when the union negotiates with the employer. there were very few successful organizing drives. it led to the establishment of small bargaining units that had to bargain with the employer on their own. if employees who have more skills and expertise are not included. however. and changed the policy to allow a single branch to be an appropriate unit. while setting an appropriate bargaining unit that is too small can result in an inability to conclude a successful collective agreement because the employer is able to resist the econonlic power of the union. The nature and size of the unit deemed appropriate can affect whether the union is certified and the negotiation of the collective agreement if the union is certified. Prior to 1977. at a single workplace. some of which may be more appropriate than others. there is an obvious inherent flexibility or elasticity to the concept.Chapter 6 Collective Bargaining Rights Bargaining Unit at the end of this chapter provides additional information about therequirements relating to the appropriate bargaining unit in various jurisdictions. The determination of the appropriate bargaining unit is important to the union. there may be several possible bargaining mlits. and working conditions of employees • the structure of the employer • the integration of the employees involved • the location or proximity of employees 123 . and the employees. The British Columbia Labour Relations Board has referred to conununity of interest and the determination of the appropriate bargaining unit as follows: " . It is noteworthy that establishing smaller bargaining units to facilitate unionization may lead to the creation of units that are not large enough to bargain effectively with the employer. and the union will represent the employees there. not the perfect unit. as previously illustrated in the example of the banking industry.·uions in a municipality or province and the employer moves within the municipality or province. Some Boards have established a unit different from the one agreed upon by the union and the employer. the union continues to hold the right to represent employees. If the employer has more than one location in a municipality or province. Some boa rds have considered the effect the size of the bargaining unit will have on the li kelihood of establishing collective bargaining in an industry. electricians. 15 An exception to this general rule is found in the historical trades. . the Board found that the bargaining unit proposed was not appropriate. Although there may be separate bargaining units certified for full-time and parttime employees. One of the goals of the L1bour Relations Board will be to prevent the situation of an employer having multiple unions and bargaining units to deal with. the units might negotiate collective agreements at the same time. 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. Generally the union cam1ot carve out a particular department or a job classification as an appropriate bargaining unit. If the Board determines that the bargaining unit will include allloc. the second location will be covered by the certification. and did not include other service employees such as ward clerks and housekeeping aides. If a board's policy is t hat the appropriate bargaining unit should be larger in terms of job classes or locations. If the Board allowed several smaller bargaining units ro be established. there might be conflict between different unions. Generally speaking. and other trades that have traditionally been represented by a craft union are usually permitted to be in a separate bargaining unit. In a case where a union applied to be certified to represent registered nursing assistants at a hospital. Although the preferences of the union and the employer are a factor they do not determine the appropriate bargaining unit.millwrights. Avoiding fragmentation is a major factor in the determination of the appropriate bargaining unit. and several negotiations and possible strikes. the Board will not want to set up a situation where there is a small "rump" group who would be denied the opportunity of entering into collective bargaining because they were left out of a larger unit. T he preference of the union has more significance because the union will set out a proposed bargaining unit in the application for certification and the unit only has to be appropriate for bargaining. This possibility is considered in Chapter 8.124 Chapter 6 Collective Bargaining Rights 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. it will be more difficult for a union to organize employees. One consideration that the Board may apply is the number and status of those employees who are not included in the certification. Boards are concerned with the possibility that the determination of the bargaining unit could cause labour relations problems for the employer.a situation that could cause major instability in the workplace as unions contested with other unions for jurisd iction and the employer might be in constant negotiations with one or another of the unions. it must be determined if the bargaining unit should include multiple locations. It also means that if the employer establishes a second location in the same municipality or province. the legislation provides that employee support can be evidenced without a vote if it is established that a specified percentage of employees have signed membership cards. Employers favour a system in which a vote is required. and union and employer request no vote be held Nova Scotia N o. Figure 6-7 lists the jurisdictions in which certification can be obtained without a vote and the support required. if more than 50% of employees in proposed bargaining unit suppo rt union Saskatchewan N o. In other jurisdictions. In some jurisdictions legislation provides that employee support must be determined by a represenration 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. if 65% or more of employees in proposed bargaining unit support union New Brunswi ck Yes. representation vote is mandatory A representation vote is a sec ret ballot vote to determine if employees want a unio n to represent them . if more than 50% of employees in proposed bargaining unit suppo rt union A lberta N o. There is an important policy issue on the question of how support of employees is determined.Chapter 6 Collective Bargaining Rights Determina tion of Union Support In order for a union to be certified. a representation vote will be directed when the union has sufficient support for a vote but does not have enough membership cards signed to be certified on the basis of the cards alone. it is possible that in the jurisdictions that permit certification on the basis of membership cards alone. Newfoundland and Labrador Yes. if more than 50% of employees in proposed bargaining unit suppo rt union. In the jurisdictions that allow certification on the basis of membership cards without a vote. If Board is satisfied that more than 60% of employees in proposed bargaining unit are members it shall certify w ithout a vote. A mandatory vote is a feature of the labour relations system in the United States and is viewed as favouring the employer. representation vote is mandatory O ntario N o. . tmions prefer reliance on membersh ip cards without a vote. If Board is satisfied that mo re than 50% oi employees in proposed bargaining unit are members it may certify w ithout a vote. The question of whether support for the union should be determined on the basis of membership cards or a representation vote is a critical issue that has been extensively debated. representation vote is mandatory British Columbia N o. T hey suggest that since we use the secret ballot in Figure 6-7 Certification Without a Vote: Availability and Support Required Federal Yes. Proponents of a mandatory vote argue that membership cards may be signed under pressure. Accordingly. it must show that it has the support of a majority of employees. representation vote is mandatory Manitoba Yes. it is also provided that a representation vote will be held if the union establishes through membership cards that it has the support of a lower minimum level of employees. The requirement for a representation vote is based on the premise that the true wishes of employees cannot be determined unless there is an opportunity for employees to express their preference secretly. or employees may not appreciate the consequences of signing. representation vote is mandatory Prince Edward Island Yes. if more than 50% of employees in proposed bargaining unit suppo rt union Q uebec Yes. If 100 employees in the bargaining unit are eligible to vote and SO employees actually vote. All jurisdictions provide that a representation vote wiU be held if the union establishes a minimum level of support on the basis of signed membership cards. The vote is held shortly after the application for certification is filed in order to minimize the opportunity for employers to interfere. 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. Certification on the Basis of a Representa tion Vote. employers are allowed to . Brit ish Columbia.16 Certification o n the Basis o f 1\•t embership Cards. the union does not have to obtain the support of the majority of those eligible to vote. For example. employees may be threatened or unduly influenced by the employer. Manitoba. the results of the representation vote are determined by a majority of those who actually do vote.a representation vote is mandatory. FRAMEWORK OF FAIRNESS: AN ALTERNATIVE APPROACH TO OBTAINING BARGAINING RIGHTS Most unions gain the right to represent employees by making an application forcertification to the L1bour Relations Board after conducting an organizing campaign to obtain employee support. Nova Scotia. New Brunswick.126 Chapter 6 Collective Bargaining Rights a democratic society to choose political representatives and determine some issues. but more than 40 percent of employees. employees who do not want to see the union certified must actuaUy vote against the union. the vote is held within five days of the application for certification being filed and the baUot box is sealed pending the resolution of issues such as the eligibility to vote. In Newfoundland and Labrador. regardless of the level of support for the union shown in the application. The minimum level of support required is shown in Figure 6-8. the union would have to obtain 41 votes to be certified in most jurisdictions.a union can be certified without a representation vote if the membership cards filed with the application establish that the union has the support of a specified percentage of employees in the bargaining unit. and Q uebec. Accordingly. and will order a vote if the union has the support of less than 65. but shows it has the minimum support required for a vote. In most jurisdictions. In five jurisdictionsCanada. Prince Edward Island. In a few jurisdictions.Alberta. If the union does not have the level of support required for certification based on membership cards. the Board will order a representation vote. T hey maintain that if there is a vote. a minimum percentage of employees must vote for the election to be valid. we should use the same method to resolve the question of union representation in the workplace. a vote is not held if the union has the support of a majority of employees and the employer and the union consent to dispensing with the vote. In some jurisdictions. Appendix 6. During the organizing campaign. It has been shown that requiring a representation vote reduces the success rate of union organizing efforts. The Board will gram a certification if the union has obtained the required level of support listed in Figure 6-7.4 Certification Procedure at the end of this chapter provides additional information on the certification process in various jurisdictions. Proponents of a card system argue that the workplace is different from society as a whole because of the authority and power held by the employer. and Saskatchewan. Ontario. In five jurisdictions. A study that reviewed the effect of mandatory votes as opposed to relying on membership cards found that votes reduced certification by approximately 9 percent. T he agreement requires the company to introduce the union at the pre-vote meeting and communicate to employees that the union and the company have a positive rela tionship. the CAW will be recognized as the bargaining representative for the employees.Magna national agreement. and allow the tmion to meet with employees prior to the vote on working time. if less than 70% vote: majo rity oi employees who could vote Nova Scotia 40%. The agreement provides that employees at each division of Magna will be allowed to vote by secret ballot on the question of whether they wish to be represented by the CAW under the terms of a CAW. that could involve a strike or lockout. 45% when union appiies to d isplace a nother union No ne specified Majo rity oi votes cast New Brunswick 40% None specified Majo rity oi those who are in attendance on day oi vote Newfoundland and Labrador 40% None specified li at least 70% vote: majority of votes cast. If employees ratify the national agreement. T he Framework of Fairness Agreeme nt between Magna and the CAW is a radical departure from traditional labour relations where there could be one battle over the union gaining bargaining rights. coercing. T he FFA provides that Magna will take steps to facilitate the union obtaining the support of employees. the employer and the union then attempt to negotiate a collective agreement. 50% +1 when union applies to displace another unio n Vote is void if less tha n 35% vote Majo rity of votes cast Alberta 40%. T he parties agree that they will communicate their support for the principles . and they will become members of an amalgamated local for Magna employees. vote is mandatory Board may o rder anothe r vote Majo rity of votes cast if less than 55% vote Manitoba 40%. If the union is certified. vote is ma ndatory None specified Majo rity of votes cast Pri nee Edward Is land 50% +1 None speci fied Majo rity of votes cast Quebec 35% No ne specified Majo rity oi those e ligible to vote Saskatchewan 45% Majority of e ligible voters Majo rity oi votes cast campaign against the union provided that they do not commit unfair labour practices such as threatening. provide union representatives access to employees during nonworking hours. and a second confrontation over the terms of a collective agreement. 50% +1 when union applies to displace another unio n. T he company agrees it will provide the union with a list of all employees. vote is ma ndatory None specified Majo rity of votes cast Ontario 40%. or intimidating employees discussed in the next section. vote is ma ndatory None specified Majo rity of votes cast British Columbia 4 5%.Chapter 6 Collective Bargaining Rights FIGURE 6-8 Rules Relating to Representation Votes Minimum Level of Support Required for Representation Vote Minimum Percentage of Vote rs Required Required Level of Support for Union to Win Vote Federal 35%. the term has broad meaning . Although Canadian labour relations statutes are similar. an employer who provides an out-of-the-ordinary wage increase at the time of a union organizing campaign is comnutting an unfair labour practice because this conduct is prohibited by labour rela tions legislation.'\n unfair labour practice might also occur during the negotiation of the collective agreement. In most jurisdictions. CONDU C T DURING ORGANIZING AND CERTIFICATION PROCESS U nfa ir lab o ur practi ces are contraventions of labour rela tions legislation. At one time. Although most unfair labour practices arise during the orgarlizing campaign and certification process. 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. An unfair labour practice is a contravention of the relevant labour relations legislation by an employer. Although the agreement provides that the parties will respect the rights of employees to choose whether to be represented by the union. or employee. it is possible that conduct that is an unfair labour practice in one jurisdiction may not be an unfair labour practice in another jurisdiction. This conduct is not an unfair labour practice. or during the admirlistration of the agreement. there is a provision that the employer has the right to express an opinion or exercise "free speech. T he purpose of this practice may be to avoid unionization." provided it does not threaten or coerce employees. it is not deemed an unfair labour practice because the legislation has not been violated. labour relations legislation prohibits certain employer and union conduct. there was no free-speech provision in the Canada Labour Code. it requires Nlagna to encourage employees to vote in favour of the agreement and union representation. as well as the union's duty of fair representation in the course of administration of the contract. soliciting union members during working hours is an unfair labour practice in most. Note t ha t t he term "unfair" is not a reference to a subjective opinion about whether certain conduct is fair. but the reply could not go further and include statements that might be viewed as campaigrling for a vote against the union. and unfair labour practices relating to those areas are discussed in subsequent chapters. Even though the employer's practice is aimed at preventing unionization and may appear to be "unfair" to union supporters. H owever. To protect this basic right. and employer and union conduct that is permissible. union. The Canada Industrial Relations Board held that this meant that employers were required to remain neutral during an organizing campaign.128 Chapter 6 Collective Bargaining Rights and values in the FFA and the national agreement. 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. The legislation includes the duty to bargain in good faith. For example. because it is not prohibited by labour relations legislation. because one of the parties contravenes labour relations legislation. The employer was allowed to respond to union campaigning that was defamatory. 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. We will now consider employer and muon unfair labour practices during the organization campaign and the certification process. but not all jurisdictions. 17 This was changed when the Code was amended to add a provision that employers could express their views. . The issue is whether the conduct is prohibited by legislation. . the remedies that are available. actions such as firing union supporters. ( 1\_ . Refuse to employ or discriminate regarding the terms of employment because oi union membership 6. intimidate.129 Chapter 6 Collective Bargaining Rights EMPLOYER UNFAIR LABOUR PRACTI CES Employer conduct that labour relations legislation prohibits during the organizing campaign and certification process is noted in Key Considerations 6-1. selection. T he basis for this is that the legislation prohibits employers from interfering with the employees' decision regarding unionization. interrogating employees regarding their possible support for a union. Threaten. It may be more difficult to understand why some employer conduct. T he Board found that this was an unfair labour practice because it was interfering with the employees' decision regarding unionization. and coercion. or adm inistration of a trade unio n or contribute financ ial or other support to a union 5. but includes any changes made for purposes of influencing the employees' decision. intimidation. and (2) interference or influence by the employer. T his prohibition is not limited to changes in compensation. In one case. The legislation prevents two broad categories of employer behaviour: (1) threats. Change the terms and conditions of employ ment during the certification process 2. intimidation. Take any action against an employee because the employee has exercised any of his or her rights under labour relatio ns legislation 3. Most observers would agree that threats. the employer solicited employee concerns and attempted to address the problems raised. T he Board summarized the situation as follows: There is nothing in the Act which prohibits an employer whose employees are unorganized and who are not the subject of a union organizing campaign. or coerce an employee to com- pel him or her to become or refrain from becoming a member or officer of a union 1. and coercion by employers should not be allowed. After a union organizing campaign started. such as a change in working conditions in the face of an organizing campaign. and threatening to move or shut down operations if the employees unionize. is an unfair labour practice. including hiring additional employees so that excessive hours would be avoided. an employer had not taken action on employee complaints relating to working conditions. transferring union supporters. Considerations 6-1 Employer Unfair Labour Practices Labour relati ons legislatio n in most jurisdictions provides that employers cannot: 4 . Impose a conditio n in a contract of employment that restrains an employee from becoming a member of a union Changes in Working Conditions Boards have held that employers who have changed working conditions in response to a union organizing campaign have committed an unfair labour practice. Participate in o r interfere w ith the formation. the Act and the employer is prohibited from acting with an intention to interfere with the selection of a trade union.. T llis case illustrates that the free speech provisions of the statute are subject to the restrictions against changing the terms of employment. Furthermore. T he 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. which the legislation allows. 19 T he reason for this was that in the eyes of employees. H owever. Whether the consent must be obtained from the Board or the union nlight be . the employer had in effect changed their terms of employment. the plan was a change. is subject to the same exception. T here is also a freeze imposed during the negotiation process. The Board found that this was a violation of the freeze. and benefits they are entitled to. New Brunswick. In Alberta. When the employer brought the plan to the attention of employees during the freeze. if the employer has an established practice of providing wage increases at a particular time of the year. and may have the effect of causing employees to turn their back on the option of collective bargaining. 18 Changes made by an employer in response to a union orgalllzmg campaign might be viewed as threatening because of the possible inference that future benefits or improvements depend upon the employees not supporting a union. T his prohibition on changes is known as a statutory freeze . privileges. British Columbia. The freeze does not prevent the employer from making any changes. Statutory Freeze The statuto r y fr~~z~ is a peri od w hen the employer is prohibited from making changes in the terms of employment. Manitoba. The knowledge or expectations of employees are a factor affecting whether the employer has violated the freeze. the employer informed employees of a benefit plan that had been in existence but employees had been unaware of. referred to in Chapter 8. Employers who have changed the method of payment from cash to cheque. it prevents changes that are not "business as usual. once a trade union begins to organize. Ontario. it would be required to provide the wage increase during the freeze. The granting of benefits or the solicitation of employee grievances during the course of the union organizing campaign if motivated even in part by a desire to undermine a trade union breaches these prohibitions. A promise to provide longer vacations if the union is defeated would be an unfair labour practice. that change would be a violation. Nova Scotia. but has not communicated the change to employees before the freeze begins. it is protected by . In one case.. H owever. it would be a violation of the freeze to provide the wage increase earlier. Where the employer has made a decision to implement a change. and Saskatchewan. and Prince Edward Island legislation provides that the employer is allowed to make changes if the consent of the Board is obtai ned. The federal. unless the change is carryi ng on business as usual. it illustrates that employers should ensure that all employees are fully aware of all of the rights. The employer had claimed that advising the employees about the benefit plan was exercising free speech. which is reviewed in Chapter 8. The freeze imposed during negotiation. Quebec. . Newfoundland and Labrador.130 Chapter 6 Collective Bargaining Rights from providing terms and conditions of employment which are designed to." For example. Employers are not allowed to make promises tied to the defeat of the union. failed to schedule overtime in accordance with past practice... the employer is allowed to make changes in the terms o f employment during the freeze if it obtains the consent of the union. and altered rules regarding access to and use of phones have been found guilty of violating the freeze provision. Responding to union claims.-~ 6-2 Permitted Employer Conduct during an Organizing Campaign 1. o r have the required approval 7. or coerce e mployees. promises or undue influence. " 20 T here are some differences between jurisdictions regarding limits on employer communication with employees.Chapter 6 Collective Bargaining Rights 131 significant to the employer. the employer. Prohibiting entry into the workplace by persons who are not e mployees 2. Prohibiting entry into the workplace by e mployees during their off hours 3. or coerce e mployees. Even though the employer had a valid business reason to open Sunday. ~ Considerations . \Vhen it requested the union's consent. Communicating with employees regard ing unionization and employer practices. intimidate. or (b) involve promises o r benefits lin ked to the defeat of the union 5. Establishing rules that prevent solicitation of uni on membership during working hours 4 . a retailer. Labour Relations Issue 6-1 illustrates actual statements that have been made by employers. provided that theresponse does not: (a) threaten. Key Considerations 6-2 summarizes conduct that the law permits. 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. the union refused. provided that suc h communication does not: (a) threaten. which provides as follows: " An employer is deemed not to contravene (the Code) by reason only that they express a personal point of view. threats. In one case where the legislation required the consent of the union. provided that such cha nges a re not an atte mpt to influe nce employees 6. intimidation. the business case for the change could have led to the Board granting its approval. \_ . T he employer sought volunteers to work the Sunday hours. instead of obtaining permission from the union. In most jurisdictions. provided that any such cha nges are part of business as usual. PERMISSIBLE EM PLOVER CONDUCT It will be helpful to summarize what the employer is allowed to do during a union organizing campaign. In a jurisdiction where the employer can make changes with the approval of the Board. intimidate. Changing working conditions and practices during the statutory freeze. so long as the employer does not use coercion. there is provision similar to the one in the Canada Labour Code. Changing working conditions and practices prior to the start oi the statuto ry freeze. wanted to implement Sunday shopping hours in response to competition. or (b) involve prom ises o r be nefits linked to the defeat ( of the unio n • 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. . However.. because the results will be decided by those who vote.. . what voice will t hey let you have in running the union's affairs? [In a jurisdiction where the legislation provides that t he results of a representation vote are determined by a majority of those who vote. 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. A court decision in that province indicates that an employer may be able to establish a blanket rule against solicitation of lmion membership on employer property covering both working and non-working hours.. the employer could establish rules that prevent such solicitation during working hours. . Prohibiting Entry Employers can prohibit individuals who are not employees. but not enough employees were interested. from coming into the workplace. Ask yourself why t he union is interested in you: is it because the union needs the money that it will receive from union dues deducted from your cheque? How much are these union dues and what would you get in return for these dues? . . Is this union really any different? Will the union involve you in strikes or picket lines? If t here is a strike. how much? It is difficult to think of trying out a union..] It [is) essential that you vote. It is important to remember that in this election. vote yes. only one candidate-the union-can make promises. Rules imposing restrictions against union activity may be subject to the condition that the employer has not allowed other non-work-related conununication between employees in the past. In one case. including union organizers. re-examined in light of the employee's needs. 21 Enforcing such a rule would be difficult and establishing the rule could backfire against the employer because the union could use it as an illustration of the employer being unfair. . will the union pay you if you are on a strike? If so.. How well do you really know the union leaders. Every one of our employees has been treated as an important conrributor. this might be viewed as interference with the organizing process. . Once a union is certified.. Check with the Labour Board or check out the law for yourself and you'll find out how difficult it is. Don't let t he union get in by default. The situation appears to be different in N ova Scotia.. it is very difficult for employees to undo that decision. the Steelworkers tried to unionize . we have been ready. [U]nions can make promises just like a politician t rying to get elected[... law prevents the company from making any such promises to you. 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.. willing and able to deal with it right away.. If an employee had a concern or if there was something that rightfully should have been looked at. It is also possible for employers to prohibit employees who are part of a lmion organizing conunittee from coming into the workplace during their non-working hours..] however. This means that the union will be certified if more than 50 percent of those who vote. We feel t hat nobody will ever represent you better than yourseU. [W)e have had an open door policy. the employer had allowed members of a staff association to use the employer's internal mail system to communicate with each other.132 Chapter 6 Collective Bargaining Rights What Employers Have Said in Response to a Union Organizing Campaign The following are excerpts from employer letters and pamphlets in response to union organ izing campaigns. including those union representatives in the workplace? Ask yourself. 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. including the right to join a union. solicitation of membership during working hours is an unfair labour practice. or coercion to sign members. and the solicitation would only be prohibited if it disrupted the workplace. The employer can depart from business as usual if it obtains the consent of the union or the Board. or coercion to compel a person to become or cease to be a member of a trade union and (2) solicitation of union support during working hours. if individual employees make statements to their co-workers that their jobs could be at risk if they do not join the union. 24 REMEDIES FOR UNFAIR LABOUR PRACTICES T he rights and obligations provided in labour relations legislation. It has been established that working hours do not include breaks and lunch periods even if they are paid. after a union organizing campaign started. working conditions. Employers should document the business reasons for changes during an organizing campaign. 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. provided the changes are not made for the purpose of discouraging unionization. The Boards do not view such statements as equivalent to coercion or intimidation and will not interfere with a vote preceded by misleading or false information provided by the union. All jurisdictions prohibit the union from using threats. It may be frustrating for employers to know that during the course of an organizing campaign they cannot make promises to employees because they would be viewed as interfering with employees' choice as discussed above. 23 Accordingly. solicitation during non-working hours is permitted. T hey can make changes.Chapter 6 Collective Bargaining Rights Subsequently. Accordingly. UNION UNFAIR LABOUR PRACTICES There are two possible unfair labour practices unions must avoid at certification: (1) intimidation. or policy prior to the start of the statutory freeze period. in Manitoba and Ontario. All jurisdictions except Manitoba and Ontario expressly prohibit attempting to persuade an employee to become or refrain from becoming a union member during working hours. We will now examine the procedure followed and remedies available in the event of 133 . intimidation. For example. threats. The Board held that the employer had conunitted an unfair labour practice by interfering with the organizing of the union. solicitation during working hours is not automatically an unfair labour practice. would be meaningless without an effective enforcement mechanism. The provisions in Manitoba and Ontario regarding workplace solicitation are unique and may be widely misunderstood. however. After the st<ltutory freeze has started. while there is no equivalent restriction on the union. Boards have received complaints of false or misleading statements made by unions during organizing campaigns. the statements are not unfair labour practices even though they would be if made by union officials. the employer prohibited use of the system for union-related communication. the employer must be careful to continue with business as usual. 22 Employers should not think that a union organizing campaign prevents them from making changes in compensation. T here is nothing to prevent the union from making promises ro employees during an organizing campaign. Instead of prohibiting solicitation during work hours. depending upon the jurisdiction. and propose an appropriate remedy if it was. a Board employee. and Nova Scotia. A hearing might take a few hours or a few weeks. Reinstatement of discharged emplo)'ees 2. and Saskatchewan) provides that where a complaint alleges an employee has been threatened. Access order 6. When a union supporter has been dismissed.134 Chapter 6 Collective Bargaining Rights unfair labour practices by employers or unions during the organizing campaign and certification process. Compensation for financial losses 3. New representation vote 10. Individuals with expertise in labour relations will consider the complaints. Referring unfair labour practice complaints to Boards instead of dealing with them in the court system has at least two advantages. and many are withdrawn. Posting or mailing of a notice to emplo)'ees 5. Prosecuti on . it might order one or more of the remedies listed in Figure 6-9 depending upon the nature of the unfair labour practice. In most jurisdictions. Quebec. Ontario. Interest on monies awarded 4 . Cease and desist order 8. If a complaint is not settled or withdrawn. Remedies If the Labour Relations Board determines that unfair labour practices have been comnutted during the organizing campaign. FIGURE 6-9 Remedies for Unfair Labour Practices 1. depending on the number and complexity of the issues. In other jurisdictions. the Board will carefully determine if the explanation provided by the employer is credible. the Board may exercise its discretion to refuse to deal with the complaint when there has been an undue delay. to attempt to settle the complaint so that a Board hearing is not required . . the onus of proof is reversed and placed on the employer. British Columbia. N ova Scotia. Procedure If either the union or the employer thinks that an unfair labour practice has been committed. or dismissed because of union activity. The employer must establish there was no violation of the legislation. coerced. New Brunswick. In the federal jurisdiction. there is a provision for a labour relations officer. the employer will have to show there was a reason for the dismissal other than union activity. they may file a complaint with the Labour Relations Board. In the case of a dismissal. Each side has an opportunity to present witnesses and documents as evidence to determine whether or not the legislation was contravened. Prince Edward Island. a complaint must be filed within 90 days. and they may be dealt with faster. Certification without a vote or remedial certification !Not available in all jurisdi ctions! 11. Burden of Proof Labour relations legislation in most jurisdictions (Canada.tvlost unfair labour practice complaints are settled. the Board will hold a hearing to determine whether there was a violation of the legislation and the remedy that should be provided. O rder prohibiting future unlawful conduct 9. Freeze on working conditions 7. Boards have ordered rhat the union have an opportunity to meet with employees on employer property during working hours. The Board will order the innocent party to be compensated for any financial losses flowing from the unfair labour practice. Compensation or Da mages. 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. If the Board orders the employer to pay compensation for lost earnings for an earlier period. T he purpose of the remedy a Board grants is to compensate the victim and deter future misconduct. It attempts to put the innocent party in the posirion they would have been in if the legislation had not been violated. Some Boards have ordered the employer to provide the union with notice of any meetings of employees and an opportunity to attend and respond. Where it is found that employees have been terminated because of their union activity. Boards have ordered a freeze on working conditions. T he purpose of this order is to allow the union to respond to employer claims and alleviate employee concerns about unionization. For example. Employees who have been discharged for union activity will be awarded compensation equivalent to their lost earnings. Cease and Desist Order. the Board will order them to be reinstated. which directs the employer to stop violating the legislation. 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. Boards have also awarded compensation to unions when they have incurred additional costs in cotmtering unfair labour practices of the employer. However. Where employers have threatened employees or provided false information. in addition to reinstatement. to vote as they wish. When either the union or the employer has been guilty of intimidation or coercion so that employees would be afraid the Board may order a new vote. and to allow the union to use bulletin boards and other communication tools.Chapter 6 Collective Bargaining Rights Most unfair labour practice complaints during the organizing campaign are allegations of employer misconduct such as threatening employees. Access. Any monies an employee earned or could have earned after rhey were dismissed will be deducted from any damages awarded. not to punish the party who has violated the legislation. 135 . interference with the union. employers have been ordered to cease and desist from questioning employees about union involvement. Notice to Employees. New Representation Vote. and the discharge of employees involved in union activity. Boards have also ordered employers to provide unions with the names and addresses of employees. For example. a Board could make an order that prohibits future tmlawful conduct. the Board will order that interest be paid on the amount owing. Similarly. One of the most common Board orders is a cease and desist order. discharged employees have a duty to mitigate or take reasonable steps to reduce their loss. Freeze on \Vorking Conditions. Where employers have changed working conditions in violation of the legislation. Reinstatement o f Discharged Employees. In the federal jurisdiction. Later still. The Board concluded that the e mployer had led employees to believe that if they supported the union they would lose the ir jobs. La bour Relations Issue 6-2 addresses this critical issue. in light of the employer's previous commitment to respond to questions. Management continued with this approach after being advised by the union that the refusal to answer the question was causing employees concern. N ew Brunswick. The ma nagers present did not distance the company from the employee's remarks . Whe n e mployees asked if the store might close if the union won. T he cert ificat ion of the union without a vote (remedial certification) is one of the most contentious remedies a Board may grant. the Board has the authority to certify the union without a vote or despite the fact that the union has lost the vote. a Conservative government amended the Act and removed the Board's authority to certify a un io n without a representation vote." Employees were supposed to get answers to questions before the end of the business day on which the questions were raised. T he relationship between the union and the employer is ongoing. A contravention of the legislation or a Board order is an offence for which the guilty party can be prosecuted. the Ontario Labour Relations Act provided that the Board had the autho rity to certify a union without a vote when the employer had vio lated the Act and the true wishes of the employees would not be revea led by a vote. At the time of the hearing. British Columbia. another was a "sundown rule. The Board certified the union despite the results of the vote. Depending on the jurisdiction. or . and Ontario. Prior to the representati on vote. DECERTIFICATION Decertification is the process by w hich a Labour Relations Board revokes the right granted to a union to represent employees and bargain on their behalf. Ontario. four senior managers from outside the sto re circulated amo ng employees. At one meeting. an anti-union e mployee spoke out aga inst the union and said that the employer would not put up with a union.Chapter 6 136 Collective Bargaining Rights Certification without a Vote. what is to prevent employers from flagrantly violating the legislation in o rder to avoid unionization/ Prosecution. Wai-Mart held meetings w ith e mployees at the begi nning and e nd of each day. a nd it is invoked only in exceptional circumstances where the employer has been guilty of serious misconduct. and they restored the Board's authority to certify a union without a representation vote. "\ Labo I Should Certification without a Vote Be Available as a Remedy for Unfair Labour Practices? The United Steelworkers of Ame ri ca launched an organizing campa ign at a Wa i-Mart store in Windsor. termination. The union lost the representation vote by a vote of 151 -43. Should a Labour Relations Board be allowed to certify a union without a votellf the Board does no t have th is authority. the managers replied that it would not be appropriate to answer the question. The most serious was the refusal to answer the question about the possibil ity of the store closing. tvlanitoba. The consent to prosecute wiU only be granted in exceptional cases. Subsequently. I n most jurisdictions. and a prosecution might harm the relationship. Pro-u nio n e mp loyees were not given a n opportunity to respond because the store was about to open. Subseq uently the uni on filed an un fa ir labour practice compla int because of several eve nts du ring the o rganizing ca mpaign. Wai-Mart had adopted practices th at were intended to establish open commun ication with employees. rescission. the legislation will refer to decertification. O ne practice was an open-door po licy. The Board found that the re were three vio lations of the Act by the employer. N ova Scotia. prosecution is not allowed unless the consent of the Board or the Minister of Labour is obtained. a Liberal government was elected. and this evidence is filed with the Board. If decertification is too difficult to obtain. there are restrictions on the decertification process. 25 When a vote is held. the basis for the application. A union's bargaining rights can be terminated on different grounds. N ova Scotia is a special case that is dealt with in Appendix 6 . employees will lose protection against union inefficiency and freedom of choice regarding their bargaining representative. and Saskatchewan) require the same minimum level of support for a decertification application as a certification application. Accordingly. Employees in the bargaining unit sign a statement confirming that they do not want the union to represent them. the process poses a policy dilemma. 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. Ontario. whether a vote is required. and when the application can be made. Prince Edward Island.5.federal. and Quebec.require a higher level of support for a decertification application than is the case for a certification application . Three jurisdictions.5 Decertification Procedure at the end of this chapter provides information relating to unique features of the decertification process in some jurisdictions. N ew Brunswick. including who can apply. as shown in Figure 6-10. H owever. or wish to be represented by the union. T he employer and the union are not given the names of the employees who apply.Chapter 6 Collective Bargaining Rights revocation of bargaining rights. The minimum level of support that is required for the application in each jurisdiction is shown in Figure 6-10. We will first consider the most conunon ways a union loses bargaining rights that apply in all jurisdictions. 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. 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. Seven jurisdictions (Alberta. T he federa l Board's policy is to require a vote if the union challenges the application. T he vote is held within the same time frame as a representation vote on a certification application. T he key policy issues here are the minimum level of support required for an application.and then consider additional grounds for decertification that vary across jurisdictions. British Columbia. Figure 6-10 also shows whether a vote is required. Similarly. and how the results of any vote are determined. unions may be subject to attack by employers and anti-union employees. together with an application to decertify the union. DE CERTIFI CATI ON APPLICATION BY EMPLOYEES All jurisdictions provide that employees can apply to decertify the union on the basis that they no longer support. Decertification allows employees to rid themselves of an ineffective union or change unions. T he 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. Procedure The process for decertification is similar to that for certification.a decertification application by employees or the certification of a different union. the Board may still direct a vote to sa tisfy itself that the majority no longer wish to be represented by the union. In the jurisdictions where a vote is not required. depending upon the jurisdiction. 137 . there is variation across jurisdictions on how the results are determined. If decertification is available without any restrictions. Manitoba. Newfoundland and Labrador. Appendix 6. Saskatchewan 45% + 1 Yes. In British Columbia. there are special provisions allowing for the decertification of a union that has been voluntarily recognized. As in the case of an application for certification. Yes. Majoril)' of ba llots cast required. provided in Figure 6-4. Timelines: When a n Applica tion for Decertification Can Be Made T here are restrictions on when employees are allowed to make an application. In the federal jurisdiction. If more than 70% of e mployees vote the union is decertified if 50% + 1 casting ballots vote against the union. Absent employees a re not counted as el igible.138 FIGURE 6-10 Chapter 6 Collective Bargaining Rights Decertification Application by Employees: Support and Vote Requirements Minimum Support Required on Application Federa l 50% + 1 Vote Required No. an application for . with one exception. Majority of ballots cast required. as provided in Figure 6-4. unless union does not oppose application. Where vote held majo rity of ballots cast req uired. A vote of 50% of employees e ligible is required. In these jurisdictions. the policy is to prohibit an application for decertification for a longer time. Majoril)' of ba llots cast required. New Brunswick 40% Yes. When there is no collective agreement in place. "signifi cant numbe r" of unio n members Yes. Majority of ballots cast required. T hree jurisdictions provide an exception where the union was voluntarily recognized instead of being certified. Q uebec 50% + 1 No. Majorit)' of ballots cast required. O ntario 40% Yes. Alberta British Columbia 45% Yes. If less than 70% of employees vote 50% + 1 of employees e ligible to vote must vote against uni on. Prince Edward island 50% + 1 No. Where vote held majo rity of ballots cast req uired. When a collective agreement has been negotiated. Manitoba 50% + 1 Yes. Nova Scotia 50% + 1 of employees o r. Where vote held majority of ballots cast req uired. If no agreement has been negotiated. All jurisdictions except Quebec allow a union to obtain bargaining rights through voluntary recognition by the employer instead of certification by the Board. and Ontario. a second union can apply to be certified after six months in British Columbia. Majority of ballots cast required. the restrictions depend on whether 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. but an application for decertification cannot be made until 10 months after the tmion was certified. Newfoundland and Labrador 40% Yes. in aU jurisdictions the decertification application cannot be made until the time an application for certification by a second union is allowed. New Brunswick. T hese restrictions are provided in Appendix 6. Restrictions An application for decertification must be a voluntary act by employees. An employer and a muon in these jurisdictions who have concluded a collective agreement after entering into a voluntary recognition agreement face uncerminty in the first year of the agreement's operation that would not exist if the Board had certified the muon. In most jurisdictions. 30. 11 2 (2)(k)). there are significant periods of time when employees cannot make an application for decertification. (Regulations sectio n 39. fiGURE 6-11 Bars to Repeated Decertification Applications Federal No appli catio n by any employee for six months unless the Board bridges this time. (s. 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. employees must wait 10 months to a year after certification to make an application to decertify. 57) British Columbia Board ca n bar another appli cati on if the union w ins vote. 126 (2)). (s. depending on the jurisdiction. T he purpose of tlus 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. If there is no collective agreement negotiated. it will be rejected. or encourages it. (s. the applica nt cannot reapply for 90 days. 46) Alberta If Board refuses a decertification appli cati on. If the employer provides assistance to the employees making the application. In Manitoba and the federal jurisdiction.5. 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. 52) Nova Scotia O ntari o Prince Edward Island Q uebec Saskatchewan An application by any employees affected by an unsuccessful appli catio n can be barred for one year. 139 . (s. 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. Newfoundland and Labrador A 6-month bar is imposed after any decertification application is dismissed. In Ontario and New Bnmswick. (s. 90-day minimum bar if imposed. the open period in which a decertification application can be made could be delayed even longer. 33) Manitoba New Brunswick Board may refuse another application from unsuccessful applicant for up to 10 months.Chapter 6 Collective Bargaining Rights decertification can be made at any time in the first year of a collective agreement. the legislation also allows for the ternunation of the union's bargaining rights during the first year of a voluntary recognition agreement where no collective agreement is reached. Figure 6-11 provides the relevant bars. In summary. If there is a collective agreement with the employer. In some jurisdictions. T hese provisions protect the muon for 90 days to a year depending on the jurisdiction. there is a provision to protect the union against repeated decertification applications. or replacement.26 In British Columbia.27 T hese numbers indicate that decertification is a significanr threat ro unions. 25 Failure to give notice to bargain o r bargain s. w hich are listed by jurisdiction in Figure 6-12. T he terminations were 14 percent of the certifications granted. and the impact on any existing coUective agreement was stunmarized in Figure 6-5 . The restrictions on when an application could be made by a second union were outlined in Figure 6-4. 16 . 5(k). 40 No collective agreement: employer can apply where no agreement reached in 3 years after certifi catio n or 3 years pass after an agreeme nt expires s. there were 96 applications for certification granted and 59 declarations of termination made. ADDITIONAL G ROU NO S FOR 0 ECERTI F ICATI O N Some jurisdictions provide additional grounds to decertify the union that w ill be briefly referred to here. the situation from the union perspective has been even worse in recent years. CERTIFI CATION OF A DIFFERENT UNION Employees who wish to change unions do not have to apply to decertify their current union before a second.140 Chapter 6 Collective Bargaining Rights Significa nce To put decertification in perspective. D ecertifications on t he basis of these additional grounds. 20(1) Fraud s. union is certified to represent them. T he decertifications granted on applications by employees amounted to 32 percent of certifications. we might observe how many decertification votes unions lose and compare the number of losses to the number of certifications for the same time period. fiGURE 6-12 Federal Alberta British Colum bia Manitoba New Brunswick Newfoundla nd and Labrador Nova Scoti a Ontario Prince Edward Island Saskatchewan Additional Grounds for Decertification Frauds. are not common. 24(1)(2) Fraud s. T he annual report from the Ontario Labour R elations Board for 2007-08 indicates that there were 422 applications for certification granted and 59 declarations of termination made. 25 No employees in barga ining unit for 2 years s. T he effect of the certification of a second union was previously discussed under the heading of certification. 64(1) Failure to give notice to bargain o r bargain s. 53 Frauds. the first union loses its bargaining rights. 51 (1 ). 52 Failure to exercise bargaining rights within 12 mo nths of certification s. 52(5) Frauds. A second union can apply to represent employees in the open period for a certification applica tion. 65 Employer can bring application on ground that majority of employees no longer wish unio n to act on their behalf s. In 2008. If the second union is certified. it must give the employer notice that it wishes to bargain to reach a collective agreement. A letter containing false information circulated among employees would not be covered by these provisions. Successor rights provisions in labour relations legislation deal with these issues. If the employer sold the business. The definition in the Canada Labour Code provides that a sale " includes the transfer or other disposition of the business. or fails to bargain. T here is some variation in the provisions across jurisdictions. New Brunswick. unless the union indicates that it no longer wishes to represent the employees. Ontario. the union continues to hold bargaining rights for the employees.. Sale has been broadly interpreted and will likely include a business transfer that may not normally be viewed as a sale.tvlanitoba. and Saskatchewan provide for termination of the union's bargaining rights if the certification was obtained by fraud. It will direct a representation vote. Similarly. any previous certification and collective agreement bind the purchaser of the business. the union may be decertified.. T he Board does not automatically decertify the union when it has failed to bargain. the certificate issued by the Board provides that the union represents a bargaining tulit of employees working for the employer named in the certificate. Fraud refers to making false statements to the Board. Prior to the expiry of a collective agreement. subject to some exceptions.Chapter 6 Collective Bargaining Rights 141 Failure to Give Notice to Ba rgain. in Alberta there is a provision for decertification of the union when there is a failure to reach a collective agreement after three years. " 29 In one case. Fraud would include such actions as forging signatures on union membership cards or deliberately misstating the number of employees in the application for certification. Legislation in Ontario and New Brunswick provides that if a union fails to give notice to bargain. including how it is determined whether there has in fact been a sale of a business. Failure to Reach Agreement In most jurisdictions. or to Bargain Labour relations legislation provides that after a union is certified. Generally the successor rights provisions confirm that. mechanics. a critical question will be whether there has been a sale of the business as defined in the legislation. a municipality had a contract with a company to provide drivers. 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. There is variation across jurisdictions regarding who can make the application. either the union or the employer can give notice to the other to negotiate its renewal.28 In all jurisdictions. and does not include false statements made to other parties. An application to decertify the union because of its failure to bargain can be made by either the employer or the employees. the failure to reach a collective agreemem does not provide a basis for decertification.. and other staff to the municipality for the operation of the Successor rights protect the rights o f the unio n and any collective agreement if a business is sold . Readers should refer to the legislation in their jurisdiction for further information and possible variations. The purpose of this provision is to prevent the union from sleeping on its rights. any collective agreement negotiated will provide that the agreement is between the union and the employer named in the agreement. SUCCESSOR RIGHTS When a muon is certified. H owever. . Termina tion Where Certificate Obtained by Fra ud The federal jurisdiction. An application for termination for fraud can be made at any time. 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. . Employers who wish to avoid mlionization should review the factors discussed in this chapter. The certification process. . In cases in which the union has been certified and negotiations with the employer are under way when the sale of the business occurs. serious unfair labour practices by the employer could lead to the certification of the union without a vote. including a possible requirement for a vote of employees. A tulion represented the employees of the company The municipality terminated the contract and hired its own drivers.142 Chapter 6 Collective Bargaining Rights municipality's transit system. Unions seeking to organize a workplace should determine the issues that employees are concerned with. The union that held the bargaining rights for the company's employees sought a declaration that there had been a sale as defined by the legislation. 2 . The Board found that there had been a sale of the business as defined by the Act. including compensation. Employers and unions should refer to the legislation and information available from the ministry responsible for labour issues in their jurisdiction. Additional issues will arise when the buyer of a business combines employees of the business purchased with employees of another business. 3. many of which relate to matters other than compensation. If there is a collective agreement between the union and the seller of the business. it must cease until the successor employer and the union have gone through the conciliation process. the purchaser is treated as the employer for purposes of the application. mechatlics. the successor employer (purchaser) and the union must go through this process even if there has already been conciliation between the business seller and the union. Accordingly. If a union already represents the buyer's employees. the employer has an obligation to negotiate with the union to attempt to reach a collective agreement. the Board may direct a representation vote to determine which of the two muons will represent the employees. Many of the employees the municipality hired were former employees of the firm the municipality had previously contracted with.and the municipality was bound by the collective agreement. 4. If a strike or lockout is under way at the time of the sale.30 When an application for certification is pending at the time of the sale. In some jurisdictions. When a tulion is certified. Employers and unions should familiarize themselves with and avoid unfair labour practices. Any previous negotiations with the seller of the business do not carry forward to the buyer.even though no money had changed hands. management training. Implications for Practice 1. Tllis would mean that the municipality was a successor employer and was bound by the terms of the collective agreement. Employees join tmions for a number of reasons. The conduct of employers and unions during the organizing campaign and certification process is regulated by labour relations legislation. it is binding upon the successor employer. and complaint mechanisms. the union may give a notice to bargain to the successor employer. we will see that in most jurisdictions there cannot be a strike or lockout until the union and the employer have completed a conciliation or mediation process. When we review the negotiation process in Chapter 8. Certification establishes the union as the exclusive bargai1ling agent for all employees in the bargai1ling unit. The certification of a muon has important consequences for employers and employees. When there is a sale during the negotiation of a collective agreement. and other staff. and changes in the terms of employment must be negotiated with the union. the purchaser will be botmd by any certification order made after the purchase is finalized. varies across jurisdictions. p. 3. p. What is the meaning and significance of the phrase of "business as usual" at the time of a certification application? 12. p. p. Employers must not influence any decertification application made by employees. 115 independent contractor. What are the four things that a union will have to establish when it applies to a labour relations board to be certified? 6. Which of the reasons for employees seeking unionization referred to in this chapter might have led employees in that organization to seek union representation? Were there any other reasons why employees might have tried to unionize? 143 . Outline four employer and two union unfair labour practices during the organizing campaign and certification process. p. 125 statutory freeze. Identify employees who are prevented from unionizing and the reasons for their exclusion. 111 Review Questions 1. 112 organizing conunittee. 118 dependent contractor. Why do some employees want to have a union represent them? 2. Why do unions prefer a process that allows for certification on the basis of membership cards without a representation vote being held? 10. What are the factors considered when the appropriate bargaining unit is determined? 9. 6. Generally a union does not lose its bargaining rights because the employer sells the business. Outline the factors external to the workplace that could affect employees' desire to unionize. What does the phrase "successor rights" refer to and why are successor rights a necessary part of labour relations legislation? Discussion Questions 1. 111 decertification. p. 141 unfair labour practice. Employees have the right to terminate the bargaining rights of their union or replace the union that represents them with another. 112 voluntary recognition agreement. Are employees allowed to sign up their co-workers as union members on the employer's property? 13. p. Who decides what the appropriate bargaining unit is when a union applies for certification and what is the significance of this determination? 8. Why is decertification an important part of labour relations legislation? 15. 113 representation vote. p. Consider a non-union organization that you have worked for in the past or are familiar with. What are the remedies for unfair labour practices during an organizing campaign and certification application? 14. The purchaser is bou nd by any collective agreement. 7. Key Terms certification process. p. 11. 121 orgamzmg campmgn. p. How can the union obtain the right to be the bargaining agent for a group of employees? 5. 130 successor rights. p. Why do some employees oppose unionization of their workplace? 4. p. p.Chapter 6 Collective Bargaining Rights 5. p. 128 union organizer. 114 open period. 115 fourfold test. office. 7. In each case. explain the labour relations policy behind the restrictions on an application for decertification. If the legislature was considering changes to the legislation. explain whether the employer should take the action referred to. What is the significance of the group of employees found to be the appropriate bargaining unit at certification? 4. if anything. For five years. This chapter provided reasons why some employees may not support unionization. and whether the restrictions are too broad or too narrow. 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. b) T he employer is considering a new incentive pay system. There is no interchange of employees between departments. Confirm when labour relations legislation in your province allows employees to make an application for decertification. A union has applied for certification seeking to represent the mechanics and mechanics' helpers in the service department. Confirm whether the labour relations legislation in your province provides for the possibility of certification of a union based on membership cards or requires a representation vote. and the senior management team has approved the system. c) Same situation as in (b). The system has been designed by a consultant. An automotive dealership has four departments: service. what arguments would you make in favour of relying on membership cards instead of requiring a vote? Conversely. What are the arguments for and against the Board having this authority? 8. and they work in the same building that is separate from the auto showroom. Do you agree with the limits that are placed on employer conununication? . and a body repair shop. The employer is considering implementing the changes or taking the steps referred to below.144 Chapter 6 Collective Bargaining Rights 2. No announcements relating to an increase have been made. what arguments would you make in favour of requiring a vote in all applications for certification? 6. however. Would any of these reasons apply to you or your co-workers? Are there any other reasons why you or your co-workers might oppose unionization? 3. What. employees have not yet been informed a bout the system. Do you think that the restrictions on a decertification application are appropriate? T hat is. the consultant has been paid. There is a supervisor for each of the departments. The employees in the service department and body repair department have the same benefits package. sales. should the employer's response be? 5 . a) T he employer is considering the amount that will be paid to employees who use their vehicles in the course of their employment. W eb Research Search the Web for information regarding employer free speech during a union organizing campaign. The mechanics and mechanics' helpers in the service department have a separate incentive compensation system. except that the system was announced to employees two weeks before the application for certification was filed by the union. Consider a non-union organization that you have worked for in the past or are familiar with. An employer has been notified that a union has filed an application for certification for a group of its employees. Confirm whether the Labour Relations Board in your province can certify a union without a vote as a remedy for employer unfair labour practices. Questions 1. the company pres ident sent a letter to all employees. W hen individual employees approached the president and asked him about his thoughts on the situation. All of the company's work comes from non-union general contracto rs. • Certification would mean that the company would be on shaky ground because it wou ld now be competing in a new unionized market. he said that he did not like the IBEW. and stated that the company would have to close its doors if the uni on was certif ied . Shortly after the o rganizing campaign became publ ic knowledge. • The company had never laid people off for more than a few weeks in the past. If any unfair labour practices have been committed. The Internatio nal Brotherhood of Electrical Workers (I BEW) started an organizin g campa ign at Gros Morne. In response to the organizing campaign. the president of the company said at a meeting of employees that he could not compete in a unio n market.Chapter 6 Collective Bargaining Rights 145 Gros Morne Electric Gros Morne El ectric is an electrical contractor that does work in the residential construction industry. w hat remedies could the union pursue and how wou ld it do sol . and the company had been successful with people working together. The company pays wages th at are approximately 20 percent lower than the unio n rate of pay. • The president was pleased that the company was able to report to inquiring banks and mortgage compan ies that employment was full-time and permanent. • Certification of the union would mean that employees would have to pay union dues. • Certification would mean that the company would lose a few good people. making the following points: • Employees and management were part of a team. Has the employer committed any un fair labour practi ces/ 2. The employees did not req uest a wage increase. council did not agree to the wage increase because they thought they knew the views of operators other than M ills on union ization. no further changes were made. Assuming that M ills files a complaint with the Board. Mills and the other two eq uipment operators met with counci l in January.146 Chapter 6 Collective Bargaining Rights Township of Rain Lake The Township of Rain Lake has a population of 20 000. He suggested that the employees allow him to approach counci l members before they proceeded with unionization. Council agreed to increase the guara nteed hours to 115 per month. he is the only equipment operato r w ith two accidents noted in his file. At the February meeting. the supervisor proposed that the Township agree to the guaranteed hours requested by the employees. W hen the superv isor asked why council had done this. and they approached a union about the possibility of o rganizing. Three of the employees. . including John Mills. At the same council meeting a resolution was passed to eliminate one of the equipment operator positions. When the employees' supervisor heard about the meeting.March period. one was opposed. however. Council directed that John M ills be the operator terminated. and one was undecided. more efficient snow plough two years ago. however. The municipal ity has a public works department w ith f ive fulltime employees. the council agreed to change the hours guaranteed. and all five full-time employees were present. The Township was faci ng a deficit. and prov ide a o ne-dollarper-hour wage increase and an improvement in benefits. Mills and two others were in favour. how could the employer respond / 3. The superv isor spoke to several members of council and advised them that the employees were likely going to join the union. Mills has no disciplinary record. M ills had been chosen for termination because of his accident record . Arrangements were made for the superv isor to attend the next council meeti ng in February to address the issue of working conditions for employees. A meeting w ith a union representative was held at the home of John M ills a few days later. They believed the others would not join a union. for M ills to file a complaint with the Labour Relations Board. The town clerk sa id that prior to the February meeting she had checked with the provincial M inistry of Labour and confirmed that there was no requi rement that employees be laid off in order of seni ority. Neither of these accidents involved traffic charges. Outl ine the bas is. Explain the outcome you expect in this case. The other two equipment operators have 10 and 3 years of experience. The Township has employed John Mills for eight years. he convened a meeting of employees at his home. requesting a guarantee of 130 hours per month in the January. and additiona l seasonal employees are hired when required. The uni on representative outlined the advantages of unionizatio n and presented membership cards for signature. 2. Councillors also noted that the muni cipal ity had purchased a new. The council for the municipality meets every January to determine the wages of employees for the year. if any. The three employees were very disappointed w ith council's decision. and costs would have to be cut to avoid a tax increase. he was told there were several reasons. and that the threat to join was a bluff. are equipment operators who do road-grading work in the summer and snow removal in the w inter months. After the superv isor left the meeting. Finally. Questions 1. that other firms in the industry were not unionized. W hen Parker was made a lead hand his hourly rate was increased to $25 per hour. Parker operated with more freedom and authority than the other lead hands. Employees were particularly concerned over the fact that the business agent had resigned and was not replaced for four months. The collective agreement provides a wage schedule for the technicians and lead hands. o n December 20th the meeting at the restaurant went on for two hours. Parker had no previous training o r experience w ith hazardous materials and he was not a union member. Assume that you are an official in the union and you have an opportunity to respond to the decertification application. however. The company hired John Parker as a technician in 200S w ithout contacting the unio n. W hat would your response bel 2. Parker had a socia l connectio n w ith Janice Smith-hi s daughter took music lessons from Sm ith's spouse.Chapter 6 Collective Bargaining Rights 147 Safe Environment Services Safe Enviro nmental Services resolves environmental problems in buildings including asbestos and mould removal. If the union is not able to respond to a request for a technician w ithin 48 hours the agreement allows the employer to proceed to hire someone w ho is not a union member. Subsequently there has been a series of collecti ve agreements between the union and the employer. w hose mai n responsibil ities are schedul ing and onsite inspections. In December 2010. The agreement also conta ins a closed shop provision requiring the empl oyer to hire new techn icians w ho are unio n members through the union's office. however. The company paid several employees more mo ney than the collective agreement required. Canting to see w hat contributions he was w illing to make to a pension plan. On the issue of benefits Parker to ld employees he would investigate an alternative plan w ith an independent firm. He completed the forms w ith a technician w ho also opposed the union using a computer in Canting's office. The company is a privately held corporatio n owned by Rob Canting. Prior to the employees signing the application Parker told the group that no one should feel that they were being forced to sign the application. Sm ith remained in the room w hile the discussion relating to the union took place. The collective agreement required the employer to remit to the union 3 percent of gross wages to f inance the plan. The first meeting was held on December 1Oth when Parker raised the issu e at the end of a meeting that had been set up by Smith to discuss safety issues. Parker only attended one meeting to become a union member after he was told union membership was required. for example. The employee's normal lunch break is 30 minutes long. After he worked for the company for eight months Parker was promoted to a lead hand position. however. the individual hired must join the union. and the problems with benefits. There was extensive discussion in the workplace about the unio n and employees discontent on some issues. Parker and his colleague arranged an employee meeting on December 20th at a restaurant to discuss the decertification and get employees to sign the application. and three lead hands who direct the technicians and complete any paperwork required. At the time of Parker's appointment there was another techni cian with over 20 years experience w ho the employer passed over. Pa rker moved to try to get rid of the union. There was no formal announcement of Parker's appointment as a lead hand and some employees thought that he was a supervisor. The top hourly rate for technicians is $20 per hour and the ho urly rate for lead hands is $23 per hour. Questions 1. Janice Smith. After the December 1Oth meeting Parker obtained the forms necessary to apply for decertification. The business agent for the union held bimonthly unio n meetings. the most recent of w hich ran fro m 2007 through 2010. Parker said that he would check with Mr. The majority of the employees present signed the application for decertification and Parker filed it w ith the Labour Relatio ns Board o ne day later. In 2010 a few employees had problems w ith their benefits because the employer did not remit all of the money it should have to the unio n and also failed to report the names of employees to the union. The company employs 30 technicians w ho do the day-to-day work required. . he was the only lead hand to choose the technicians w ho worked on his projects. The union had a benefit plan that was fi nanced by employer contributions. W hen some employees referred to the possibility of a pensi on o r retirement sav ings plan if the union was decertified. After some discussion w ith employees Parker raised the issue of decertification at two employee meetings. The Safety Technicians Union was certified as the bargaining agent for the technicians and lead hands in 1998. They encouraged employees to attend the meeting by indicating they would pay for their lunch . The collective agreement requires technicians to have at least 6000 hours of work experience before they are el igible to move to the lead hand position. There is o ne supervisor. Explain how you think the Labou r Relations Board w ill dispose of the appl ication for decertificatio n. For example. the Code specifically refers to the possibility of the certification of supervisory employees in section 27(5 ).1 MANAGERIAl EXClUSIONS CA N A DA Section 3(1) excludes individuals who perform management functions. However. The British Columbia L1bour Relations Board applies an " effective determination" test to decide if an individual is performing the functions of a manager. T hose with authority over rates of pay. often used as a determining factor in other jurisdictions. The BCLRB applies a fairly narrow definition to " manager. reported on the attendance or activities of other employees would not be considered a manager unless he or she also decided what the employer's response to misconduct would be. 8 RITI SH CO LU M B lA Section 1(1) of the British Columbia Labour Relations Code provides that a person who performs the functions of a manager or superintendent is not an employee for the purposes of the Code. .6. ALBERTA Section 1(1)(i) excludes individuals who perform management functions . are not considered managers unless they have additional responsibilities. as part of his or her job." generally excluding only employees who are involved in making decisions concerning discipline and discharge. an employee who. In Oakwood Park Lodge." The phrase "managerial functions" is not defined. This could include situations as varied as a research scientist's relationship ro a technician or a master craftsperson dealing with an apprentice. and as a result persons who would be excluded in other jurisdictions. 149 . NEWFOUNDLAND AND LABRADOR Section 2(1) (m) excludes individuals who exercise management functions . 2 The Board has also had to consider the status of persons who. albeit not necessarily within the same bargaining unit 1 as their staff. The Board has excluded those who act in a managerial capacity on a seasonal basis. ONTARIO The definition of employee in Section 1(3)(b) of the Labour Relations Act excludes an employee who "exercises managerial functions . the Board determined that the factor to consider was "those functions which have a direct and provable impact . 5 PRINCE EDWARD ISLAND Section 7(1)(h) excludes individuals who exercise management functions. including persons who hire and fire. are asked to act in a supervisory role towards others. Employees will be found to be exercising managerial functions in two situations: (1) where they are involved in independent decision-making responsibilities in matters of policy or the running of the organization and (2) where they have the authority to make effective recommendations relating to conditions of employment. education.4 but has not excluded those who have an ownership stake in the enterprise. T he Board also has the authority to classify individuals as employees. upon the terms and conditions of employment" 3 of those other employees. training or experience. SASKATCHEWAN Section 2(f)(i)(A) excludes individuals whose primary responsibility is to actually exercise authority and actually perform management functions . due to their skill. NEW B RUNSWICK Section 1(1) excludes individuals who exercise management functions.Chapter 6 Collective Bargaining Rights Appendices MANITOBA Section 1 provides that the employee must "primarily" perform management functions to be excluded.. NOVA SCOTIA Section 2(2) (a) excludes individuals who exercise management functions. have been allowed to organize and bargain collectively.. engineering. and domestics employed in a private home are excluded. . NOVA SCOTIA Professionals in the architectural. ALBERTA Professionals in the architectural. NEWFOUNDLAND AND LABRADOR T he Act does not contain any occupational exclusions. dental. engineering. legal. NEW BRUNSWICK Professionals in the architectural. MANITOBA T he Act does not contain any occupational exclusions. and medical fields employed in their professional capacity are excluded. and domestics employed in a private home are excluded.2 Collective Bargaining Rights Appendices OCCUPATIONAl EXClUSIONS CANADA T he Code does not contain any occupational exclusions. agricultural employees. dental. land surveying. SASKATCHEWAN T he A ct does not contain any occupational exclusions. ONTARIO Professionals in architectural. and medical fields employed in their professional capacity. dental. legal. legal. 8 RITISH COLUMB lA T he Code does not contain any occupational exclusions. and medical fields employed in their professional capacity. and medical fields employed in their professional capacity are excluded. dental. and medical fields employed in their professional capacity. PRINCE EDWARD ISLAND Professionals in the architectural. legal.150 Cha pter 6 6. dental. legal. engineering. and domestics employed in a private home are excluded. engineering. supervisors. T he Board's normal practice is to have separate bargaining units for production and office employees. ALBERTA A bargaining unit must have at least two employees. NEW BRUNSWICK A bargaining unit must have at least two employees. and dependent contractors can be included in units with other employees. The Board does not generally establish separate bargaining units for full-time and part-time employees." This has meant that the Board must find that there are e. this is subject to the requirement that the unit" . Section 28 requires the Board to consider whether the inclusion of dependent contractors with other employees would be more appropriate for collective bargaining and. The Code allows for a bargaining unit to have only one employee..3 Collective Bargaining Rights Appendices APPROPRIATE BARGAINING UNIT CANADA A bargaining unit must have at least two employees. there have been exceptions. howeveJ. providing that supervisors who do not perform as managers may form their own bargaining unit or may be included in another tmit. if so.<\!though the Code provides for the establishment of separate craft units in section 21. 29) The Board's approach to standard bargaining tmits has been different from that in other jurisdictions.. or a separate bargaining unit can be established. The Board has not established separate bargaining tmits for part-time and full-time employees. Professional employees. BRITISH COLUMB lA The Code contains few provisions that restrict the Board's determination of the appropriate bargaining unit. AU firefighters of an employer must be included in one bargaining unit. vary the existing certification to include the dependent contractors. is otherwise appropriate for collective bargaining. (s.:xceptional circumstances in order to determine that it should establish a separate craft unit instead of following its general policy favouring all-employee units. The Board has indicated that it will vary from its general practice of certifying aU employee units and certify smaller units in sectors of the economy that have been hard to organize in the past. In the agricultural industry. The Code specifically refers to supervisors. The Board cannot include professional employees practicing a profession with employees in another unit unless it is satisfied that a majority of the professional employees wish to be included in the unit. a unit must have at least five employees.Chapter 6 6. . A bargaining unit consisting solely of professionals 151 . TI1e Code's provisions relating to dependent contractors also favour the inclusion of dependent contractors in a bargaining unit with other employees instead of establishing a separate unit. MANITOBA The Act allows for a bargaining unit to have only one employee. The Board has not assumed that production and white-collar employees should be in separate bargaining units and has established more "all-employee" bargaining units. and may include in the unit employees who do work that in the opinion of the Board is closely related to the work of the professional employees in the unit. This allows for the continuation of previously established craft units. Section 9(3) requires the Board to establish a separate craft bargaining unit where a group of employees and the union applying for certification meet specified criteria. and ca nnot apply if there was a previous certification order or voluntary recognition at one of the locations. but the Board may include members of a profession in a unit with other employees only if it is satisfied that is the wish of the majority of the professional employees.. but makes it difficult to carve out a new one. hours of work. security guards had to be in a separate bargaining unit and represented by a different . Where the Board considers it desirable to do so. The issue of security guards has received special attention because of concern about a conflict of interest if security guards are included in a bargaining unit with other employees. unless the Board finds that a majority of them wish to be included in a bargaining tmit with other employees. " Section 24(1) provides that " where a group of employees of an employer belong to a craft or group exercising technical skills by reason of which they are distinguishable from the employees as a whole and the majority of the group are members of one trade union pertaining to that craft or other skills. An employer can apply to the Board for an order that the appropriate bargaining unit consists of all employees at such locations. be formed into a unit restricted to members of one profession and employees who do work closely related to the work of those professional employees. if the group is otherwise appropriate as a unit for collective bargaining.. on the request of the majority of them. N EWF O U N DLAN D AND LABRADOR A bargaining unit must have at least two employees. The employer must apply within one year of the start of production at the second location. The Board may find a unit of professional employees of one or more professions appropriate. At one time. NOVA SCO TIA A bargaining unit must have at least two employees. Professional engineers and dependant contractors are allowed to form their own bargaining units. professional employees may. may be certified as the bargaining agent of the employees in the group. 25(14): "The Board in determining the appropriate unit shall have regard to the community of interest among the employees in the proposed unit in such matters as work location. The act specifically refers to the community of interest of employees as follows ins. Dependent contractors can be included in a unit with other employees. Where the application for certification relates to an offshore petroleum production platform. A bargaining unit must have more than one employee.152 Chapter 6 Collective Bargaining Rights Appendices is appropriate for collective bargaining. the unit must comprise aU the employees employed on the platform except those employees the Board determines are employed in construction and start-up on the platform. the trade union may apply to the Board and . ONTARIO T he Act contains specific provisions that affect the determination of an appropriate bargaining unit." The Act has special provisions relating to employers engaged in manufacturing at two or more interdependent locations. working conditions and methods of remuneration. If the employer has only one location in a municipality. The Board now finds that a unit including both full. the union continues to hold the right to represent employees. but if the guards perform a security function in regards to the other employees. however. the second location will automatically be covered by the certification. This also means that if the employer establishes a second location in the same municipality. the Board generally views each location as an appropriate bargaining unit unless there is an interchange of employees between the locations. and technical employees are put in bargaining units separate from production employees. T he Board generally establishes a separate bargaining unit for blue. clerical. separate bargaining units were established for part-time and full-time employees. SAS KATC HE WA N A bargaining unit must have more than one employee. Generally.and whitecollar employees: office. 153 . if the guards are present to protect the employer's property from the public.4 CERTIFICATION PRO CEDURE CANADA Sections 24-36 of the Canada Labour Code. At one time.and part-time employees is appropriate in most cases. Part I set out provisions relating to the certification of unions in federally regulated workplaces.Chapter 6 Collective Bargaining Rights Appendices union than other employees. and the employees there will not have an opportunity to choose the union they wish. The union files an application for certification with the Canada Labour Relations Board for a unit it considers appropriate for collective bargaining. the Board refers to particular municipalities as the geographical location of the bargaining unit. Currently the Act provides that any union can apply to represent security guards and the guards can be in a unit with other employees. the Board's practice is to establish the bargaining unit as the employer's operations within the municipality meaning that if the employer moves within the municipality. If the employer objects the onus is on the union to establish that there is no conflict of interest. the Board will find that a conflict exists and can require a separate bargaining unit. the employer is given an opportunity to object that there is a conflict of interest. Where the employer has two or more locations within a municipality. 6 . TI1e Canada Industrial Relations Board has published information circulars that outline Board activities. Part-time employees are defined by the OLRB as persons not working more than 24 hours per week. The information circular relating to applications for certification provides a summary of the process and it is reconunended. 1. Support for the union is determined as of the date of the application. including the certification of unions. Except in the construction industry. PRIN CE ED WA RD I SLA N D A bargaining unit must have more than one employee. there is no conflict of interest. T he Canada Industrial Relations Board regulations made pursuant to the Code provide rules relating to applications to the Board. The officer obtains a complete list of employees for the Board to use later when determining how many employees are in the appropriate unit and who should be on any voters' list. In most cases. 6. and schedules a hearing. The employer must file a response to the application within 10 days after it receives a copy. 3. or excluded from. Employees are notified by a " N otice to Employers and Employees" posted at the work site. and union discuss the persons they believe are included in. 2 . The Board has also provided information bulletins that contain commentary on processing applications. 1. The evidence can be in the form of membership evidence or a petition supporting the application. The Board notifies the employer. Membership applications must be no more than 90 days old when the certification application is filed. The Board gives notice to the employer and requires the employer to post a notice of the application to employees. At the end of the investigation. Membership evidence can be copies of completed membership cards along with proof of payment of a sum of not less than $2. and that the application is timely and has the necessary level of employee support. A Board officer attempts to resolve any outstanding issues. 4. Rules of Procedure and Voting Rules are also available. T he information bulletin regarding certification provides a summary of the process. 5 . the unit. Petition evidence and membership evidence cannot be combined. A complete application for certification includes: a completed application form signed on behalf of the union. employees. the role of settlement officers. and evidence of 40 percent support in the unit applied for. The Board officer investigates to ensure that the group of employees is a unit that is appropriate for collective bargaining. T he employer must include a list of names of employees in the bargauung unit in its response. Signatures collected more than 90 days before the date of the certification application will not be counted. it may be conducted by video or teleconference. and it is recommended. and other affected persons of the application. TI1e notice tells employees about the procedures and time limits for filing objections and the possibility of cancelling the hearing if no one objects to the application. employer. the officer completes a report and gives it to all the parties. T he union files a certification application with the Labour Relations Board. board hearings. a declaration by a union organizer. During the investigation. The officer reviews the employer's records. including the appropriate bargaining unit.154 Chapter 6 Collective Bargaining Rights Appendices 2 . and other issues. an officer will determine who can provide the necessary information for the report and will usu ally attempt to speak to one person on behalf of each party. The . T he Board has published a general Guide to Alberta's Labour Laws. If a hearing is required. and/or copies of documents usually kept by the union showing membership in good standing. A pre-hearing conference to settle any outstanding issues may be conducted by conference call. 3. ALBERTA Sections 32-41 of the Labour Relations Code set out provisions relating to the certification of unions. TI1e officer. A Board officer notifies the employer by phone and in writing. the board can determine the issues of the appropriate bargaining unit and support for the union on the basis of the officer's report and submissions of the patties. T he Board normally orders the vote once it is satisfied that the union has 40 percent support in the unit applied for. at least 45 percent of the employees in the unit are members in good standing of the trade 155 . 2. the bargaining unit description. before certification. A union that claims to have as members in good standing not less than 45 percent of the employees in a unit considered appropriate for collective bargaining may apply to the Labour Relations Board for certification. 5. The act provides that the vote is to be held as soon as possible after the application. T he Board must determine if the unit is appropriate for collective bargaining and may. A vote is conducted at the workplace. If no objections are received one full business day before the hearing. on the hearing date the Board will usually rely on the facts set out in the officer's report unless a party objecting to the report presents additional evidence. T he officer discusses the voting arrangements with the parties. If a majority of employees voting choose the union. 4. An employee or group of employees objecting to the application must file their objections at least one full business day before the hearing. The Board must make the examination of records and other inquiries including the holding of hearings it considers necessary to determine the merits of an application for certification. and the date of certification. 8. T he minimum criteria for establishing membership in good standing in a union are a membership card signed and dated at the time of signature. the Board then issues a certificate that includes the proper name of the trade union and employer. 7. The regulations and the Board's Rules provide details relating to an application for certification.Chapter 6 Collective Bargaining Rights Appendices employee list in the report will include persons employed in the bargaining unit applied for. 3. The certification procedure in Alberta has distinctive features: • no application may be made until 60 days after the union has filed its constitution and bylaws with the Board unless the Board gives its consent • support for the union may be established by a petition instead of membership evidence BRITI SH COLU M B lA Sections 18-32 of the Labour Relations Code set out provisions relating to the certification of unions. but will not show if they supported the application. the officer notifies the employer and the trade union(s). Any parties may object to some or all of the contents of the report. include additional employees or exclude employees from the unit. 4. or active membership that has been maintained by dues payments within 90 days prior to the application for certification. If objections are filed. 1. If the Board is satisfied that on the date it receives the application. If there are no disputed ballots. the Returning Officer counts the ballots and advises the employees of the results. The officer prepares a N otice of Vote and arranges for its posting at the work site. Evidence of union membership occurring in the threemonth period prior to the date of the application for certification will be accepted by the LRB. The Board has published a Guide to the Labour Relations Code that contains a chapter on the certification process. 6. 2 .1 of the Labour Relations Act set out provisions relating to the certification of unions. In any certification application. The Board must be satisfied that the employees were not subject to inti1nidation. or threat. the Board may. After a representation vote is taken. and the unit is appropriate for collective bargaining. the Board determines the wishes of the employees in the tmit. If it is demonstrated that 65 percent or more of the employees in the proposed unit wish to have the union represent them as their bargaining agent. . the Board certifies the union without a vote. Where a union applies for certification to represem employees in a proposed unit and the Board is satisfied upon a preli1ninary examination of the material filed that the matters stated in support of the application are substantially true. In deciding if a unit is appropriate for collective bargaining. separate the w1it into two or more units. the Board dismisses the application. 5 . T he Board has also published information bulletins and a Guide to the Labour Relations Act. Evidence that an employee is a member of a union at the date of filing of the application for certification is conclusive evidence of the employee's wish to have the union represent him or her. the Board shall not include professional employees practicing a profession in a unit with other employees unless it is satisfied that a majority of professional employees wish to be included in the unit. Following the determination of the appropriate unit for collective bargaining. the Board may alter the description of the unit. MANITOBA Sections 34-48. order that a representation vote be taken. 5. A mandatory representation vote must be conducted within 10 days from the date the Board receives the application for certification or. add additional classes of employees. and that their wishes for union representation were freely expressed. If no collective agreement exists and no bargaining agent has been certified to represent the employees in the unit. the Board must certify the trade union as the bargaining agent for the unit. coercion. The vote must be held within seven days after the application for certification is filed with the Board. if the Board is satisfied that the majority of votes favour representation by the trade union.156 Chapter 6 Collective Bargaining Rights Appendices union. However. in order to satisfy itself as to the wishes of the employees. A union seeking to be certified as the bargaining agent for employees in a unit appropriate for collective bargaining may apply to the Board for certification. within a longer period the Board orders. 1. the Board conducts a representation vote among the employees in the proposed unit. the Board must order that a representation vote be taken among the employees in that unit. the Board determines whether the proposed unit is appropriate for collective bargaining. If it is shown that at least 40 percent but fewer than 65 percent of the employees in the proposed unit wish to have the union represent them as their bargaining agent. or take whatever steps it deems appropriate to determine the wishes of the employees. The Board may direct that another representation vote be conducted if less than 55 percent of the employees in the unit cast ballots. 3. fraud. if the vote is to be conducted by mail. exclude classes of employees. 4. The Board's Rules of Procedure include requirements relating to applications for certification. Where fewer than 40 percent of the employees in the proposed unit wish to have the union represent them as their bargaining agent. an application may be brought at any time. The Board's Rules of Procedure provide detailed information relating to an application for certification. 157 . T he terminal date is the deadline for the filing of all relevant documentation. Support for the union is determined as of the date of the application. If the Board is satisfied that more than 60 percent of the employees in the bargaining unit are members of the union. The union files an application for certification with the Labour Relations Board for a unit it considers appropriate for collective bargaining. If a vote is held and the result indicates that the majority of employees in the unit who voted wish the applicant union to represent them as their bargaining agent. NEW BRUNSWICK Sections 10-22 of the Industrial Relations Act set out provisions relating to the certification of unions. 2. Employees who are in attendance on the day of the vote are eligible to vote. T he Board determines a voting constituency from the records of the union and the employer. T his is different from many jurisdictions in which the union must obtain only a majority of the votes actually cast. If it appears that at least 40 percent of employees in the voting constituency were members of the trade union. A Board officer is appointed to the file. The union files an application for certification with the Industrial Relations Board for a unit it considers appropriate for collective bargaining. NEWFOUNDLAND AND LABRADOR Sections 36-50 of the Labour Relations Act set out provisions relating to the certification of unions. the union may request a pre-hearing vote. 3. 2. The officer investigates the application and prepares a report that is provided to the parties for conunent. The Board determines the appropriate bargaining unit and the number of employees in the unit who are members of the union. The Board directs a vote if 40 to 60 percent of employees in the bargaining unit are members of the union. the union is certified. The Board's Rules of Procedure provide detailed information relating to an application for certification. The officer arranges for a vote to be taken unless the parties agree in writing that no vote is necessary. Accordingly. and the employer is notified. T he ballots are counted after the parties have been given an opportunity to present evidence and make representations to the Board. the Board certifies the union. including reply documents and all membership evidence. 1. the union must obtain the support of a majority of employees who are in attendance on the day of the vote. The Board also provides policy circulars and information bulletins.Chapter 6 Collective Bargaining Rights Appendices 6. the Board may direct a representation vote among employees in the voting constituency. On an application for certification. The Board fixes a terminal date for the application thar is 5 to 12 days after notification of the application is sent to the employer. 1. 4. The ballots cast in the prehearing vote will be sealed and will be counted after the parties have been heard by the Board. T he pre-hearing vote is a way to determine the wishes of employees before they can be influenced by the employer. or more than 50 percent of those eligible to vote cast ballots in favour of the union. 8.158 Chapter 6 Collective Bargaining Rights Appendices 3. the Board may order that the ballots be counted. the Board determines the outstanding issues related to the application. Unless the Board determines that further investigation is required. During the voting process. \Vhere it considers it relevant. the Board may determine other issues raised by the parties such as inclusions in or exclusions from the unit. the replies to the Officer's report. 1. NOVA SCO TIA Sections 23-27 of the Trade Union Act set out provisions relating to the certification of unions. they have two working days to reply to it. or disputed ballots. unless there are exceptional circumstances. The union files an application for certification with the Labour Relations Board for a unit it considers appropriate for collective bargaining." 6. union. The segregation process is discussed in the Policy circular titled " Procedure for Secret Ballot Votes. the officer segregates any ballots in dispute. T he voters' list is prepared by the officer and includes the names of employees whose ballots may be disputed by either party. the success of the application depends on the results of the vote. The regulations made pursuant to the Trade Union Act provide more detailed rules relating to applications for certification and other applications to the Board. The officer. including time bars and secret ballot votes. The Board determines whether or not the unit is appropriate for collective bargaining. the Officer's report. and after hearing evidence and argument from the parties. After the vote has been conducted and the reply and response filed by the parties. T he Board has published Procedural and Policy Statements that include information relating to certification. and employer discuss the persons they believe should be included or excluded from the unit for the purpose of preparing a voters' list. The officer obtains a complete list of employees and supplies it to the union. whether the union has the support of a majority of the employees in the appropriate bargaining unit • the positions of the parties on any disputed ballot or dispute over inclusions or exclusions of positions and • a discussion of any outstanding issues raised by the p-arties during the investigation 7. the Board will assess whether or not a hearing is required before making a decision. TI1e key feature of the process is that a vote is held within five days of the application and any outstanding issues are resolved after the vote is taken. If a vote has been taken and the union has employee support in excess of 40 percent of the appropriate bargaining unit. and if no issues prevent the processing of the certification application. the replies filed. and other relevant docu ments. whether the union has met the 40 percent support level required to have the vote counted • if no vote is conducted. 5. If the Board determines that a hearing is necessary. the officer completes the investigation and prepares a report that is given to the parties. The application must . The report includes: • a sununary of the views of the parties on the appropriate bargaining unit • a calculation of the level of employee support. 4. The Board meets to review the file that includes the application. a hearing date will be set. Scrutineers may be present representing the union and the employer. A secret ballot vote is conducted by the officer within five working days of the Board's receipt of the application. The Board may delay the vote if it decides that further investigation is required. 2. Subsequently only the votes of employees determined by the Board to be properly in the unit will be counted. A secret ballot vote is conducted by a Board officer. T he Certification Package that the union sends out is described in the Ontario Labour Relations Board's (OLRB) Information Bulletin #1. T he certification process is illustrated in Figure A. The employer and any other union that may be representing some or all of the affected workers make their response to the OLRB within two days of the 159 . Information Bulletins and the Board's Rules of Procedure that provide details regarding the certification process including the application. 4. 3. When the ballot box is opened. the Board directs a vote. and it contains the information needed for the other parties to prepare their responses to the application. If the Board determines that a unit of employees is appropriate for collective bargaining. the cer- tification process in Ontario begins with the union sending both the employer and any current union(s) notification of the application. and votes are available at the Board's website. The ballot box will again be opened and the folded ballots removed from the plain envelope and returned to the ballot box. The remaining ballot. 1. they will be folded and placed in an unmarked envelope and that envelope will be placed in a second envelope marked with the name of the individual. supported by their membership cards and dues receipts. 3. T he Board notifies the employer. the employer's reply. and a list of employees applied for who are members in good standing of the union. 2. the vote is conducted no more than five working days after the Board receives the application and three working days after the Board's notices are received by the employer. The employer is required to provide a list of employees to the Board. The ballot box is sealed and returned to the Labour Relations Board. Any ballots that are not in dispute will be folded and placed in the ballot box. and direct the employer to post a N otice to Employees in the workplace informing them that a vote will likely be held and that they are invited to make submissions to the Board. rules and by-laws of the union. and a notice to employees is posted in the workplace. the envelope for any employee excluded by the Board's decision will be immediately destroyed and not opened. The union then makes its application to the OLRB. and the Board is satisfied that at the date of the filing of the application for certification the applicant trade union had as members 40 per cent or more of the employees in the unit. With the exception of the construction industry (which has its own rules). which includes membership evidence (usually membership cards that have been signed by the employees and dated) and an estimate of the number of employees in the bargaining unit being applied for. If any ballots are in dispute.s will then have the omside envelope containing the name removed and the inner plain. 4.Chapter 6 Collective Bargaining Rights Appendices include a copy of the constitution. T he ballot box will be opened once again and the ballots counted. The OLRB will contact all the parties to ensure that the notification has occurred. ONTARIO Sections 7-15 of the Labour Relations Act set out provisions relating to the certifi<=<1tion of unions. unmarked envelope put back into the ballot box. N ormally. Vote held application being filed. the Board will normally order that a secret ballot vote be held at the workplace within five days of the filing of the application. The officer will attempt to resolve any outstanding issues (which may include unfair labour practice complainrs) with the parties both before and afrer the vote. the votes may or may nor be counted withour a hearing. have their votes segregated by being placed in double envelopes with their names on the outside. Response by Employer (and other union) 5. A challenge under section 8. are entitled ro make represenrations to the OLRB following the vote. If they are later determined to be entitled to vote.. Notification of Employer (and other union) by U nion 2. and list(s) of the employees who would be included in the possible bargaining unit(s).. The employer will also have to decide if it is challenging the Un ion's application under section 8.1 of the Ontario Labour Relations Act.160 Chapter 6 Collective Bargaining Rights Appendices FIGURE A Certification Process in Ontario 1. Board Officer tries to resolve outstanding issues 6. O LRB determines Union support.1 may change this. and the Board has the discretion to change this timeline as necessary. the outer envelope is opened and the sealed tuunarked envelope inside is added to the ballot box. O LRB contacts parties. If that condition is met. Depending on the success of tllis process. 5. I---'. any alternative bargaining unit that is being proposed. 6. the OLRB will determine if it appears that the union has the support of at least 40 percent of the employees in rhe bargaining unit being proposed. including those not appearing on the list. Application to 1----'. including individual employees. voters' list..1 OLRB by Union 3. Voters whose status as members of the bargaining unit is in doubt. the implications of which will be discussed later. All parties.I directs Employer to post Notice 4.. The Board will set the voting list that includes aU persons who might be enritled to vote. 1995. Certificate awarded or application dismissed 8. and orders vote 9... Hearing held to resolve outstanding ISSUeS 7 . The OLRB appoints a Board Officer to oversee the voting process. . Based only on the information provided to it by the union. The employer's response will normally include information on the actual number of employees in the bargaining unit proposed by the union. including reply documents. section 8.1 The determination of the union's support is based only on evidence provided by the union. and remove the possibility of a union being certified without having met the requirement of demonstrating 40 percent support in the proposed bargaining unit. T he regulations provide detailed requirements for an application and any reply from the employer. A terminal date is set and the employer is notified about the application. The terminal date is the deadline for the filing of all relevant documentation. The terminal date is usually 21 days after notice of the application is mailed to the employer for posting in the workplace. If the OLRB determines that the union did not demonstrate 40 percent support in a unit that could be appropriate for bargaining. 1. It is possible that the votes will not be counted until after the Board issues its decision. the application is dismissed. The employer is required to post a notice about the application and must reply before the terminal date. the OLRB will normally allow the vote to proceed. the OLRB will grant a certificate to the union. and this could lead to a situation where the union applies for certification underestimating the number of employees in the bargaining unit or proposing a bargaining unit that is inappropriate. and counter-petitions. If more than 50 percent of the ballots are in favour of the union. There have been cases where the votes have been counted.Chapter 6 Collective Bargaining Rights Appendices 7. The union files an application for certification with the Labour Relations Board for a unit it considers appropriate for collective bargaining. but certification requires a vote (except in the construction industry) • a fast-track process (vote usually held within five days of the application) where issues such as the status of employees are resolved after the vote is held • support required to obtain a vote is 40 percent of unit proposed by union • support required to win vote is a majority of the votes cast by the employees in the bargaining unit PRINCE EDWARD ISLAND Sections 12-18 of the Labour Act set out provisions relating to the certification of unions. but the dismissal is not a bar to the union making another application. petitions/statements of desire. 3. T he key features of the Ontario process are: • a mandatory vote as opposed to certification by membership cards. T he reply must include a proposed bargaining unit 161 . but will order that the ballot boxes be sealed (unless the employer and the union agree to have the votes counted) until after a hearing. but the OLRB has dismissed the application because the union did not demonstrate that it had the necessary 40 percent support of the employees in the bargaining unit for which it applied. and the union has garnered over 50 percent support in the bargaining unit. If agreement cannot be reached. Section 8. all membership evidence. Information relating to the certification of unions is available on the Web. When an objection under this section is filed. a hearing before the OLRB will be scheduled for four weeks after the vote. As a response to these concerns.the cards are used to qualify for a representation vote. 2.1 was added ro the legislation in 1998 allowing an employer the opportunity to object to the union's estimate of the number of employees and provide the Board with evidence as to the actual numbers. 5. The Board detennines the level of support by comparing the number of employees in the bargai1ling unit on the date of application with the number of employees who were members in good standing in the trade union on the terminal date. certify the trade union. Employees may withdraw their previous support for the union by filing a statement of desire or petition before the terminal date. The ballots are counted after the parties have been given an opportunity to present evidence and make representations to the Board. The pre-hearing vote is a way to determine the wishes of employees before they can be influenced by the employer. if different from the union's. Each employee is asked to sign the statement of employment so that his or her signature can be compared with the signatures on the membership cards filed to support the application. which is a list of employees and their positions. along with a letter instructing the employer to prepare a statement of employment. 1. T here are distinctive feawres of the certification procedure in Prince Edward Island: • support for the union is determined as of the terminal date as opposed to the date of application • a pre-hearing vote is available as an alternative SA SKAT C HEWAN Sections 5-10. the employer may be allowed to send TDl forms to capture employee signawres. T he Board sends a copy of the application to the employer. or order a representation vote to detennine the wishes of the employees in the bargaining tulit. Regulations and forms relating to issues that come before the Board are available on the Web. 4. If necessary. After reviewing the reply and based upon the level of membership support for the trade union among employees in the bargaining unit. the Board will make a determination on whether to dismiss the application. the union may request a pre-hearing vote. If in the reply document the employer proposes a bargaining unit different than the one proposed by the applicant. Union membership cards must be signed within 90 days of the application. The trade union is entitled to have a representative present when the signatures are obtained. The union files an application for certification with the Labour Relations Board for a unit it considers appropriate for collective bargaining. and a complete list of all employees in the bargaining unit as proposed by the applicant. The ballots cast in the pre-hearing vote will be sealed and will be counted after the Board has heard from the parties. 6.162 Chapter 6 Collective Bargaining Rights Appendices description. In large workplaces. the employer must show the name and classification of any person he proposes to exclude from the bargaining unit. the Board holds hearing. Support for the union is determined as of the date of the application. If the employer disputes whether the bargaining unit t hat has . There is also a list of Board publications and policies that includes some items relating to certification. On an application for certification. 2 . as well as the name and classification of any person he proposes should be added. The Board determines a voting constituency from the records of the union and the employer.1 of the Trade Union Act set out provisions relating to the certification of unions. as well as their classification. The Board has published information relating to the certification process. the issue is determined by the majority of the votes cast. the Act provides in section 29(a) that the Board may order a decertification vote if a "significant number" of union members allege that the union is not adequately fulfilling its responsibilities. 3. On a representation vote.5 DECERTIFICATION PROCEDURE CANADA In the federal jurisdiction. H owever. there is an additional basis. there is a unique restriction on an application for decertification where a collective agreement has not been negotiated. it must file a reply listing their reasons for objecting.Chapter 6 Collective Bargaining Rights Appendices been proposed is appropriate. tlus provision appears to allow for a decertification vote on an application supported by something less than a majority of employees. a majority of employees eligible to vote constitute a quorum.unique to that province-upon which the Board may order a decertification vote. T his provision appears to be aimed at ensuring that the employer does not encourage an application for decertification by failing to negotiate. it may not be granted if the union can establish that it has made reasonable efforts to reach an agreement. 163 . the Board may dismiss the application without a vote if it is satisfied that the union made rea sonable efforts to reach an agreement. and if a majority of those eligible to vote actually vote. Section 39(2) of the Code provides that a decertification order cannot be made unless the Board is satisfied that the union has failed to make reasonable efforts to reach an agreement. there is a restriction on the decertification process that is not found in any other jurisdiction. MANITOBA In Manitoba. Accordingly. even though a majority of employees may have supp orted the application for decertification. It is not clear what a significanr number is. but no agreement was reached because the employer failed to do so. the Board directs a representation vote. If the application establishes that 45 percent or more of employees in the bargaining unit support the application. Section 50(4) of the Act provides that even if 50 percent or more of the employees in the unit support a decertification application. In addition to ordering a vote if it appears that the union no longer has the support of a majority of employees. or whether certain employees should be excluded from the bargaining unit. NOVA SCOTIA In Nova Scotia. 6. T he distinctive feature of the certification procedure in Saskatchewan is a 2008 change from certification based on union membership cards to a mandatory representation vote. its existence can determine the legality or illegality of various activities engaged in by an employer.110. 96. a trade union. application or administration be resolved by binding arbitration. 110. 1 -George W. 99. 100. it requires that any disputes as to its interpretation. 102. 96. it sets out the terms and conditions of employment for a specific time period.The collective agreement is the cornerstone of our l. 101 2. Describe the significance of terms commonly found in a colledive agreement 56. 113. 118 5 . or employees. Summarize the importance of colledive agreements 3. Explain the effect a collective agreement could have on human resource management 3. 112 . Identify the collective agreement terms that labour relations legislation requires 29. 3. it serves as a bar to either the termination or transfer of these rights. List the preferences of unions and employers for various colledive agreement terms 114. It evidences bargaining rights. Adams 1. and. 113 4.abour relations system. The management rights article had to be interpreted in conjunction with the terms specific to a layoff that referred to a lack of work. length. that may not be the case depending upon the terms of a collective agreement. collective agreements in education might contain restrictions on student-teacher ratios. However. and complexity. Management rights: "The unio n furthe r recognizes the right of the employer to operate and ma nage the home for the aged in all respects in accordance with its commitments and obligations and responsibilities.Chapter 7 The Collective Agreement It appears logical that an employer facing economic problems should be able to lay off employees. The right to decide on the number of employees needed at any ti me. T here are thousands of Canadian collective agreements. Union security provisions in the contract. T his chapter reviews the terms commonly found in a collective agreement and discusses employer and union preferences for the agreement. the employer laid off 19 employees. A lberta Union of Provincial E111J) Ioyees : www . the collective agreement deals with the crucial matter of wages and benefits. This incident illustrates how the terms of a collective agreement could be criti cal to the employer. Wage and benefit provisions affect the employer's compensation costs. Collective agreements are not confidential documents: most jurisdictions require a copy to be filed with the ministry responsible for labour issues. and the union. The County of Huron in Ontario operates homes for the aged that are partially funded by the provincial govern ment." 165 After funding cuts by the provincial government. affecting the quality of education.lrb . Employees at the ho mes are represented by the Service Employees International Un ion. all the employees were retu rned to their jobs with compensation.org/ collective_agreements Website for Negotech: http :j/ 206. 191 .shtml . are vital. machinery and equ ipment . Refer to one of the websites mentioned in the margin for an example of a collective agreement. provisions that might limit contracting out or technological change can affect the employees' job security.bc . The collective agreement between the uni o n a nd the employer contained the following te rm s relating to ma nageme nt rights and layoffs.ca/ cas. For employees. employees. T he union's rights to continue to represent employees and its influence are affected by the contents of the agreement. The arbitrator sympathized with th e employer's economic situation but noted that the employer's economic problem did not rel ieve it from its responsibilities under the collective agreement. Seniority provisions may impose constraints on layoffs and promotions. IMPORTANCE OF COLLECTIVE AGREEMENTS The collective agreement is critically important to the employer. are solely and exclusively the responsibility of the e mployer. As a result. In addition. T he union is protected from a raid by another union or a decertification application by employees for most of the term of a collective agreement. and they vary in their terms. A collective agreement might also impact the public by affecting the cost and availability of services. the right to use modern methods. as the following situation illustrates. HRSDC provides collective agreements in a database called Negotech that is accessible on the Web. T he employer's control over the workplace and profitability will be affected by its contents. the union. T he grievance and arbitration process could lead to the review and reversal of management decisions such as the termination of an employee. For example.'' Layoff: "Layoff shall mean the discontinuation of a pos ition(s) due to lack of work. The issue went to an arbitrator who upheld the grievance finding that the layoffs were the result of the government funding cutbacks and not due to a lack of work. The union filed a grievance alleging that the layoffs were a contravention of the collective agreement because they were not d ue to a lack of work. based on a number of factors including the industry and the employees covered. which may require membership and the payment of dues by employees. employees. and the public. Websites for collective agreements: British Columbia Labour Relations Board: www.au pe. Some government ministries and unions are making collective agreements available on the Web.16.137/gol/main_e... As each of the terms most commonly found in collective agreements is considered here. and discussed in the next section. and labour relations legislation. Bargaining unit work Strikes and lockouts Duration or term of agreement Unio n security Management rights Contracting out Discipline and discharge procedure Discrimination Seniority 12. In the public sector. and other human resource management activities. however. In some jurisdictions. Labour relations legislation provides that a few terms must be included in collective agreements. Labour relations legislation requires the contract to include the following mandatory terms. 5. Voluntary terms are provisions that the parties agree to include but are not required by legislation. training. 15. 19.166 Chapter 7 T he Collective Agreement L EGA L R EQU IR EM EN T S FO R CO LL EC TI VE A G REEME N TS Collective agreements must comply with employment standards. 11. A distinction can be drawn between mandatory and voluntary terms in a collective agreement. Mandatory tenus are provisions that must be included because they are required by legislation. 8. Recognition 2. human rights. 20. 10. 16. the parties can include any additional voluntary terms in a collective agreement that do not violate the law. and these are discussed in Chapter 11. 6. Wages Holidays Vacations Benefits Hours of work and sched uling Overtime Technological ch ange Leave Union business . The terms or clauses in a collective agreement are referred to as articles. the governing legislation may provide that there are some issues or terms of employment that cannot be included in collective agreements. which are discussed below: • 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 Arti cles are the terms or clauses in a collective agreement. they are not required by legislation. The articles most conunonly found in collective agreements are listed in Figure 7-1. the parties must include a term that provides that the employer recognizes the union as the bargaining agent for employees specified in the bargaining unit. 14. Vol untary terms are provisions that the parties agree to include in the collective agreement. CO LL ECT I VE AG REEMENT T ERMS A collective agreement will have major implications for human resources management in an organization. In the private sect01. compensation. fiGURE 7-1 Collective Agreement Terms 1. 17. Grieva nce and arbitrati on process 3. 21. selection. 4. MANDATORY AND VOLUNTARY TERMS Manda tory terms are provisions that must be included in collective agreements because they are required by legislation. 18. 7. we should be thinking about the possible consequences for recruiting. Health and saiety 13. 9. the bargaining unit described refers to the entire municipality. represented by the same or a different union. or some broader limit/ Sample Articles 1.Chapter 7 The Collective Agreement 167 The recognition article. In Sample Article 3. save and except registered nurses. W ill the bargaining unit include employees such as part-time staff and students/ 3. persons above the rank of foreman. If part-time employees are not unionized. W ill the bargaining unit be described by referring to the Labour Relations Board certificate or by describing the jobs incl uded I 2. so that individual contracts of employment can be established with them. A recognition article is a term in a collective agreement providing that the employer recognizes the union as the bargaining agent for a Sf>ecified group of employees. Key Considerations 7-1 lists some of the issues relating to recognition and provides examples of recognition articles. the bargaining unit includes employees located anywhere in the province. persons employed ior not more than 24 hours per week. a muni cipality. the Labour Relations Board issues a certificate that confirms the jobs included in the bargaining unit. Article 2 illustrates a bargaining unit that includes part-time employees. and by implication will indicate which employees are not in the bargaining unit. \_ When the tmion is certified. physiotherapists. it would be covered by the collective agreement. The recognition clause might simply refer to the certificate as in Sample Article 1 in Key Considerations 7-1. 2000. In Sample Article 2. because they are concerned that work might be shifted to these non-union employees. the union would like to see the agreement contain restrictions on work being done by those employees. This is important because it will identify the employees who are in the bargaining unit and covered by the collective agreement. including nurses. Generally employers would prefer to have part-time employees and students excluded. Tite employer might also prefer to have each location in a separate bargaining unit so that negotiation for each location could . which may be referred ro as the scope clause. The employer recognizes the unio n as the excl usive bargaining agent for employees in the bargaining unit described in the Certifi cate of the Manitoba Labour Relations Board dated January 14. RECOGNITION ~\ \ Considerations 7-1 J --- I Recognition Article . The employees in the jobs excepted might be included in a separate bargaining unit. persons above the rank of foreman. or might not be unionized. Unions would prefer to have parr-time employees included in the bargaining unit or organized in a separate bargaining unit. 2. is usually found at the beginning of the collective agreement. The company recognizes the union as the exclusive bargaining agent for all employees in its nursing homes in the Prov ince of British Columbia. In Article 3. It provides that the employer recognizes the union as the bargaining agent for a specified group of employees that make up the bargaining unit. however. W hat are the geographi cal limits on the bargaining unit: a specific location. part-time employees are not included. if the employer moved or established another plant within the municipality. there are a number of exceptions. save and except foremen. 3. Accordingly. foremen. and stu-( dents employed during the school vacati on period. The company recognizes the unio n as the exclu sive bargaining agent for all employees working in the muni cipality of . and office employees. office staff. T he recognition article will usually describe or limit the bargaining unit in terms of location and jobs./ 1. 3 Accordingly. or the union might wish to expand the bargaining unit to include employees presently excluded. incl uding coml>ensation. Settl ement desired: Compliance with the collecti ve agreement. they did not have jurisdiction in a dispute that involved legislation unless the agreement provided a connection to the legislation. the Supreme Court of Canada has recently held that all employment <Uld human rights statutes are incorporated into collective agreements. it would not follow the recognition clause. The short answer to both of these questions is yes. however. has been violated. which deals with the administration of the collective agreement. 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. In view of this development. reinstatement in [position]. When the parties attempt to negotiate their first agreement after the union is certified. there is a restriction on the negotiation of changes to the recognition clause. 2 Grievance Defined Grievances are allegations that the collective agreement or an employment statute has been violated. such as part-time workers. For additional information on the legal aspects of grievance and arbitration. Date: _ _ _ _ _ _ __ Signature of grievor(s): ________ . 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 discussed in Chapter 8. The advantages and disadvantages of this are referred to in the chapter on negotiation. The point to be emphasized is that it is the recognition article that sets out the parameters of the bargaining unit. will review the application of the grievance and arbitration process in particular areas. FIGURE 7-2 Sample Grievance Grievance: I grieve that I have been laid off contrary to the terms of the collective agreement. Neither side can press this issue to an impasse that would cause a strike or lockout. including human rights legislation. We cover tllis topic here only because the discussion of other contract terms requires an understanding of the grievance and arbitration procedure-in most collective agreements. a grievance can be filed whenever it is claimed that such legislation has been violated. Some arbitrators held that because their jurisdiction flowed from the agreement. interest. readers may wish to refer to specialized sources.168 Cha prer 7 T he Collective Agreement be conducted separately. Chapter 9. A sample grievance is provided in Figure 7-2 . and whether the parties can agree to change the bargaining tmit or amend the recognition clause when they negotiate a renewal of the collective agreement. such as terminations and disputes regarding the application of seniority to job vacancies and layoffs. H owever. At one time. The parties can discuss the recognition cia use and agree to a change. H owever. and any other appropriate remedies. a grievance simply referred to a claim that the collective agreement had been violated. a grievance should now be defined as an allegation that the collective agreement or an employment statute. together w ith the remedy that is claimed to recti fy the situation. together with the remedy that is claimed to rectify the situation. The employer might wish to amend the recognition article so that it excludes a new job classification. GRIEVANCE AND ARBITRATION PROCEDURE T his subsection will consider the collective agreement terms that establish the grievance and arbitration process. Step 1 The grievance shall be reduced to w riting and shall be presented to the superv isor. His or her duties include explaining collective agreement terms to employees. 1. w hic h arise in the course of administration of the coli ective agreement. A steward is an elected local union official who assists employees with issues. w ithin f ive working days from the reply of the supervisor. The written decisio n of the labour relations manager shall be rendered w ithin five working clays following the date of such meeting. Grievance Procedure Types of Grievances A grievance might be filed by an individual employee. The grievance procedure is a series of steps in which union and employer representatives at progressively higher levels meet to try to resolve the dispute. T here is no requirement that the grievance specify the articles of the FIGURE 7-3 Grievance Procedure 1. The grievance procedure article will refer to union stewards and other union officials who represent the union.3 Failing a satisfactory settlement being reached in Step 3. binding decision. Step2 If the decision of the supervisor is not satisfactOI)'. The superv isor shall communicate a reply to the complaint w ithin five working days. or the employer. A meeting between the union president and the manager of labour relations w ill be held w ithin a further four working days. Step3 Failing satisfactory settlement of the grievance at Step 2 the uni on president shal l w ithin five working days of receipt of the department manager's decision present the grieva nce to the manager of labour relatio ns or their designate. usually three or four. including grievances. which arise in the course of administration of the collective agreement. the chief steward shall w ithin eight working days present the grievance to the department manager. The details of the arbitration process are covered in Chapter 9. such discussion must take place w ithin five working days after the ci rcumstances giv ing rise to the complaint first occurred . The department manager w ill meet w ith the c hi ef steward and the department steward w ithin eight working days to discuss the grievance and w ill give a decision in writing to the chief steward w ithin four working clays after the meeting has been held . A fter such discussion as is necessary. the union. w ith the assistance of a union steward.1 It is understood that an employee has no grievance until they first give their immediate supervisor an opportunity to deal w ith their complaint. the superv isor shall deliver a decision in w riting w ithin five working days following the day on w hi ch the grievance was presented.Chapter 7 The Collective Agreement 169 The grievance procedure is a series of steps. at any time w ithin 14 working days after the decisio n is given in Step 3. a group of employees. binding decision . Stewards are elected local union officials w ho assist employees w ith issues. Arbitration is a dispute resolution method in which the parties present evidence and arguments to a third party who makes a final. in which union and employer represenratives at progressively higher levels meet to try to resolve the dispute. Labour relations legislation requires collective agreements to contain a term providing that any disputes regarding the administration of the agreement that the parties cam1ot resolve be referred to arbitration. If an employee has a complaint they shall discuss it w ith their supervisor. . then the grievance may be referred by either party to arbitration as provided in Article . Arbitration is a dispute resolution method in which the parties present evidence and arguments to a third party who makes a final. inc luding grievances.2 If the complaint of an employee is not settled to the satisfactio n of the employee then the fo llowing steps of the grievance procedure may be invoked. and attempting to settle grievances. 1. The collective agreement will set out the number of steps in the process and time limits for each. preparing grievances. An example of a grievance procedure is provided in Figure 7-3. In o rder to be considered a grievance. attending grievance meetings. Canada. an arbitrator . Manitoba. If the grievance is not resolved it might be referred to arbitration. Directo ry time limits are vievved as a gu ide and it is possible that the grievance w ill be allowed to proceed even i f the time limit is not met T he time limits in the grievance process may be either mandatory or directory. and the grievance might be dismissed if a step is not taken within the time allowed. An example of a policy grievance is a claim that the employer has violated the collective agreement by banning the use of personal cell phones on company property. An employer might prefer that the grievance identify the articles. Employers would prefer that the procedure provide for an employee to make a complaint before filing a grievance as in Article 1. A mandatory time limit is one that must be met. a group may claim that the employer incorrectly calculated their holiday pay and claim compensation. British Columbia. he or she might think the employer did not properly take seniority into account.170 A n indi vidual grievan ce is an allegation by an employee that the employer has vio lated the collective agreement or a statute and includes a statement of the remedy sought A gr oup grievan ce is an allegation by a number of employees that the employer has v iolated the collective agreement or a statute in the same manner for all the employees affected and a statement of the remedy sought. A group grievance is a claim by a number of employees that the employer has violated the collective agreement in the same manner for all the employees affected. New Brunswick. it is directory only and failure to meet it does not prevent the grievance from going to arbitration. the agreement may provide that a policy grievance starts at Step 2 and a discharge grievance starts at Step 3. The collective agreement usually provides that some types of grievances are started at a higher step in the process or have different time limits.that gives an arbitrator authority to extend a tinle limit in the grievance process. T he grievance is still arbitrable. Unless the collective agreement prevents it. withdrawn. the grievance cannot proceed to arbitration unless there is an extension granted by the arbitrator.1 in Figure 7-3. Time Limits Mandato ry t ime limits must be met and the grievance could be dismissed if a step is not taken within the time allowed . . and the grievance may be allowed to proceed even if it is not met. Employers usually prefer to have mandatory time limits and may seek language in the agreement that will meet this objective. If the agreement provides that a step "may" be taken within a specified number of days. If the employer denies the grievance the union will have to decide whether to withdraw it or proceed to the next step.4 This means that even if the time limits are mandatory. A policy grievance is an allegation by either the union or the employer that the other has violated the collective agreement. As is noted below. as explained below. the union may file a grievance even if an individual employee does not. Ontario. in violation of the management rights article. An individual grievance is an allegation by an employee that the employer has violated the collective agreement or statute and it includes a statement of the remedy sought by the employee. 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 employee in the job. At each step in the process the grievance could be settled. and Saskatchewan. For example. The grievance procedure article will set out the process to be followed for any grievances. or denied by the employer. with a request for an order that the rule be rescinded. For example. A directory time limit is viewed as a guide. Unions usu ally prefer that time limits be directory. such as "the grievance shall be deemed to have been abandoned. They have held that unless the agreement also provides specific consequences for failing to meet the time limit. If the time limits are mandatory and a step is not taken within the time specified. For example. but unions generally prefer to avoid this. Poli cy grievan ces are allegations by either the union or the employer that the other has v iolated the collective agreement Chapter 7 T he Collective Agreement collective agreement that have been violated unless the collective agreement says they must be provided. The issue of time limits is further complicated by labour relations legislation in six jurisdictions." the time limit is not mandatory.lvlany arbitrators are of the opinion that the word "shall" in a time limit is not enough to make the time limit mandatory. there might be rules in the collective agreement that affect who can file a grievance in a given situation. There are several types of grievances. if an employee was unsuccessful in a bid for a job vacancy. . the collective agreement provided that "Employees will be regarded as probational)' employees for the first sixty working days. grievances were filed. the decision could not be reviewed. The agreement in number 2 did provide that the employer had the sole discretion to decide whether to employ.Chapter 7 The Collective Agreement 171 could allow a grievance to go to arbitration." This provision. '\ Labo Can the Collective Agreement Prevent Probationary Employees from Challenging Dismissal? The question of whether a collective agreement can prevent probational)' employees from filing a grievance if they are dismissed has been the subject of several arbitration and court cases. 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. In another case. appear in their total ity to be saying then is the following: parties can write a collective agreement specifying the employer's right to discharge that. Probationary Employees Employers may wish to know if the agreement can prevent probationary employees from grieving a dismissal. A collective agreement provided that "No employees shall be discharged without just cause" and further provided that "The grievance procedure in respect of dismissal is not applicable to new employees during the first three months. and termination will be at the employer's discretion. was held to be void because it contravened labour relations legislation that provides that any differences between the parties must be resolved by way of arbitration. usually the employer. however. However. which barred probational)' employees from accessing the arbitration process. clearly takes away the right of a probational)' employee to grieve a discharge for cause. 1. 2. but were dismissed as not arbitrable. especially before the negotiation of the first collective agreement. but the union would likely resist this. Du ring this period the employer will be the sole judge of their abil ity and suitability for employ ment. and the parties should consider this issue. It might vety well be asked if this is not just a technical word game. When a party. 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. Labour Relations Issue 7-1 illustrates that the agreement should not directly prohibit the probationary employee from filing a grievance. The arbitrator found that because the collecti ve agreement stated tl1at tl1e employer would be the sole judge of an employee's suitabil ity. Employers may wish to attempt to have the agreement provide that the arbitrator does not have the authority to extend time limits. A single or ad hoc arbitrator is an individual who is appointed to hear and decide a ..'' When probational)' employees were terminated. the parties cannot write a collective agreement whose only bar to the right of a probational)' employee to grieve (and arbitrate) a discharge for cause is expressed as just that. A collective agreement provision that directly states probationary employees cannot grieve dismissal is invalid." Forms of Arbitration Alternative forms of grievance arbitration are sununarized in Figure 7-4. by converse inference.. especially when another arbitrator su mmed up the situation as follows: 'What the above cases . with the proper wording.. and that is lawful. The agreement will specify the form of arbitration. The difference betWeen these two cases is that in number 2 the agreement did not expressly deny probational)' employees the right to grieve.. Consider the following. 172 Cha prer 7 The Collective Agreement FIGURE 7-4 Alternative Forms of Arbitration Type of arbitration Potential advantages Potential disadvantages Single arbitra tor Faster and less expensive than an arbitration board A rbitrato r may be less familiar w ith the collective agreement and the technical issues in the industry. A rbitrator board : employer nominee, uni on nominee, and neutral c hairperson Union and employer nominees are able to advise chair and may ensure that each side's v iew is fully heard. Delay and higher cost Single arbitrator-list of arbitrators set out in collective agreement Faster and less expensive than an arbitration board . Parti es are limited to using arb itrato rs named. A rbitrators may become famili ar w ith collective agreement and parties. Single arbitrator (permanent umpire) appointed to hear all grievances for a spec ified period of time Faster and less expensive than an arbitration board. Arbitrator is familiar w ith collective agreement and parti es. Possibil ity of too much work causing a delay. May not be able to avoid an arbitrator w hose decisions are viewed as adverse. grievance. ,<\n arbitration board is a three-person panel and at one time was the most common form of arbitration. Each of the parties nominates its representative to the board, who in turn select a neutral chairperson. A board is more costly because each side has to pay for its own representative on the board in addition to half the fees of the chairperson. Because more people are involved, an arbitration board also requires more time to establish and function. T he costs and delay associated with arbitration boards have led to the increased use of single (sole) arbitrators. Some agreements specify a list of arbitrators, and the dispute is referred to the next available one on the list. It is also possible for the parties ro appoint one person to hear all disputes for a period of time. This person is sometimes referred to as a permanent umpire. Problems with Arbitra tion Expedited arbitration is an alternative arbitration process that provides for a faster result. 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 ro the completion of the arbitration are possible. To deal with this problem, the agreement can provide for an expedited ;ubitration process, which might include a single arbitrator, and shorter time limits for his or her appointment, the hearing, and a decision. T he agreement may provide that the expedited procedure is available only for certain issues or requires the consent of both parties. Each of the parties will be responsible for their own legal and other expenses associated with arbitration. Most collective agreements provide that the parties will split the common expenses such as the arbitrator's fees and the cost of a meeting location. 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 Chapter 7 The Collective Agreement 173 restrictions, an employee who has been suspended or discharged will be allowed to retain his or her job while the process is going on. An employer would likely oppose such a term. Key Considerations 7-2 lists some of the key questions that must be addressed when the grievance and arbitration procedure is considered. Considerations 7-2 Grievance and Arbitration Procedure 1. Is there a requirement that an attempt be made to settle a complaint before the matter can proceed as a grievance/ 2. A re employees entitled to union representation at all steps in the grievance process I 3. How many steps are there in the grievance process and w ho represents the parties at each step I 4. How muc h time is allowed for each step in the grievance process/ 5. Are time limits mandatory or directory I 6. Are there spec ial procedures for policy, group, or discharge grievances/ 7. Has the authority of the arbitrator to extend time limits been eliminated/ 8. W hat type oi arbitration is established: single arbitrator, <Hbitration board, or other I 9. Is there an exped ited arbitratio n process, and if so what are the time limits and other rules provided I 10. How are the costs of arbitrati on handled I Are they split by the parties/ 11 . Is there a provision requiring the grievance and arbitration process to be exhausted prior to a suspensio n or discharge being effective/ 12. Is there a provision requiring paid time-<>ff w hile in attendance at gri evance meetings I f \_ 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 t he unit. Unfortunately, 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. Key Considerations 7-3 refers to issues relating ro protecting bargaining unit work and illustrates a range of restrictions that are possible. Sample Article 1 provides a complete ban on work being done by employees outside of the bargaining unit. The union would prefer this type of protection. Article 2 is a prohibition with exceptions for training and emergencies .•'\rtide 3 prohibits supervisors and others outside the bargaining unit from doing bargaining unit work if that would cause a layoff or reduction of hours for bargaining unit employees. Ba rgaining unit work is the work no rmall y done by employees in the bargaining unit. 174 Cha prer 7 T he Collective Agreement Considerations 7-3 Protection of Bargaining Unit Work Issues • Will the agreement inc lu de a prov ision preventing non-barga ining unit employees from doing bargaining unit work I • How exte nsive is a ny restriction o n non-ba rgaining unit employees doing bargaining unit work I Does it a llow for a supervisor or others outside the bargaining unit to tra in employees, a nd is it al lowed in the case oi e mergencies? Does it impose a complete ban on others doing ba rgaining unit work o r o nly protect against a reduction oi hours o r a layoff? Sample Articles 1. The employer agrees that only e mployees in the bargaining unit sha ll perform the work normal!)• performed by e mployees in the bargaining unit prov ided that there are ba rgaining unit employees qualified to do the work available. 2. Persons not in the bargaining unit shall not perform work that is no rma lly done by e mployees in the bargaining unit, except in cases oi e mergency or for job training. 3. Employees who are not in the bargaining unit shal l not do work no rma lly performed by e mployees in the bargaining unit if the performance of suc h work causes a reduction of working hours for bargaining unit employees or the layoff of bargaining unit employees. '\ _ f STRIKES AND LOCKOUT S A strike is the refusal to work or the restriction of output by employees. A lockout is an employer's refusal to allow employees to work in order to force the union to agree to certain terms of employment. A strike is the refusal ro work or the restriction of output by employees. 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 weapon equivalent to the union's strike threat. One of the basic principles of Canadian labour 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. H owever, in most jurisdictions labour relations legislation provides that the collective agreement shall be deemed to include a term that there will be no strikes or lockouts during the term of the agreement, if it does not include such a term. 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. !vlany collective agreements have a term of rwo to three years; some have a duration of si."< years or more. It was noted in Chapter 6 that 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. Figure 6-5 showed that in several jurisdictions when a replacement union is certified, the collective agreement may be terminated. Accordingly, it is possible that a collective agreement will not continue to operate for the term specified. T he trend since 1990 has been for terms to be longer. In 1990, the term of the average collective agreement was less than 24 months; by 2009, the average term for major collective agreements (500+ employees) was 41 months. 5 Agreements in the private sector have a longer average term than those in the public sector, and agreements relating to smaller bargaining units (100 ro 499 employees) tend to have Chapter 7 The Collective Agreement 175 shorter terms than those for larger bargaining units. Employers have usually sought longer terms to avoid having ro renegotiate and ro have certainty for planning purposes. Unions have generally sought shorter terms because a collective agreement with a longer term dela ys the opporrunity to improve the terms of the agreement, and exposes employees to the risk of future inflation. UNION SECURITY Union security refers to the critical issues of whether employees in the bargaining unit are required to become union members as a condition of employment, and the deduction of union dues from employees' pay. These two issues should be considered separately because the collective agreement might require the deduction of dues from the pay of bargaining unit employees without requiring uni on membership. Check-off refers to the deduction of union dues from employees' pay by the employer and their remittance 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, but requires the employer to deduct union dues from the pay of all employees in the bargaining unit. Figure 7-5 summarizes the legislative provisions relating to t he deduction of union dues from employees' pay and union membership requirements. FIGURE 7-5 Union security deals w ith the issues of union membership as a requirement for employment and the deduction of union dues fro m employees' pay. Check-off is the deduction of unio n dues from employees' pay by the employer and remittance of the dues to the union. Rand formul a is a collective agreement term requiring the deduction of union dues from all employees in the bargaining unit legislat ive Provisions Relating to Union Dues and Membership Dues Check-off Union Membership Rei igious Exemption Canada Compulsor)' upon request of union Collective agreement may require Yes A lberta Employee authorization required* Collective agreement may require Yes British Columbia Compu lsory upon request of union in first agreement; employee authorizatio n re<1u ired in subsequent agreements Collecti ve agreement may require Yes Manitoba Compulsory Collective agreement may require Yes New Brunswick Employee authorization required Collecti ve agreement may require No Newfou nell and and Labrador Compu lsory upon request of uni on, except in construction industry Collecti ve agreement may require No Nova Scotia Employee authorization required Collecti ve agreement may require No O ntario Compulsory upon request of union, except in construction industry Collective agreement may require Yes Pri nee Edward Island Collective agreement may req uire; otherw ise employees must approve by vote and indiv idual employees must authorize Collective agreement may require No Q uebec Compulsory Collective agreement may require No Saskatchewan Compu lsory upon request of uni on Compulsory upon rec1uest of unio n Yes *In 2009 the Alberta Labour Relations Board ruled that the failure to provide for the mandatory deduction of dues was a v iolation of the Charter and gave the province 12 mo nths to revise the Code. Sources: Canada, Canada Labour Code, ss. 68, 70; A lbena, Labour Relations Code, ss. 27, 29; British Columbia, Labour Relations Code, ss. 6, 15, 16, 17; Manitoba, Labour Relations Act, ss. 23, 76, 77; New Brunsw ic k, Industrial Relations Act, ss. 8, 9; Newfound and Labrador, Labour Relations Act, ss. 31, 83.1; Nova Scotia, Trade Union Act, ss. 59, 60; O ntario, Labour Relations Act, ss. 47, 51, 52; Prince Edward Island, Labour Act, ss . 9, 45; Q uebec, Labour Code, ss. 47, 62, 63; Saskatchewan, Trade Union Act, ss. 5(1), 32, 36. 176 Cha prer 7 T he Collective Agreement Union Dues In most jurisdictions, legislation provides for the compulsory check-off of union dues upon the request of the union. T his could be viewed as legislative imposition of the Rand formula. In jurisdictions with this type of provision, all employees in the bargaining unit, not just union members, will have union dues deducted from their pay, and the consent of employees is not required. In a few jurisdictions, listed in Figure 7-5, the deduction of union dues is not mandatory. However, in 2009 the Alberta Labour Relations Board, applying the Health Sciences case referred to in Chapter 2, 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. T his 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 Sciences case. Most agreements that contain a dues check-off provide that the dues will be remitted to the unwn on a monthly basis. Union M embership Cl osed sh op is where an ind ividual must be a union member before being hi red; neo.v employees are hired through the unio n. O p en sh op is a place of work in w hich union membershi p is not required to obtain a job or to continue employment U nio n sho p is w here neo.v employees do not have to be union members to be hi red, but must become un ion members w ithin a specified number of days. Maintenan ce of m emb er ship is where emp loyees are not required to join the union as a cond ition of employment, but all workers w ho voluntarily jo in must maintain their membershi p for the duration of the agreement as a condition of employment Modified unio n sho p is where non-union employees already employed do not have to join the union, but all new employees must jo in, and those already members must remain in the union. Saskatchewan is the only jurisdiction where the legislation provides that a provision in the collective agreement requiring union membership will be included if the union requests. In other jurisdictions, the collective agreement will only provide that union membership is a condition of employment if the parties agree to such a requirement, and 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 represent all employees in the bargaining unit fairly. In the United States, some states have adopted "right-towork" laws, which prohibit mandatory union membership. T here is no equivalent legislation in Canada, and this is one of the ways the Canadian legal environment is friendlier to unions. In six Canadian jurisdictions, listed in Figure 7-5, legislation allows employees to be exempted from union membership and dues requirements on religious grounds. T he requirements for the exemption vary between jurisdictions and reference should be made to the legislation for details. Variations of the union membership requirement that may be contained in a collective agreement are listed in Figure 7-6. The closed shop is generally limited to the construction industry. 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, .'\lberta, 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. The modified union shop, in which union membership is required only for employees hired after the agreement is in force, is a possible compromise. Chapter 7 The Collective Agreement FIGURE 7-6 177 Possible Union Membership Requirements Type of Union Security Closed Shop Coll ective Agreement Term An individual must be a union member before being hired; new employees are hired through the union. New employees do not have to be union members to be hi red, but must become union members within a specified number of days. Union Shop Mod ified Union Shop Non-uni on employees already employed do not have to join the union, but all new employees must join, and those already members must remain in the uni on. Maintenance of Membership Employees are not required to join the union as a condition of employment, but all workers who voluntarily join must maintain thei r membership for the duration of the agreement as a conditi on of employ ment. Open Shop A place of work in which union membershi p is not req uired to obtain a job or to continue employ ment When the collective agreement is negotiated, the union and the employer will have to deal with the union security issues listed in Key Considerations 7-4. --\ \ cons1.d erat10ns . 7-4 __ _) Union Security 1. Will the agreement require union membership prior to being hired (closed shop)l 2. Will the agreement require union membership after being hired (union shop)l 3. If union membership is rec1uired, will employees who already work for the employer be excepted (modified union shop)I ( Will the agreement require the check-off of dues/If so, is the authorization of employees required/ 5. When are dues to be remitted to the union/ 4. \... MANAGEMENT RIGHTS Most of the provisions of a collect ive 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 refer to the issue of uni forms, management would have the right to introduce a uniforms policy. T he management rights article expressly sets out that management retains the authority to manage the organization, except as otherwise provided in the collective agreement. The management rights article has been relied on to make numerous management Manag~ment rights is an article providi ng that management retains the authority to manage the organization, except as otherwise l>rovided in the collective agreement. R~serv~d or residual rights is a theory that the employer has all rights to manage the organization except as expressly restricted by the collective agreem~nt. 178 Cha prer 7 The Collec.rive Agreement FIGURE 7-7 Management Rights Sample Articles: General (short) form 1. It is recognized that the employer exercises ri ghts and responsibilities as manageme nt, whic h are subject to the terms of this collective agreement. Detailed (long) form 2.1 It is recognized that the Ma nagement of the Company, the control of its properties a nd the maintenance oi o rde r o n its premises is solely the responsibility of Management. 2.2 Other ri ghts and responsibilities belonging to the Manageme nt of the Compa ny and are hereby recognized, include: the right to decide the number and locatio n of plants; the a mount and type of machine ry a nd technical equipment re<1uired; the amount a nd type of supervision necessary; methods, procedures a nd standa rds of operation; judgment and final eva luation of personnel qualifi catio ns; operating schedules and the selection, procureme nt, designing a nd e ngineering oi equipment whic h may be incorporated into the Company's plant. It is further recognized that the responsibility of management oi the Company io r the selection, direction, a nd determination of the size of work forces, including the right to hire, suspend or discharge ior just cause, transfer, promote or relive employees fro m duty because of lack of work is vested exclusive~· in the Company. 2.3 The management ri ghts of the Company as above set forth shall be exercised in all respects in accorda nce with the terms oi this agreement. decisions such as changing the method of payment, eliminating smoking facilities, and establishing a rule to search roolboxes. The two types of management rights clause are a general (short.} form and a detailed (long) form. Figure 7-7 provides an illustration of both. T he short form, which is preferred by unions, is a simple statement confirming that the employer has the right to manage the organization. T he 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 arbitraror to a specific right provided in the agreement. Accord ingly, the long form may increase the likelihood of an arbitrator making a decision favourable to the employer. Possible restrictions on the application of the management rights article will be explained in Chapter 9, which deals w ith the administration of the collective agreement. T he law relating to the obligation of management to be fair and reasonable in the administration of the agreement is unclear. One school holds that management has a duty to act reasonably only in connection with matters specifically set out in the agreement. According to tllis approach, if the agreement provides for the assigmnent of overtime, management would have to do so fairly and reasonably. Another school of thought holds that there is an overriding duty to act fairly and reasonably w ith 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. T he cases referred to in Labour Relations Issue 7-2 illustrate situations where the question of management's duty to act fairly has arisen. Chapter 7 The Collective Agreement 179 Does Management Have to Act Reasonably? Some court and arbitration decisions have considered the question of whethe r management must act reasonably in the exercise of management rights. For example, in o ne case the management rights article provided as follows: The Union recognizes and acknowledges that the management of the plant and its facilities and direct ion of t he employees are fixed exclusively in t he Employer.... The Employer agrees that it will not exercise its functions in a manner inconsistent with t he provisions of this Agreement and the express provisions of t his Agreement constitute the only limitations upon the Employer's rights. The employer introdu ced security cameras into the workplace and the union filed a grievance alleg ing that the installati on of the cameras was unreasonable. The arbitrator found that there was no express limitation in the management rights article requirin g the exercise of manage ment rights to be reasonable and accordingly refused to conside r the issue of reasonableness and dismissed the grievance. In another case the employer established a rule that employees could not bring personal cell phones into the workplace. The union filed a grievance challenging the rule. After referring to othe r cases, the arbitrator noted: Taking all of those cases together, what they appear to say is that an arbitrator may take jurisdiction to review an exercise of discretion if it is based on some provision of the collect ive agreement, either express or implied, but if it involves the promulgation of a rule through an exercise of management rights in an area that is not touched upon by the agreement, an arbitrator may not review it, except in its application, where the employer purports to discipline an employee who is alleged to have breached t he rule. Should labour law require management to have to act reasonably/ In view of this uncertainty in the law, the wording of the article could be important. If it does not provide that the employer must act reasonably, management may be able to argue that there is no such requirement, as illustrated in the cases in Labour Relations Issue 7-2. T he article might specifically state that management has the right to make " reasonable" rules. Unions prefer a provision that clarifies that management rights must be exercised reasonably. Employers prefer a provision that does not put constraints on management. CONTRACTING OUT Contra cting out refers to an employer arranging for another firm to do work that could be done by the employer's own employees. For example, if a hospital had its ownlmmdry staffed by hospital employees, it could contract out this work to a laundry service provider. T his will mean that the employees who formerly did the work will not be needed and layoffs could result. 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, for a sound business reason. Unions will seek to have language in the agreement that prevents or restricts contracting out to protect existing jobs in the bargaining unit. Employers will want to maintain the capability to contract out to provide flexibility and reduce costs. It should be noted that contract provisions relating to conrracting out are separate from any restrictions relating torestrictions on bargaining unit work previously referred to. A contract term relating to bargaining unit work only prevents other employees from doing work; it does not prevent contracting out. Key Considerations 7-5 refers to key issues the parties will have to consider and provides sample articles on contracting out. Contracting out occurs w hen an employer arranges for another firm to do work that could be done by the employer's ovm employees. 2. and sunset clauses. how extensive will it bel Will it be a complete ban. A complete ban on contracting out as in Article 1 is unusual. If the disciplinary procedures provided in the collective agreement are not followed. There shall be no contracting out unless no bargaining unit employee is availa ble and capable of do ing the work and no bargaining unit e mployee may be hi red to do the work. DI SCIPLINE AND DI SC HARGE Most collective agreements provide in the management rights article or elsew here that the employer has the authority to discipline or discharge employees for miscon duct that amounts to just cause. Some jurisdictions have provided that the collective agreement must contain a just cause a rticle. or a prov ision that prohibits contracting out unless a certain level of cost savings is reali zed I Sample Articl es 1. which prohibits contracting out if it would cause a layoff. T here may be articles in the collective agreement that lay down procedures that must be followed w hen the employer imposes discipline. The employer sha ll not contract out work no rma lly performed by e mployees in the barga ining unit. a prohibition on contracting out that will result in layoffs. The employer agrees not to contract out any work presently performed by e mployees covered by this agreement th at would result in the lay ing off of regula r employees. an arbitrator might order that the discipline or discharge be reversed . T his would mean that a suspended employee would be ent itled t o . Within two weeks of such notice the parti es wi II meet and make / every reasonable effort to prov ide alternative f ' employme nt for e mployees affected. most arbitrators will require that the employer establish just cause to discipline or discharge. or impose limitations on the employer's right to discipline or discharge. time limits. a ban for a certain period of time.180 Cha prer 7 The Collective Agreement Considerations 7-5 Contracting Out Issues 1. b ut currently o n ly British Columbia and !vlanitoba require this. Except in the case of e mergency. If there is a restriction on contracting out. Key Considerations 7-6 refers to issues tha t the parries may refer to in the agreement. The employer may contract work out only if the contracti ng out meets the require ments of this a rti cle. If a collective agreement contains any restrictions on contracting out. or the contracting out will result in cost sav ings to the employer of at least $_ _ 4 . To maintain flexibility. Article 3 provides in part that the employer shall not contract out w1less a certain level of savings can be realized. a provision requiring notice to the union and consultation. 3. it is more likely to be a limited ban on contracting out as in Article 2. Even if the agreement does not contain such an article. and avoid having disciplinary decisions reversed by arbitrators. Is the re to be any type of restrictio n on contracting out in the collecti ve agreement/ 2. Unions generally prefer to have the collective agreement require union representation. the employer agrees to give the union at least 90 days' notice prior to contracting out any work that may result in the layoff of any e mployees in the bargaining unit. Article 4 is the least restrictive for the employer because it only requires notice to be given. notice and reasons. employers would prefer to avoid tllis type of procedural requirement. Disciplinary action mu st be taken within specified time limits. Most collective agreements contain articles that expressly provide that the parties will not discriminate against employees and prohibit retaliation against employees for union activity. 3. Canada Post conducted an investigation into employee theft that included hidden video cameras. Employees must be allowed to have unio n representation in any disciplinary meetings. Two types of discrimination articles are illustrated in Figure 7 -8.Chapter 7 The Collective Agreement 181 Considerations 7-6 Discipline and Discharge W ill the collective agreement contain any of the following terms? 1. such as being late. T he factors arbitrators consider when determining whether to do so are reviewed in Chapter 9 . which prohibits discrimination. the arbitrator has the authority to reduce the penalty imposed by the employer. 4 . Some collective agreements provide for a demerit point system that provides that acts of misconduct. or a discharged employee would have to be reinstated. in all jurisdictions except British Columbia. If the collective agreement provided that the penalty for having alcohol at the workplace was a suspension for a specified time or discharge. f 5. the arbit rator would not have the authority to reduce the penalty. which protects employees from retaliation for union activity. Spec ifi c penalties are provided for misconduct . Un ions would prefer the agreement not to provide for specific penalties so that an arbitrator could reduce the discipline imposed. Canada Post was ordered to reinstate them because it had failed to take disciplinary action within the time limit required. Notice and written reasons for any discipline must be prov ided. Sunset clauses that require any prev ious adverse re- ports or incidents to be removed fro m the employee's file after a specified time w ithout any issues arising. the collective agreement at Canada Post required the employer to take disciplinary action within 10 days of any misconduct. The first refers to the relevant legislation and confirms that the parties will comply. reimbursement for any lost wages. 2. Although it is not commonly done. Accordingl y. In one case. T he I \_ . result in a certain number of demerit points and provide that if the employee accumulates a specified level of demerit points over a time period they are terminated. DISCRIMINATION Chapter 2 referred to lnunan rights legislation. Although some employees were caught on tape stealing from the mail. an arbitrator's authority to reduce the penalty could be eliminated by providing for a specific penalty in the collective agreement.6 Labour relations legislation in all jurisdictions except Brit ish Columbia provides that unless the agreement provides for a specific penalty for the misconduct. and Chapter 6 referred to labour relations legislation. employers outside of British Columbia may wish to have the agreement provide for specific penalties for certain misconduct so that the arbitrator's authority to reduce the penalty is eliminated. thus incorporating the BFOR defence. In the case of competitive status. record of offences. 8 T he uncertainty in this area could be avoided by providing specifically for the BFO R defence in the agreement. the arbitrator ruled that the collective agreement should be interpreted as meaning discrimination as defined in the relevant human rights legislation. A distinction should be made between two different uses of seniority: (1) competitive status issues or job rights where seniority is being used as a factor in determining promotion. sex. In the case of benefit status. . or providing that t he agreement will be interpreted in accordance with human rights legislation. might mean tha t the parties have provided for greater protection than human rights legislarion contains. In response. SENIORITY: ESTABLI SHMENT AND TERMINATION Seniority Defined Seniority is a n e mployee's le ngth of service w ith the e mployer. there is no competition between employees. A female employee filed a grievance claiming there was discrimination in violation of the collective agreement. but they can agree to more protection. marital statu s. T he Supreme Court observed that the parties may negotiate a non -discrimination clause that does not provide for a BFO R defence? In another case where the agreement prohibited discrimination on the basis of sex and did not define discrimination or refer to the BFOR defence.they cannot agree to a standard that provides less protection than the legislation. and (2) benefit status where seniority determines an entitlement such as the amount of vacation. or union membership or statu s. Seniority is an employee's length of service with the employer. sexual orientation. T his might be done by providing a broader definition for a prohibited ground of discrimination. T he union argued that the agreement did not provide for the BFO R defence and accordingly it was not available because the parties had agreed to a higher standard. creed. The employer posted a job for a personal care attendant. disability. as in number 2 in Figure 7-8. In accordance with the Ontario Human Rights Code and Labour Relations Act. the employer put forward the defence that gender was a bona fide occupational requirement. In one case. that the employer would otherwise have available. specifying that candidates must be male because the work involved health care for male clients. The Compa ny and the Union agree that they will not discriminate against any employee on the grounds of age. colour. layoff. citizenshi p. second lists the grounds of discrimination prohibited without referring to the legislation. the parties agree that there will be no discrimination against any employee covered by this agreement.182 Cha pter 7 The Collective Agreement FIGURE 7-8 Sample Discrimination Articles 1. Articles that set out specific grounds of discrimination. seniority is being used as a factor to determine which of two competing employees will be assigned to or allowed to keep a job. race. a gain by one employee does not come at the expense of another. political or religious affili ation. Most collective agreements contain seniority provisions that give a job preference or benefits to employees on the basis of seniority. The parties cannot contract out of human rights legislation. a collective agreement prohibited discrimination on the basis of sex. national origin. or recall. 2. or eliminating the BFOR defence referred to in Chapter 2. 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 ability. and Termination 1. T he parties might specify a tie-breaking formula such as the alphabetical order of the employees' names or a rando m d raw. seniority may be defined as the time spent in a department or job classification. If there is no probationary period. How long is any probationary peri od I 6. 3. 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. Considerations 7-7 ) Seniority Definition. Employers would prefer the reference to be to working days so that the employee must actually have worked a day for it to count. If the agreement provides that seniority is a factor in determining layoffs and promotions. is absent for a specified numbe~ / of days. Application of Seniority Seniority applies only to the terms of employment specified in the collective agreement. etc. What a re the details of any seni ority list. Key Considerations 7-7 refers to some key issues relating to the definition. When the probatio nary period is completed. or is laidr \_ off for a specified time. For what issues will seni ority be considered a facto rI Consider job vacancies. o r some othe r provision. o r referring to some other period such as time in a particular classification o r depa rtme nt. overtime distribution. it will not be a factor regarding other issues such as shift assignments. establishment. seniority may be defined as the entire period of employment or service in the bargaining unit. and termination of seniority. A collective agreement may provide for different ways to calculate seniority for different applications. 2. layoffs. Unions prefer seniority to apply to more workplace issues and for seniority to be given more emphasis. fails to return to work afte r a recall. vacatio n scheduling. T he collective agreement will usually provide that the employer will periodically prepare and post a seniority list and provide a copy to the union. retires. What is done when two e mployees have the same senio rity datel 5. and if so which unio n officers does it apply tol 9. Collective agreements may contain a provision that employees are on probation for a specified length of time. For competitive status issues such as promotions. T here is no probationary period unless the collective agreement provides for one. and periods that refer to a specified number of working days. T he agreement may include a provision to deal with the possibility that two employees have the same seniority. Is the re a prov ision fo r super-seniority.Chapter 7 The Collective Agreement 183 Seniority provtstons and their application can be quite complex. For benefit status issues such as vacation. incl uding how ofte n and where it must be posted I 8. Establishment. recalls. 4. Whe n will seniorit)' be lostl Consider when an e mployee quits. because this provides increased job security for longer-term employees and avoids favouritism by management. employees are entitled to all rights provided in the collective agreement from the time they start their job. . is seniorit)' backdated to the start of employme nt or does it begin with the completio n of the probati onary period I 7. How is seniority defined or calculated for each application/ Consider the length of service with the employer. What happens to seni ority if employees move to jo bs outside of the barga ining unitl 10. How muc h weight is senio rity given as opposed to skill and ability I Consider sufficient ability versus relatively equal. T his possibility will be elaborated upon in Chapter 9. The employer may prefer the recall period to be shorter. he or she is automatically dismissed. it is permissible to provide that employees who are not working do not acctunulate seniority for purposes of pay or vacation increases. The union will seek a longer recall period. The agreement might also put conditions on an employee returning. Many collective agreements combine the loss of seniority with the loss of employment. T he general rule is that employees who are transferred or promoted out of the bargaining unit no longer have any rights under the collective agreement. and job vacancies. Labour Relations Issue 7-3 illustrates a collective agreement that contained restrictions on seniority accumulation and the payment of benefits to employees who were not working. which deals with the administration of the collective agreement. The answer depends on whether the seniority is viewed as a benefit all employees are entitled to simply because they are employees or categorized as part of compensation. Loss of seniority is a separate issue from the termination of employment. termination does not happen unless the agreemem provides that is the case. Termina tion of Seniority The r ecall p erio d is the length of time an employee on layoff is entitled to reclaim their job. or for other reasons. that is. TI1ey lose their seniority and do not have the right to return to the unit unless the agreement provides otherwise. which means that the individuals who hold the union office referred to wiU be the last to be laid off. The agreement might specify that time outside of the bargaining unit is included in seniority. . D eemed terminatio n is a contract term providing that an employee is dismissed if he o r she is absent for a specified time. Seniority might be lost in the event that the employee quits or retires. such as prohibiting a return if that would result in the displacement of another employee. It determines how long an employee has the right to be recalled. can be an important issue for the parties. is discharged and is not reinstated through the grievance and arbitration process. 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. T he agreement should specify what happens to an employee's seniority if the employee leaves the bargaining unit. AND j O B VA CAN C IE S Key Considerations 7-8 outlines key issues in the application of seniority to layoffs. T he period of time that employees can be on layoff without losing their seniority rights. However. recalls. RE CALL S. they provide that the same factors that cause loss of seniority also cause termination. It appears that a collective agreement term providing that seniority for the purposes of job competition does not accumulate during a leave is discriminatory if it has the effect of denying seniority to employees who are disabled.184 Cha prer 7 The Collective Agreement Super -seniority is a provision that specifi ed union officers w ill be the last to be laid off. T he 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. is laid off for a specified length of time. A deemed termination provision states that if an employee is absent for a specified length of time. SENIORIT Y : APPLI CATI O N TO L AYO FF S. and put a time limit on a return to the unit. the recall period. A question that might arise is whether the agreement may provide that seniority does not accumulate for employees who are away from work on leave or because of a disability. The agreement may also provide for super-seniority for specified union positions. The purpose of super-seniority is to ensure union representation for employees when layoffs occur. The collective agreement should specify what causes seniority rights to be lost. w hich must be posted ? 2.185 Chapter 7 The Collective Agreement Can the Collective Agreement Deny Seniority and Benefits to Disabled Employees? A col lective agreement between a hospital and a uni on representing nurses provided for the following: 1. the agreement may state that they are only provided to employees providing service. what termination and severance pay are employees entitl ed to? 6. if any. how the reca ll notice is given. and job Vacancies 1. W hat are the details of the job posting process. Because the seniority provisions relati ng to layoffs. How muc h weight is senio rity given as opposed to skill and ability: sufficient ability versus relatively ec1ual. o r some other provision? ~- . and time to respond? 3. Accordingly. Benefits. how long does a job have to last in order for it to be a vacancy. However. they did not have to be provided to disabled employees. and wou ld have to pay for the continuation of their benefits. Accumulated service affected vacation pay and placement on a salary grid. including how much notice is required. W hat notice of layoff is required? 3. W hat is the definition of a vacancy? For example. duration. W hat are the details of the recall process. Benefits o r other contract terms that are part of compensation in return for work 1. and how long employees have to respond ? Job Posting 1. including the method. Benefits and other elements of compensation do not have to be provided to employees w ho are unable to provide work in return. and what if any are the restri ctions on bumping? 5. and were based solely on employee status. Items that were not part of compensation had to be provided to al l employees in the same manner to avoid discrimination. which was a violation of human rights legislation. recall. and promotions. The agreement further provided that if employees were on unpaid leave for more than 30 days. Benefits that flow from the employment relatio nship. The Court of Appeal made an important distinction between: Considerations 7-8 Seniority Application to Layoffs. how long does the interruptio n of work have to be caught by the layoff provisions? 2. W hat is the definition of layoff? That is. recalls. Fo r layoffs. The union claimed that this was discrimination in that disabled employees were being treated differently because of disability. 3. seniority had to be credited to disabled employees. The employer paid premiums for benefits. do laid-off employees receive? 4 . because benefits and the service accrual were found to be part of the compensatio n scheme for work done. benefits and seniority that flow from employee status and are not part of compensation for work done must be provided to disabled employees. if any. This case establishes that if benefits and senio rity are a form of compensation. W hat bumping rights do employees have. Seniority. with longer-service employees being entitled to more vacation and higher pay. w hich are not part of the compensation-work bargain 2. 2. and promotions were not part of the compensation scheme. senio rity governed when qualifications were otherw ise equal. Employees who were away from work because of a disability were caught by these provisions. W hat benefits. Recalls. are the restrictions o n w ho can bid for a job? 4 . and accord ingly would stop accumulating seniority and serv ice accrual. Service accrual. If a layoff becomes permanent. the seniority and serv ice accrual stopped and the hospital stopped paying benefit premiums. W hat. Job Vaca ncies T he collective agreement may define job vacancies and require the employer to post them. the union contended that there had been a layoff as defined in the collective agreement. As long as the employees have more seniority. a number of collective agreement rights and obligations could be triggered.. T he employer . T he definition of a layoff in the collective agreement is important because if a layoff occurs.. . 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. Unions would prefer that there be fewer restrictions on bumping. the implication was that the alternative. who in turn bumps one with one year's service. T he contract might provide that employees can only move into certain job classifications. the employer may also be required to provide early retirement or severance options to employees who have been laid off. In addition to determining who should be laid off after taking into accotmt seniority. In the second type of provision employees with more seniority can bump more junior employees provided that they have the minimum job requirements for the position. 9 Accordingly all of the agreements provisions relating to layoffs including notice. there might be a series of bumps when an employee with five years' seniority bumps one with four years' seniority. if the agreement defined a vacancy as a job that was going to last more than 90 days. Bumping articles can come in three different forms depending upon the relative importance of seniority versus skill and ability. a reduction in a nurse's hours of work and cancellation of all or part of the nurses scheduled shift . An arbitrator upheld the grievance noting that by stating that a partial or single shifr reassignment would not be considered a layoff. In one hospital collective agreement. a longer reassignment. If there is no requirement that an employee must bump the lowest seniority employee." When the hospital reassigned nurses from one unit to another. it would be possible to avoid posting and seniority requirements for shorter assignments. Recalls T he agreement will usually provide that employees who have been laid off will be recalled to work in order of seniority. For example. did constitute a layoff. a layoff was defined as: " . and must have the required ability to do the work. Bumping or bumping rights refer to an employee who would otherwise be laid off displacing another employee with less seniority. possibly combined with training periods for employees who wish to move to another position. the layoff provisions including notice are not an issue for a shorter period. a partial or single shift reassigmnent of a nurse from her or his area of assigmnent will not be considered a layoff. the employee with the most seniority can only bump a more junior employee if they have equal or better skills than the junior employee. Some collective agreements have defined a layoff in a manner that means more than the displacement from work will be caught. early-retirement and severance offers were engaged. . In the third type of btmlping. T he assessment of skiU and ability is reviewed in Chapter 9. Employers would prefer to have restrictions on bumping in order to avoid having employees move or bump into positions they are not qualified for. they can bump a more junior employee. When the employer is filling short-term openings. It is beneficial to the employer if a layoff is defined in a manner that would exempt short interruptions. and ability. The agreement might place restrictions on bidding or applications for a job. and to reduce the number of bumps. skill.186 Cha prer 7 T he Collective Agreement Layoffs Bumping is the displacement of an emp loyee by another w ho has more senio ri ty and would otherw ise be laid off. If a layoff is defined as a period of at least five working days. it would be beneficial if vacancies were defined to exclude shorter-term jobs. 10 One type of provision refers to seniority as the only factor to be considered. Most jurisdictions require a health and safety committee to be established if there are more than 20 employees (10 in Newfoundland and Labrador and Saskatchewan). Figure 7-9 provides a summary of information available from Human Resources and Skills Developmenr Canada regarding health and safety issues. unions favour it." A reference to capability is less demanding than a requirement that the employee have the skill and ability necessary. whereas employers favour the relative ability provision. The employer would likely prefer to avoid a required training period. and the agreement can specify how much weight will be given to skill and ability as opposed to seniority. T he exact wording of the agreement regarding skill and ability might be significant. It has been held that when the contract refers to capability. also known as a threshold ability clause. The employee might be required to remain in a job for a certain length of time before bidding on another. the parties could agree on a hybrid seniority provision that falls between a sufficient ability and a relative ability term. TI1e legislation is enforced by inspections and provides for the prosecution of employers and employees who do not comply. employers have a duty to establish and maintain a safe workplace. Alternatively. It has been established that unless the collective agreement provides for a training period. In this approach. Because the sufficient ability type of provision gives more weight to seniority. an employee is entitled to a period of familiarization with the job even though the agreement did not specifically allow for one. so that an employee who has the ability to do the job without any additional training can immediately move into the job. 187 A su fficien t ability clause is a provision that the emp loyee with the most seniority is awarded a job provided he or she has enough ability. 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. A r elati ve or competit ive abil ity clause is a provision that seniority w ill onl y be referred to if the skill and abili ty of two employees competing for a job are relatively equal. TI1e union would prefer that the agreement provide for a longer training period. employees are not entitled to one. on the other hand. employers would prefer the contract to require that employees have the skill and ability required. Accordingly. in a reasonable mmmer giving each the appropriate weight. The agreement might provide for a training period of a specified number of days. . The parties can agree that skill and ability will also be a factor. There are two primary ways that skill and ability can be combined with seniority: a sufficient ability clause or a relative ability clause. Employees must follow safe work practices and use protective equipment. because it gives more weight to skill and ability.Chapter 7 The Collective Agreement might wish to avoid having someone successfully bid for and move into one job and then bid for and move to another. provides that seniority will only be referred to if the skills and abilities of two employees competing for a job are relatively equal. A h ybrid seniority provision combines sufficient and relative ability. seniority is included along with skill and ability when the determination is made. Pursuant to the legislation. T he phrase "capable of" doing certain work is not the same as having the "skill and ability required. Arbitrators have held that the employer must demonstrate that the decision was made by considering the factors listed. and allow the employee to return to a previous job if he or she is not successful in the new one. and employees have the right to refuse unsafe work. provides that the employee with the most seniority is awarded the job if he or she has enough ability. Joint health and safety committees or representatives must be appointed. HEALTH A ND SA FET Y All jurisdictions in Canada have health and safety legislation that sets out rights and obligations for employers and employees. A relative or competitive ability clause. even if another employee has more skill and ability. including seniority. A sufficient ability clause. An employee must have the skill and ability to do a job at the time he or she applies for it. The employee with the most seniority will be awarded the job only if he or she has skill and ability equal to or greater than that of other employees. gc. Alternatively. some collective agreements ma y not have any health and safety provisions. including any increases that will be made over the term of the a greement. T here is a provision for a health and safety representative w ho takes on many of the responsibilities of a committee in a smaller workplace that does not have a sufficient number of employees for a committee. WAGES T he agreement will set out the wages that are to be paid to various job classifications. Some agreements might simply have an article that requires the parties to be committed to health and safety and comply with the legislation. Human Resources and Skills Development Canada Legislati on re lating to jo int occupati onal hea lth a nd safety committees httpJ/www. it may require a larger health and safety conunittee or more frequent meetings of the committee. A brief explanation of that right for each jurisdiction is available at the website referred to in Figure 7.9 . All jurisdictions provide that employees have the right to refuse unsafe work. ___ / . T he agreement might provide for requirements over and above those legislated.gc .gc .for example. shtm I Preventi on of vio lence in the workplace h ttpJAV'vV'vV.ca/en/1 p/spi Ia/el li/ohsldO 7 prevention_viole nce_ in_ workplace.h rsdc.ca/en/lp/spiIa/el li/ohsld04leg islatio n_safety_health_ representati ves. T he pay .gc.ca/en/1 p/spi Ia/el li/ohs ld06enfo rcemen t_o rders_hea lth_ safety_offi cers_ inspectors.shtml One of the responsibilities of such a committee is to make recommendations to the employer to improve health and safety. Considerations 7-9 Health and Safety 1. If the agreeme nt establishes a health and safety committee. or will it set out specific terms for the workplace/ 2. Will the agreement refer to compliance with leg islatio n.shtm I Enfo rcement orders of health and safety officers/inspectors h ttpJAV'vvw .h rsdc. Is the ri ght to refuse un safe work included in the agreement/ 4 .h rsdc. Because of the legislated requirements.gc .18 8 Cha prer 7 The Collective Agreement FIGURE 7-9 Occupational Health and Safety Legislation in Canada.h rsdc. who are on the committee and how are they se lected I How often does the committee meet I What are the functions of the committee I 3. h rsdc.ca/en/1 p/spiIa/el li/ohs IdO Sleg islatio n_ri ght_to_refuse_ dangerous_ work. Key Considerations 7 -9 refers to issues that the parties will have to address regarding health and safety.calen/1 p/spi Ia/el li/ohslc!031egislationjo int_occupational_ hea lth_safet)'_committees. the parties can set om extensive health and safety provisions in the agreement.shtm I Legislation re lating to safet)' and health representatives httpJ/www. Does the agreement req uire the employer to prov ide and pay fo r protective equipme nt/ ( \_ T he union ma y prefer that t he agreement contain specific health and safety provisions.shtm I Legislation re lating to the right to refuse dangerous work h ttpJ/www. at times it has been a serious concern for employers and unions. Considerations 7-1 0 Holidays and Holiday Pay 1. Employmenr standards legislation establishes rules including a minimum wage and the form of payment (cash. provided the change is prompted by a valid business reason. In addition to the basic wages. The agreement must provide for at least the minimum holidays required by employment standards legislation. but the union may seek to have the agreement provide for additional holidays. and clothing allowances. or that the union will be consulted if there are any such changes. W hat restrictions are there on receipt of ho li day pay. Consequently. Cost-of-living all owances (COLA) are provisio ns that provide an increase in pay for employees based on a formula linked to the rate of inflation. management can change the job classifications referred to in the agreement. Key Considerations 7-10 provides issues the parties will have to address regarding holidays. W hat is the amount of the hol iday pay I 8. How many holidays are provided for in the agreement? 5. W hat is the compensation for work done on a holiday I 2. and should not be confused with vacations. Unless the agreement provides otherwise. additional pay for hazardous work. such as working the scheduled day before and the schedu led day after the holiday I 7. The union would prefer that if the parries cannot agree on a classification the matter be referred to arbitration. pay for meals.76 and 1980-82. W hat happens w hen a shift starts on a day before a holiday and extends into a ho liday? 3. COL'\ provisions require that an increase in pay will be provided to employees on the basis of a formula linked to the rate of inflation. H O LI DAYS A ND H O LID AY PAY H olidays such as Thanksgiving are paid days off. Although inflation has been reduced in recent years. W hat happens w hen a holiday falls on a scheduled day offl . W ho is entitled to a hol iday I A re probatio nary employees excl uded? 6. T he parties should clarify the issue of a holiday falling on a day an employee is absent because of a leave or vacation. Unions have sought cost-of-living allowances (COLA) in collective agreements to protect against the risk of inflation. cheque.189 Chapter 7 The Collective Agreement rate and procedure stated in the agreement will have to comply with employment standards and human rights legislation. or direct deposit). Figures 5-4 and 5-5 in Chapter 5 provided sources of information regarding minimum wages and other terms of employment. The union may seek to have the agreement provide for callin pay that is greater than the minimum set out in the legislation. In the years 1975. Employment standards legislation provides a minimum amount that employees who report for or are called in to work must be paid. the agreement might provide for numerous additional allowances and payments including shift premiums. which are discussed below. inflation exceeded 10 percent per year. W hat happens w hen a holiday falls on a vacation day or on a day of leave I 4 . mileage allowances. the union may seek to have the agreement provide that job classifications will not be changed for the term of the agreement. Key Considerations 7-12 lists issues relating to benefits. If benefits are included in the agreement. What happens if another leave. and it is common for the collective agreement to provide for greater vacation time than the legislation requires. life insurance. How is vacati on time scheduled/ Does the agreeme nt provide for a defined vacation period I Are emplo)'ees allowed to choose vacation times I Are vacation times a llocated on the basis of seni orit)'l 4 . drug expenses. including dental care. sentiprivate hospital care. or on I)' refers to the pa)'ment of premiums b)' the emplo)'er. What be nefits will be provided/ 2. Key Considerations 7-11 lists issues relating to vacations. disability protection. will there be an additional provision that provides that arbitration wi II be the mechanism used to resolve eli sputes I 6. How much will emplo)'ees contribute to the cost of benefits I Sample Articles 1. 1 Considerations 7-11 Vacations 1. What is the amount of vacati on time I 2. The emplo)'er shall provide the following benefits: (a) $75 000 li fe insura nce (b) denta l benefits in accordance with the 2010 O. there are many additional benefits that collective agreements may provide.Cha prer 7 The Collective Agreement 190 VACATIONS Employment standards legislation provides for a minimum amount of vacation time and pay for employees. T he vacation entitlement in the legislation is not very generous. The emplo)'er shall pa)' the premiums for insurance plans that provide the following benefits: (a) $75 000 life insurance (b) dental benefits in accorda nce with the 2010 O. fo r example sickness or bereavement. because the agreement does not incorporate the benefit provisions. and pension phms.DA. does the agreeme nt refe r to o r incorpo rate the be ne fits documentation/ 5. schedule 2. --~ \ Considerations 7-12 Benefits 1. will benefits provisions be set out in deta il in the agreement or will the agreement simpl)' require the e mplo)'er to pa)' insurance premiums that provide specified benefits I 4 . Will benefits be incl uded in the collective agreement or will benefit provisions be left outside the agreement/ 3.DA schedule ( . If a benefit issue would not be otherwise arbitrable. is take n during a vacation I Does the agreement provide fo r e mplo)'ees to obta in both the ( leave a nd the vacatio n timel \_ B ENEFITS In addition ro the lega lly req uired benefits such as the Canada Pension Plan to which employers must contribute. If benefits a re provided outside the ag ree ment. How is vacati on pa)' calculated I What fo rmula will be used I Will the formula refer to a numbe r of regular weeks' pa)' or to a percentage of earnings/ 3. eye care. it will be difficult to argue that benefits are part of compensation and do not have to be paid to other employees who are away because of a disability. as opposed to being provided to all employees on the basis of employment. in the agreement to ensure that the plan is not incorporated into the agreement. Employers may wish to structure benefits as part of compensation and avoid benefits being categorized as an employment entitlement. How benefits are referred to in the agreement will determine whether any dispures regarding benefits are dealt with by making a claim against the employer. In tllis situation. through the grievance and arbitration process. etc. but the employer provides benefits through an insurance carrier. the employer nlight try to obtain agreement on a clause to provide that disputes will be resolved through the appeal process in the insurance carrier's policy. or whether it is categorized as part of compensation. not through arbitration. This issue was considered in the court decision referred to in Labour Relations Issue 7-3. 3. the employer nlight attempt to leave benefits outside of the collective agreement or only agree to pay premiums in the agreement. Some collective agreements have provided for innovative benefits such as daycare and prepaid legal plans. If the agreement refers to a benefit handbook or other document that describes benefits. If benefits are included in the agreement. To do th is. the employer should ensure that all employees on leave are treated in the same manner. a grievance cam1ot be filed. The collective agreement outlines benefits employees are entitled to and the employer arranges insurance coverage. through the courts. 191 . the employee can file a grievance and an arbitrator determines the issue. A benefit plan or policy exists. In tllis situation. manual. a grievance cannot be filed. If benefits are paid to some employees who are not working. the employer might attempt to negotiate their removal. If there are current references to benefit handbooks or manuals. any claims must be made against the insurer. such as employees on educational leave. If benefits are provided as part of compensation. T he employer is obligated by the collective agreement to pay premiums for a plan. plan. and it is incorporated by reference into the collective agreement. Sample Article 2 in Key Considerations 7-12 illustrates this possibility. and an arbitrator determines the issue. arranging coverage through an insurance carrier. an arbitrator nlight order the employer to pay. 4. The answer depends on whether the item in question is viewed as a benefit that all employees are entitled to simply because they are employees. Employers should avoid references to a benefit handbook. Benefits are not referred to in the collective agreement. 2. Employers want to avoid grievances and arbitration relating to benefits. or using some combination of self-insurance and insurance coverage. T he employee can file a grievance. or against the insurance carrier.Chapter 7 The Collective Agreement The employer might provide benefits in alternative ways such as paying any amounts owing directly to employees (self-insurance). A question that might arise is whether the agreement may provide that benefits do not have to be provided to employees who are away from work on leave or because of a disability. In this situation. Accordingly. the agreement can stipulate that benefits are not paid to employees who are not working. Arbitrators have identified four possible scenarios: 1. it could be deemed that the benefit provisions have been made part of the agreement. any claims must be made against the insurer. Sample Article 1 in Key Considerations 7-12 illustrates this possibility. T hey would prefer that the employee make any claims against an insurer instead of the employer. The risk to employers with this type of provision is that if the insurer denies a claim. T he overtime provisions. and details regarding shifts. the employer has the authority to establish schedules. W hat lunch or break periods w ill be prov ided/ 4 . It could require employees to work overtime as long as the employment standards legislation . and details regarding shifts in the contract. start times. hours of work. W ill there be provisions for any add itional pay for particular shifts/ OVERTIME Key Considerations 7-14 lists some of the issues relating to overtime that will have to be addressed. and shift changes. it might be provided that notice will be given for shift and other scheduling changes. T he employer would prefer to avoid having workdays. The employer can impose overtime unless the agreement provides otherwise. and minimum rest or time away from work. have notice periods be shorter. The rules relating to maximum hours should not be confused with the separate requirements regarding overtime. Typically unions will seek to improve upon the legislated minimums in collective agreements. such as nights. Instead.Cha prer 7 The Collective Agreement 192 HOURS OF WORK AND SCHEDULING Employment standards legislation provides for maximum hours of work. The terms relating to hours. The agreement might also provide that a premium be paid for certain shifts. and avoid any compensation if adequate notice is not given. Key Considerations 7-13 lists some of the issues relating to hours of work and scheduling that will have to be addressed. which vary between jurisdictions. If the agreement specifically sets out such items. W hat notice is required for a shift change I 2. 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. minimum lunch or break periods. Unless the collective agreement provides otherwise. TI1e agreement might specify the workdays. This would be a provision the union would want and the employer would prefer to a void. W ill the agreement specify hours of work and shift schedules/ 3. deal with the separate issue of how much additional pay employees are entitled to if they exceed a specified number of hours. W ill the agreement guarantee a minimum number of hours that wil l be available for employees/ 5. Conversely. the employer would have to get the consenr of the union to make any changes. the employer would prefer to maintain as much flexibility as possible. The union would prefer longer notice and a provision that there will be compensation provided if the required notice is not given. referred to in the next subsection. hours of work. -~ \1 Considerations 7-1 3 Hours of Work and Scheduling 1. Employment standards legislation provides for minimum rules regarding overtime. focus on the issue of when and how many hours the employee works. Overtime legislation and collective agreement terms should be kept separate from hours of work terms and legislation. The agreement may provide for a guaranteed number of hours. which are referred to here. including Ontario. the agreement defined technological change as involving equipment of a different kind or nature. etc. It might be defined narrowly to include only new equipment that causes job loss. and will it vary with the number of hours or the day worked I 4 .Chapter 7 The Collective Agreement 193 Considerations 7-14 Overtime 1. T he definition can be extremely important because it will determine whether the notice and other protective measures referred to below are available. . will be placed on the employer imposing overtime: notice to employees. if any. TECH NO LOG I CAL CHANGE Labour relations legislation in some jurisdictions regulates the introduction of technological change into the workplace. In any article dealing with technological change. T he legislative provisions range from requiring the parties to submit any disputes relating to technological change to arbitration (New Brunswick) to requiring notice from the employer and mid-term bargaining in four jurisdictions (Canada. Saskatchewan. Will there be any add itional overtime compensation such as a meal or transportation allowance/ 6. Unions may push for terms that require an equal distribution of overtime or alternatively give priority to employees with more seniority. Manitoba. Employers would prefer that the agreement clarify that the remedy is the next opportunity to work. and British Columbia). Some arbitrators may award cash to an employee who has not been correctly allotted overtime. caps on the amount of overtime. or more broadly to include additional matters such as changes in methods of operations and techniques to complete the work. and employers would prefer to avoid such provisions to be able to maintain flexibility and reduce costs. If an error is made in the distribution of overtime. unless t he collective agreement imposes limitations. In jurisdictions without technological change legislation. Unions will seek to have agreement terms t hat require notice to employees or their consent for overtime. What restrictions. What is the rate oi overtime pay. if any. will be provided for regarding the distribution of overtime/ 5. the legislation does not deal with the issue. What rules. the employer will be able to introduce technological change relying on the management rights article. In other jurisdictions. consent of employees. instead of ordering the employee be given the next opportunity to work overtime. H ours of work provisions in employment standards legislation usually provide an exception for emergencies. Unions will likely seek collective agreement terms to protect against technological change causing job losses. will . I 2. In one case. a critical issue wiU be its definition. Employees do not have a right to overtime unless the agreement provides for it. and it was held that a change made to an existing computer system did not fall within the definition.rthe agreement specify if the remedy is an opportunity( ' to work or cashI and collective agreement provisions relating to the hours of work are complied with. How is overtime defined: Does overtime begin after a specified num ber of hours per day or per weeki 3. or if the employee is transferred to a lower-paying job. Key Considerations 7-16 summarizes the key issues relating to leave that have to be addressed. T he length of the leave varies across jurisdictions from one to five days. T he most restrictive type of provision might provide job guarantees for employees. job guarantees. W hat are the limi tations placed on the introduction of technological change: notice. If the employee's job cannot be saved. -\ \1 Considerations 7-15 Technological Change 1. Key Considerations 7-15 lists some of the issues relating to technological change that must be addressed. T he legislation usually provides for leave in the event of the death of specified relatives. Articles might provide for income protection in the event that an employee's job is reclassified as a result of the change. Unions may seek to have terms added to the agreement to provide that the employer will pay any difference between the allowance paid to jurors and the employee's pay. The agreement might require the parties to negotiate the implementation and effects of the change and refer the matter to arbitration if they cannot agree.shtml Employees are entitled to bereavement leave as provided in the employment standards legislation governing their workplace. and benefits of employees. However. or grandparent.gc . Another possibility is a provision for retraining and preference in future job openings. parent or guardian. most conunonly the employee's spouse. child. . retraining. Jury D uty Legislation provides that the employer must grant leave for jury duty and protect the job.194 Cha prer 7 T he Collective Agreement There is a broad range of protection that might be provided for employees if there is a technological change. sibling. the agreement might provide for a severance payment. Bereavement Leave Website for materni ty and 1>arental benefits information : http://www. 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. however. seniority. The agreement might simply require the employer to give a specified period of notice to the union. servicecanada. Most bereavement leave provided in legislation is unpaid. W ill the agreement conta in any provisions regarding technological change/ 2. the compensation paid to individuals by the court system for jury dmy is minimal. there are exceptions. income protection. negotiatio n and arbitra-/ tio n. W hat is the definition of techno logical change I 3. and it may depend on the nature of the relationship.ca/eng/ei/types/ special. Federally regulated employees who have been employed for at least three months are entitled to three days paid bereavement leave. ( severance pay ments/ '\ _ LE AV E T he collective agreement might provide employees with numerous types of leave. grandchild. If sick cred its are used. and the union may seek leave provisions greater than the legislated minimum. Will the agreement provide for personal leavel What limits. T he legislation also contains rules regarding notice to conunence the leave and to return to work. Personal/eave. will be placed on the employer's discretion to grant the leave/ Will there ' be limits on the le ngth oi the leave/ to Maternity Leave Employment standards legislation provides for unpaid maternity leave that ranges from 15 to 18 weeks depending on the jurisdiction. both parents are entitled to the leave. and is available for both birth and adoptive parents. T he unpaid leave should not be confused with the monetary benefits provided by the federal Employment Insurance A ct. notice to rewrn to work. Bereavement leave. Parental/eave. Union leave. Any collective agreement terms regarding maternity leave must at least meet the standards provided for in the relevant legislation."\ ···•.Chapter 7 The Collective Agreement 195 -. wi II the e mployer be req uired to pay employees/ 4 . for example. Will leave exceed any minimum provided fori n legislation I 3.. New Brunswick. restrictions on when the leave can commence. What leave will be provided for in the agreement/ 2. and provisions regarding extension of the leave. Sick leave. Pa rental Leave Employment standards legislation provides for paremalleave that ranges from 34 to 52 weeks. N ewfoundland and Labrador). depending on the jurisdiction. jury duty leave.• Considerations 7-16 Leave 1. Maternity leave. Any c ollective 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 Key Considerations 7-16. Wi II the agreement provide for both shortancllong-term leave/ What is the length of any leave/ How much noti ce is required/ How many e mployees at one time can be on leave/Is there a right to the leave or does the e mployer have discreti on to deny it/ 9. In other jurisdictions the person must have been employed for a minimum period of time. and restrictions on when the leave can commence. employees are entitled to maternity leave as soon as they start employment. how ma ny clays per month are allowed/ What happens to any rema ining cred its when employment is terminated/ If a leave with pay is provided. Sick Leave Although a few jurisdictions provide for unpaid sick leave (Canada. the leave must be split between the parents. How long is the leave/ What noti ce is required to commence the leave/ What notice is required return from the leave / What payments is the employee entitled to during the leave. In some jurisdictions. how lo ng is the leave a nd what is the rate of pay I 8.. for example. in others. T here are rules regarding eligibility that vary across jurisdictions. What a mounts. How lo ng is the leave/Is the leave pa id o r unpa id / Whose death will e ntitle the employee to leave I W hat happens if a death occurs while the employee is on vacation or some other leave/ 5. if a ny. to what exte nt will the e mployer have to "top up" benefits provided by employment insurance/ 6. T he legislation sets out requirements regarding notice to commence the leave. to what extent will the employer have to "top up" benefits provided by e mployment insurance I 7. How lo ng is the leave/ What notice is req uired to commence the leave/ What notice is required to return from the leave/ What payments is the employee e ntitled to during the leave. In some jurisdictions. if any. including Ontario. Employees entitled to maternity leave may also be entitled to additional unpaid parental leave. there is no legal requiremem for employees to be paid f 1"'- . 3. Persona l Leave In addition to the various specified leaves referred to. Employees have entitlement only to sick pay provided in the agreement. Employers would prefer that the agreement provide that the employer has sole discretion to grant or refuse leave. The employee will be entitled only to the sick credits accumulated. serve a jail sentence. Personal leave is often stated to be at the employer's discretion. UNION BUSINESS T he contract may contain terms relating to the muon's representation of employees. the agreement might provide for leave with pay. provided that it is made in good faith.or long-term. Key Considerations 7-17 lists issues in this area. the employer may grant the leave but does not have to. Employers may prefer to avoid this type of system so that they do not have to deal with the costs of paying out un used sick credits on termination. Tlus means that even though an agreement states that the employer may or may not grant the leave. an arbitrator held that an employer who denied a leave to serve a jail sentence had violated the petsonalleave article in the collective agreement because it had failed to establish it would be harmed if it granted the leave. Considerations 7-17 Union Business 1. some employees might abuse the system if they think they have sick credits accumulated that they should use even though they are not sick. Union Leave Collective agreements commonly provide for unpaid leave for union officers to attend to union matters.to allow for taking on a union executive position or serving the union in some other mmmer. 11 Utlions would prefer that the agreement confirm that the employer may not unreasonably deny a leave. specifying the length of the leave and the amount of the pay. it will have to show a valid reason to deny it.that is.to allow for attendance at union conventions and other meetings. the pay provided might be 100 percent of regular pay for the first week and 7 5 percent of pay for an additional 10 weeks. A re uni on officials allowed to conduct uni on business during work timel \_ . This type of leave can be either short-term. For example. Also. the agreement may provide for additional personal leave to attend to sick family members. It might provide that the length of the leave increases with seniority and the pay diminishes with a longer leave. and the days can later be used if the employee cannot work. 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. In one case. or for other matters. The 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. W ill the agreement require that union information be provided to new employees/ 2. and the decision cannot be grieved. or allow union meetings on ~the employer's premises I . W ill the agreement require the employer to provide bulletin boards.196 Cha prer 7 The Collective Agreement while they are off sick. Instead of a credit system. provide office space. allow employees cho ice Management Rights • Sho rt form that is specified to be subject to remainder of collective agreement • Requirement that management ri ghts be exerc ised reasonably • Long or detailed fo rm • Avoid requirement regarding reasonable exercise of rights (continued) . The agreement should deal with the issue of union officers conducting union business during paid working hours. Some agreements specify that a minimum amount of paid time be provided for a meeting with union representatives. Agreements may confirm that the union may hold meetings on the employer's premises. ensure that agreement provides for work to be done in emergencies and for training Term of agreements • Union may w ish to avoid a lo nger term unless a cost of living al lowance is provided • Longer term Union security: dues • Mandatory check-off oi dues for al l employees in the bargaining unit • Avoid dues check-off if legislation does not req uire Union security: membership • Mandatory uni on membership for all employees in the bargaining unit • Avoid mandatory union membership. FIGURE 7-10 Employer and Union Preferences for the Collective Agreement Union Employer Recogniti on • Broader description of bargaining unit so that part-time empl oyees and others are incl uded • Bargaining unit description that includes all oi a muni cipality so th at employees are covered by the collecti ve agreement if the employer moves • N arrower description. and summarizes possible union and employer preferences. require the employer to provide office space to the union. The employer may be required to make bulletin boards available for the union. exc lu sion of part-time employees. Some agreements.Chapter 7 The Collective Agreement 197 The agreement may require the employer to provide information about the union to new employees and introduce them to a union officer. Figure 7-10 lists the collective agreement terms we have reviewed so far. especially in the public sector. For example. The employer may wish to monitor the amount of time union officials are away from their jobs and attempt to negotiate limits on the amount of working time spent on union business. the agreement might specify that union stewards be allowed to investigate grievances and attend grievance meetings during working hours. students and others • Bargain ing units that are described by reference to location Gri evance and arbitrati on process • Longer time period for each union step • D irectory time limits • Avoid req uirement to specify collective agreement arti cles breached • Avoid complaint procedure prior to grievance • Union representatio n at all steps in cl uding any complaint meeting • Provision for exped ited arbitration • Shorter time period for eac h union step • Mandato ry time limits • Specify that arbitrator does not have authority to extend time limits • Requ ire sectio ns oi collecti ve agreement breached to be identified • Require complaint prior to gri evance • Avoid union representation at complaint stage • Require that exped ited arbitration be agreed upon by both parties Protecti on of bargaining unit work • Prohibiti on against superviso rs and others doing barga ining unit work. alternatively a prohibition that prevents others from doing work that would cause a reductio n in hours o r a layoff • Avoid restri ctions o n bargaining unit work. rely on legislation • Narrow definition of techno logical change • Less extensive protection such as notice req uirement Leave • Leave over and above leg islated minimum • Broader definition of leave terms such as "fam ily members" in bereavement leave • Leave as required by leg islation • Q ualifying provisions for leave el igibility Union Business • Time allocated for union orientation of new • Limits o n amount of time spent o n union business employees • Bulletin boards. w ritten reasons. avoid reli ance o n legislati on • Broad definition of techno log ical change • Extensive protection such as job guarantees • Avoid contract provision. • Benefit disputes subject to grievance • Benefit disputes not subj ect to grievance Hours of work and scheduling • Guarantees for hours of work • Hours or schedule specified in agreement • Avoid guarantees • Leave scheduling out of agreement Overtime • • • • • • • • Technolog ical change • Include in agreement. office space. use of employer premises for meetings • Prov isi on allowing union officers to conduct business on paid time Broad definition of over-time Overtime voluntary Rules regulating distribution Cash remedy for error in distribution of overtime Narrow definition of overtime Assignment of overtime Limit restrictions on distribution of overtime Opportunity to work as remedy for error in distribution . etc. and union representation • Avoid restri ctions so that discipline cannot by overturned o n a procedural technicality • Specific penalty provisions to el iminate arbitrator's authority to reduce discipline imposed Discrimination • Broad definition of discrimin ation • Ensure that BFOR defense is maintained Seniority • • • • Shorter probati onary period Probationary period specified in calendar days Provisions fo r super-sen iority Senio rity to be given mo re we ight: sufficient ability clause • Longer period for employment to be maintained whil e on layoff • Longer probationary period • Probationary peri od specified in working days • Seniority given less weight: relative ability clause • Shorter peri od for employ ment to be maintained w hile on layoff Health and safety • Spec ifi c prov isions in collective agreement over and above legislated minimum • Employer obligati on to pay for clothing and other protective eq uipment • Rely on provisions in health and safety legislation Wages • Ca II-i n pay: payment for a greater number of hours and higher rate of play than provided in legislation • COLA protection • Ca ll-in pay: Exemptions from call in pay for emergencies • Avoid COLA Holidays • Additional ho lidays over and above employment standards legislation • Avoid add itional holidays Vacations • Vacation periods longer than employment stand ards leg islatio n minimum • Cho ice in scheduling • Limit vacation • A llow for scheduling of vacations during periods of employer shut down Benefits • Additional benefits such as day care. alterna• Avoid any provisions so that ri ght to contract tively provide for restrictions on contracting out out is maintained Discipline and discharge procedure • Restrictio ns on the imposition of discipline such as notice.19 8 FIGURE Cha prer 7 The Collective Agreement 7-1 0 Employer and Union Preferences for the Collective Agreement (continued) Employer Union Contracting o ut • A complete ban on contracting out. shtml . customer satisfaction. and vacation provisions limit the employer's ability to use individual incentives to motiva te employees. and retirement preparation programs including counselling. some unions have sought collective agreement provisions for reduced workload prior to retirement (phased retirement). Unions generally prefer increases in wages or benefits instead of provisions for profit sharing. Provisions relating to telework might deal with issues such as providing equipment and reimbursement for expenses incurred in the home. For example. holidays. an agreement might. To deal with retirement issues. 199 Website w ith information rei ating to innovations in collective agreements: http.ca/ engila bour/ la bour_relations/ info_analysis/innovative/i ndex. and provide for a payment to employees if targets are met. T he wages. Protection against Liability In some occupations. Retirement With an aging population. post-retirement part-time work. which are explored further in subsequent chapters. benefits. quality improvement. Terms relating to contracting out and technological change might prevent changes to staffing and operations. The grievance and arbitration process provides unionized employees an avenue to challenge management decisions that most non -union employees do not have. employees face the risk that legal action may be taken against them. Alternatively. T he seniority and layoff provisions put restrictions on the recruiting and selection functions. many firms are concerned about issues relating to retiring employees and are establishing appropriate human resources policies. Telework is often dealt with outside of the collective agreement in employer policies. or health and safety. Joint or Union-. at either party's request. because the factors that determine the profit levels are beyond the control of employees. pre-retirement leaves and vacations.hrsdc. T elework Telework refers to employees working at their homes instead of the employer's premises. a police officer could be sued for action taken while carrying out their duties. Some agreements have share purchase plans that allow employees to buy shares and may provide for the employer to contribute shares on a specified ratio. provide for the establishment of a joint committee to deal with matters that arise during the operation of the agreement. which typically set performance objectives in areas such as financial return./jwww. Some agreements also have profit-sharing provisions that specify the amount to be paid to employees if a defined profit measure exceeds a specified level.gc.M a na gement C ommittees Collective agreements may provide for union-management committees to deal with specific issues such as job security and attendance.Chapt er 7 T he Collective Agreement A review of the contents of a coUective agreement and the employer concerns listed in Figure 7-10 will draw attention to the human resources management implications. Collective agreements may provide that employees will be compensated for any legal expenses or damages they are ordered to pay as a result of their lawful work. OTHER P OSSIBLE TER MS There are countless other possibilities for collective agreement terms. Compensation Some collective agreements have provided for gainsharing plans. We will briefly review some of them here. 170 expedited arbitration. Measures should be taken to ensure compliance with the agreement and avoid unnecessary disputes with the union. 170 Rand formula or agency shop. 175 union shop. Employers should monitor developments so that they are prepared to deal with union proposals and make proposals of their own regarding the content of an agreement. 170 maintenance of membership. 2. p . selection. Key Terms arbitration. p. Some agreements have established a fund to pay for the education of employees. p. p. Although collective agreements in different industries have common features. p. p . and labour relations legislation affect the content of collective agreements. 3. p. p. p. and employee relations. 167 relative or competitive ability. 176 voluntary terms. 17 3 bumping or bumping rights. 184 recognition article. 169 group grievance. 166 . 179 cost-of-living allowance (COL'\). p. p. 176 conrracting out. 169 articles. p. 177 mandatory terms. 166 mandatory time limit. 174 management rights. p. 168 grievance procedure. Collective agreements and arbitration decisions interpreting agreemems are everevolving. 166 bargaining unit work. p. who are familiar with the legislation that applies to their workplace. 176 open shop. p. 187 super-seniority. p. p. 177 seniority. Human rights. p. 176 policy grieva nce. 175 recall period p. 172 grievance. 186 check-off. Although there are some terms a collective agreement must contain. 174 sufficient or threshold ability. 184 directory time limit. Implications for Practi ce 1. 176 modified union shop. p. p. compensation.200 Cha prer 7 The Collective Agreement Training a nd Ed uca tion Collective agreements may provide for on-the-job training to upgrade the skills of employees for future job openings. p. p. 170 hybrid seniority p. 182 steward. p. 184 union security. nothing prevents employers and unions from attempting to incorporate innovative terms. p. Organizations should not attempt to copy the terms found in other collective agreements unless they determine how those terms have been interpreted and ensure that the terms will assist them to achieve their objectives. 189 deemed termination. p. 169 strike. 187 individual grievance. particularly recruiting. p. p. Agreements have included provisions for lending money to employees to buy personal computers and reimbursement for courses taken. p. Managers who are involved in human resources functions that might be affected by a collective agreement should receive training relating to the impact of the agreement. Organizations may need labour relations specialists. 175 closed shop. 187 reserved or residual rights theory. A collective agreement affects numerous human resources functions. 5. p. and require the employer to pay a specified amounr into it for each hour worked. p. 170 lockout. 4. p. p. p. p. p. some terms may be unique to a firm or industry. employment standards. or access to outside experts. . 4. the federal government did. Should the grievance be upheld? 2. How would the employer determine whether union dues should be deducted from the students' pay? 7. Describe the preferences of the union and the employer regarding any personal leave provisions in the collective agreement. the university relied on the fact that no bargaining unit employees were displaced. Identify the terms that must be included in a collective agreement. Why would an employer seek to have a specific penalty for misconduct included in the collective agreement? 5. Pursuant to a special federal program designed to provide work for handicapped students. the university allowed a student to work in the library cleaning books and shelves. student employees of the university were included in the bargaining unit). T he 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. A collective agreement provided that the union represented "aU employees of the university for whom the Association is the certified bargaining [agent).. they were told they would have to retire." The union certification provided that the union was certified as the bargaining agent for "all employees of the university . legislation provides that an employee's union membership cannot be terminated for any reason other than the failure to pay union dues. except .Chapter 7 The Collective Agreement Review Questions 1. religion. . Explain why a union would seek to have provisions regarding technological change included in the collective agreement. " [the exceptions are not relevant. How can an employer ensure that the time limits provided in the grievance processes will be enforceable? 3. When employees turned 65." and provide reasons why unions seek restrictions on contracting out. " Why would a union want to negotiate theremoval of this provision from the collective agreement? 4. This person did work that was the same as that of some bargaining unit employees. 6. The union filed a grievance that claimed the person was covered by the collective agreement. on both a full-time and a part-time basis. Also. .. A discrimination article in a collective agreement provided that there would be no discrimination on the basis of sex. 2.. A unionized employer is hiring students to work in its office and production departments for the months of May through August. etc. The university did not pay the person. should be paid the wages mandated there. In some jurisdictions. but they did not want to retire.. TI1e university's response was that the person was not covered by the collective agreement because the university did not pay them. including supervisors? 3. Can an employer assign work normally done by bargaining unit employees to employees outside of the unit. Do you agree or disagree with this policy? 6. 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? 8. age. 5. and should pay union dues. Explain the importance to the union of union security provisions in a collective agreement and the implications of these provisions to the employer. Explain the meaning of the phrase "contract out. Discussion Questions 1. Is there 201 . If there is more than one applicant for a job posting plant. 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 skill and ability of two contending employees is equal. The union claimed that there had been a technological change. You are part of a management team that is preparing to negotiate a renewal of a collective agreement. Her stepfather died on a Saturday. and accordingly certain protection in the collective agreement was available to employees. 10. b) One provides that the employer will make available specified dental. 9 . shall include automation. An employer and a union have been discussing what will happen if two employees are hired on the same day. eye care. Why would an employer want restrictions on bumping in the collective agreement? 12. mechanization. Decide which of the two provisions the employer should seek to have included in the collective agreement and explain why. A collective agreement provided that an employee would be entitled to five days' leave with pay upon the death of a parent. Explain how the present wording of the agreement may be unfavourable to management. If you represented the union. The employer has proposed that the tie be broken on the basis of the employees' birthdays. and you wanted to reduce the leave as much as possible. The concern is how to determine who has the most seniority. what leave would you claim Gwen is entitled to? If you were the employer's HR manager. what would your position be? If you were an arbitrator. what is the critical initial question or issue? 11. It has found two alternative provisions regarding benefits that could be included in the agreement: a) One provides that the employer is obligated to pay insurance premiums to provide certain levels of dental. Changes were made to the computer system that resulted in layoffs.the employee with the earliest birth date would be deemed to have the most seniority. b) One provides that the employee with the most seniority will be awarded the job provided he or she has sufficient ability to do the job. connected in a network via modem. 14. . what leave would you order be provided to Gwen? . relative ability. An employer is negotiating a first contract with a union. and means the introduction of equipment or material of a different nature or kind than that previously utilized. .. eye care. What could the employer's response be? 17. seniority shall prevail" . Explain any problems that could arise if this tie-breaking formula is adopted. explain which of the two provisions the employer should seek to have included in the collective agreement. Describe the preferences of the union and the employer regarding any overtime provisions in the collective agreement. what result do you expect? Explain your reasons. 15. A collective agreement provided for the following definition of technological change: "Teclmological change. and how the provision should be changed from management's perspective. "AU job vacancies shall be posted for three days. Gwen worked Monday through Friday. and process change. and other benefits.." The employer had an existing computer system in its two locations..202 Cha prer 7 The Collective Agreement a basis for the union to file a grievance? If this matter goes to arbitration. 13. Assuming that benefits will be provided. Distinguish between sufficient ability. and other benefits. For each one. The agreement contains the article set out below. 16. and hybrid seniority provisions. . Find the seniority article. After a decline in sales. An employee wi ll be placed on the list if he or she has previously held the classification and is out of plant on layoff unless he or she has expressly and in writing indicated his or her wish not to be on the list. except as specifically provided for in this Agreement. and identify how it is different from the one provided in this chapter. Articl e 2. for varying periods of time. Which articles in the coUective agreement will directly or indirectly affect job security ? Web Resea rch H uman Resources and Skills Development Ca nada publishes a quarterly analysis of recently ratified collective agree ments covering 500 or more employees that includes an overview of innovative workpl ace practices (http://www. 2010. Find the grievance and arbitration procedure. The union filed a grievance claiming th at the work being comp leted by General Maintenance should have been done by recalling employees on layoff. Grant Office Ltd. If you cannot. What will your response bel 2. A Temporary Work List will be created on a classification-by-classification basis. and the first employee to accept the offer wi ll receive it. "temporary work" shall mean work normally performed by employees within the bargaining unit. desks.01 Seniority with the Company shall continue to accrue duri ng an employee's period of layoff. In April 2010. the laid off and displaced employees shall be recalled in accordance with their bargaining uni t se niority provided the employee is able to do the work ava ilable. Article 2. as long as the empl oyee remains eligible for recall.Chapter 7 The Collective Agreement 203 18. Assume that you are the employer representative responding to the union grievance. 19.gc. the employer wi ll by telephone begin contacting employees with the requisite classification background in order of seniority to offer that temporary work. the company decided to paint the production area of the plant. the company entered into a contract with the General Maintenance Company. Obtain a copy of a collective agreement. This will not be exercised in such a way as to cause the layoff or permanent replacement or reduction in the regular earnings of any bargaining unit member. Questions 1.02 When work aga in becomes available in a classification. which hereby forms part of the collective agreement: 1. An employee on layoff shall not be entitled to any benefit conferred by this Agreement on regular employees. and maintenance of facil ities including painting.hrsdc. and cabinets. and identify what type it is. the union recognizes that the flexibility necessary to the Company's operations requires that such work be carried out from time to time. 3. To complete this project. manufactures office equipment including filing cabinets. between management and union representatives. Explain what you r decision would be. 111. Find the union security article in the agreement. refer to one of the websites at the beginning o f this chapter. Find four innovative coUective agreement terms. 2. u. One of the union's concerns is job security. Where the employer determines that temporary work is available.shtml). The employees work incl uded insta llation and repair of equipment. . by employees not within the bargaining unit. i. Grant Office Ltd.ca/engllabour/ labour_relationslinfo_a nalysislinnova ti velindex. For the purpose of this agreement. The only terms of the collective agreement that are relevant to the situation below are as follows: Article 1 The Company agrees that work normally performed by employees within the bargaining unit shall continue to be so performed by bargain unit employees. Assume that the grievance has proceeded to arbitration and you are the arbitrator. the company laid off eight maintenance employees on January 4 . A letter of understanding between the parties provided as follows: RE: TEMPORARY RECALL/TRANSFER Further to discussions held on November 5. 2009. The production employees at the company are represented by a union. However. and identify what type it is. the company and the union agree to the following. .. . Lane received word th at her son was very ill and had been taken to hospital by ambulance. she could have made other arrangements and accordingly they would be treated as vacation days. O n a Sunday mo rning." The collective agreement covering nurses at the hospital provided that employees were entitled to up to four days of special leave each ca lendar year w ithout loss of pay." The pressing necessity referred to a situation where there was ". by the exercise of reasonable judgment. W hat argument can be made by the employer to justify its decision? 2. Lane helped care for her son in hospital for two days and subsequently provided care for him in his residence after he was discharged. was sufferi ng from diabetes. o r to arrange in ad vance time off work w hen needed through other means such as shift trades.204 Cha prer 7 The Collective Agreement Mercy Hospital Christine Lane worked as a nurse at Mercy Hospital Monday through Friday.. w ho lived 800 km away in a city of 75 000 people. The special leave related to family leave or a pressing necess ity. a sudden or unusual circumstance that could not. explain what your decision would be. apparently suffering from pancreatitis. o r vacation. The contract provided that the family leave was " . If this issue proceeded to an arbitration hearing and you were the arbitrator. she was advised that only the first day she was absent would be viewed as being eligible for special leave. W hen Lane returned to work. The supervisor advised Lane to go ahead and they would "work it out later. have been perceived by the employee and re<1uires the employee's immediate attention or makes the employee's attendance at work impossible. Lane contacted her superv isor and advised him that she w ished to take time off to be with her son. to cha nge the time w hen they need to be in attendance. Lane's supervisor to ld her that for the rema ining days. Lane's son. Questions 1 . time off in lieu.." Lane we nt to her son and remained w ith him for o ne week. thro ugh o ther means. for use when the employee's attendance is necessary and they are unable. Outline the sub-processes of negotiation 110. Explain practices and procedures in traditional adversarial bargaining 110.113 6 .management relationship 105.Negotiators should look at the real problems facing companies and unions in today's global economy and try to develop creative solutions to solve these problems.Ira Lobel 1.113 7 .113 . Describe the importance of the union. 113 3. 1 . Describe the principles of interest-based bargaining 109. Identify the determinants and significance of bargaining structure 110 2. Identify strategy and tactics used in positional or distributive bargaining 110.113 5. Outline the implications of labour relations legislation for negotiation 110. 110 4. procedures. labour negotia tors are representing either senior management or bargaining unit employees. At the end of the chapter. vacations. If there had not been an economic crisis. Labour relations legislation may require. might affect the availability of goods and services for the public. an alternative. other features make them unique. was ratified by e mployees on May 25. Labour negotiations are subject to unique legislative requirements as well. Strikes and lockouts. unions. negotiations must cover at least one certified bargaining unit. When GM and the union could not reach an agreement by the deadline. the third round of concessions in less than one year. and they will likely be negotiating in the future. and job security.based approach will be considered. or the parties might agree to have contract negotiations cover several locations. the parties can agree to have contract .206 Chapter 8 Negotiation oft he Collective Agreement Th e negotiations that took place in 2009 in the auto industry were extraord inarily long and complicated because of the fina ncia l problems facing the automakers. T he process and the resulting collective agreements determine employer costs. which are occasionally a part of the process. H owever. or even more than one employer. To relate this to certification. thousands of collective agreements are negotiated in Canada. On May 21 . contract negotiations must involve at least one employer and one union representing employees working at one location. The 2009 negotiations illustrate the importance of the economic environment. In June.6 billion bailout from the federal and Ontario governments. Labour negotiations are often much more complex than other types of negotiations. it was extended. At minimum. If the government had not contributed financial assistance. This situation also illustrates the critical role of government in labour relations. health and safety. In March 2009. an employer might be dealing with one or more unions at one or more locations. GM might have failed. T his chapter will examine the practices. GM received a $10. benefits. the industry was faci ng a c risis and General Motors Canada was approaching the federal and Ontario governments for ass istance to stay in business. or include different unions. However. and tactics of traditional. employees. there may be several colleges in a province employing teachers at different locations. For example. T hat is. The agreement. T here may be more than one employer in a province or region with the same type of employees. The CAW and GM resumed negotiations. Every year. ind icating that there would have to be further concessions from the union before government assistance would be provided. and the public. and more. 2 Labour negotiations take place between parties who are in an ongoing relationship. employee compensation. because they cover many different issues: wages. 2009. referred to in Chapter 10. GM and the union reached an agreement that would be acceptable to the federal and Ontario governments. T he negotiation process is critical for employers. TI1e parties have a duty to bargain in good faith and cannot engage in a strike or lockout in most jurisdictions until they have completed a conciliation or mediation process. T he union and the employer w ill have to work with each other after the negotiation is completed. Finally. the federal and Ontario governments rejected the recovery plan proposed by GM. or several certified bargaining units. T hey must reach a settlement that their respective constituents will approve. facing a May 15 deadline imposed by the government. union securiry. Although Ia hour negotiations share some features with commercial negotiations. GM and the CAW negotiated a concessions package that was ratified by employees on March 11 . BARGAINING STRUCTURE T he certification process results in a union representing a specified group of employees working for an employer at one or more locations. the union would not have agreed to concess ions. adversarial collective bargaining. interest. CENTRALIZED VS _ 0 ECENTRALIZED BARGAINING An important feature of possible bargaining structures is the degree of centralization involved. and loca tions involved in contract negotiations. Other bargaining structures include combinations such as a single employer with a single establishment. which involves the negotiation of one collective agreement that will affect the various workplaces operated by the employer. Let us look at the most commonly used structures. and would be subject to different labour relations legislation governing contract negotiation. and there are three separate collective agreements. Industry bargaining is a structure in which multiple employers. unions. Centralization reduces the number of rounds of contract negotiations. The division of authority to legislate and administer labour relations between the provinces and the federal government is a faeroe. Quebec. rather. This structure is common in Canada. If an employer had one location in Ottawa and another a few kilometres away in H ull. • Single employer. single establishment. . bargain with a single union. The auto industry is an example of this type of structure. Negotiations commonly involve one union representing employees at one location dealing with one employer. however. the two establishments wou ld be organized in separate bargaining units in each province.Chapter 8 Negotiation of the Collective Agreeme nt negotiations cover more than one certified bargaining unit. Centralization is not a yes-or-no issue. T his type of structure might be found in hospitals where the hospitals in a province negotiate with a provincial nurses' tmion and the agreement covers all locations in the province. The employer may have more than one location or more than one union at a location. and establishments involved in contract negotiations. negotiations are conducted between the employer and a union representing one group of employees at one location. It has been referred to as dealing with the issue of "who bargains with whom. This bargaining structure is not common in Canada. depending on the number of employers. For example. Industry bargaining is a centralized bargaining structure in w hich o ne negotiation covers all employees in an industry. multiple establishments instead of a single establishment. Centralized bargaining refers to contract negotiations that involve one or more of the following: multiple employers instead of a single employer. Bargaining structure in Canada is generally decentralized. The existence of 11 Centralized bargaining refers to negotiations that cover mo re than o ne location. The contract negotiations for the three bargaining units are conducted separately. multiple establishments. however. and locations or establishments involved in contract negotiations. D ecentralized bargaining refers to negotiations between one employer and one unio n for one location. " 3 207 Bargaining stru cture refers to the num ber of unions. and multiple unions instead of a single union. and maintenance employees. • Single employer. employers. There may be a master agreement between the employer and the union and secondary agreements that involve only the locals at each workplace. single union. single union . bargaining unit. with multiple locations. they are rarely found in Canada . POSSIBLE BARGAI Nl NG STRUCTURES There are numerous possible bargaining strucwres. each of which is represented by a different union. kitchen staff. Bargaining structure refers ro the number of unions. at a hospital there might be separate bargaining units for nurses. Factors Affecting Ba rgaining Structure Bargaining structure in Canada is decentralized for a number of reasons. or employer. we should view negotiations as being more centralized or less centralized. employers. negotiating with multiple unions. and employees in other regions might not have the same concern. Bargaining structure is significant because it can affect the negotiation process. the union cannot strike one employer and force it to grant concessions to avoid losing business to the others. a decentralized bargaining structure-bargaining on a branch-bybranch basis. or all of the industry. H owever. In this tactic. with one set of negotiations between a body representing all colleges and the teachers' union. the bargaining for that unit will occur separately from other units unless the employer and the union agree otherwise. .would likely leave each bargaining unit of employees with very little bargaining power. If there are different workgroups or different locations included in the same set of negotiations. In one province. contract negotiations for schoolteachers may be decentralized. However. There is variation in bargaining structures across industries and provinces. it might make reaching an agreement more difficult. 4 Centralized bargaining in some countries has led to fewer work stoppages and less time lost to strikes. Significance of Ba rgaining Structure Whipsawing involves establishing an agreement w ith one party and then using the agreement to pressure others. the parties recognize the inflationary effects of wage increases. the negotiation for college teachers may be centralized. some Boards have established separate bargaining units for full -time and part-time employees. To facilitate organization. The bargaining structure might affect the relative bargaining power of the union and the employer.and then use this as leverage to get the others to agree to similar terms. with separate negotiations between numerous school boards and the teachers' union. T his in turn may affect their relationship with the employer. There may also be economic factors leading to decentralization. Some employee groups may perceive that their interests have not been adequately met in negotiations and they may be frustrated. In the banking industry. in Canada this has not happened . Some employers have recently attempted to move to decentralized bargaining so that they can deal with each establishment separately and perhaps gain concessions that they would not be able to obtain if they were negotiating with a bloc of establishments. meaning that a contract negotiation affecting a relatively small number of employees is not perceived to lead to inflation. Another factor leading to decentralization is the bargaining unit that Labour Relations Boards have deemed to be appropriate and certified. and separate bargaining units for employees at different locations in some provinces. Centralized bargaining might reduce the costs of contract negotiation because fewer negotiations are involved. In some countries. . Employers might also use whipsawing against unions. Once a certified bargaining unit has been established. If employers negotiate as a group.likely the one it can get the best deal from. In the same province. where bargaining is decentralized. a union negotiating with several employers might reach a settlement with one of them. centralized bargaining has led to a reduction in inflation. Conversely. and the relationship between the management and the union. the incidence of strikes and lockouts. In the past. This may be because in negotiations involvi ng larger units. the contract terms agreed upon.208 Chapter 8 Negotiation oft he Collective Agreement separate labour relations jurisdictions makes negotiation for a group of employees that are in different provinces difficult. some Boards have certified establishments in a municipality separately when there is no interchange of employees. these groups may have different priorities or imerests.tvlore centralized bargaining can affect the relationship between the management and the union and alienate employees. A group of workers in one part of a province might be more concerned with job security. there is a free-rider effect. Centralized bargaining may help the employer avoid the union practice of whipsawing. Richard Walton and Robert McKersie describe four subprocesses that might be involved in any bargaining situation: distributive bargaining. Distributive bargaining is a negotiation activity w hereby limited resources are divided between the parties. Although an employer might bargain separately with different employee groups. SUB-PROCESSES IN NEGOTIATION " Negotiation" conjures up thoughts of individuals confronting each other across a table. Instead there may be a standard prorated relationship between the lead and subsequent contracts. . DISTRIBUTIVE BARGA I Nl NG Distributive bargaining refers to activities and behaviours that are commonly associated with negotiation. attit udinal structuring.Chapter 8 N egoti ation of the Collective Agreement 209 IN FORMAL BARGAINING STRUCTURE There is an informal element in bargaining structure.likely the one it thinks it will be able to obtain the best contract from. both the union and the employer would like to see workplace accidents reduced. but there is much more involved. For example. Meetings between the parties are an important part of negotiation. The Canadian Auto Workers union selects one of the three North American auto manufacturers. Pattern bargaining has been common in the au to industry. In pattern bargaining. Even in cases where the formal structure is less centralized. A good example is the determination of wages: a gain for one party involves a loss for the other. one that is considered later in this chapter. a union negotiates an agreement w ith one employer and then attempts to have it copied w ith other employers. integrative bargaining. For example. in some provinces the union representing firefighters in smaller cities waits until the contract in a large urban centre has been negotiated and then negotiates a similar contract providing for slightly lower compensation. pattern bargaining does not mean the first or lead contract negotiated and subsequent agreements are the same. employers have a financial interest in reducing workers' compensation costs. It is used where resources are limited and there is a conflict between the parties. Some observers view inregrat ive bargaining as the basis for an alternative approach to bargaining. T his approach is referred to as interest-based or mutual gains bargaining. there may be factors in the bargaining situation that produce results or behaviours associated with more centralized bargaining. and then attempts to negotiate similar agreements with the other two manufacturers.as a target. and intra organizational bargaining. 5 We will briefly describe these elements and their implications. In A Behavioral T heory of Labor Xegotiations: An Analysis of a Social Interaction System. In addition to being concerned with employee safety. The strategy and tactics of distributive bargaining are discussed below. INTEGRATI V E BARGAINING Integrative bargaining refers to a form of negotiation or activities in which the parties' objectives are not in fundamental conflict and there is a possibility of joint gain. In integrative bargaining. Because distributive bargaining is based upon demands made by the parties or positions taken. it may be referred to as positional bargaining. negotiates a collective agreement with it . In some situations. where a union negotiates an agreement with one employer and then attempts to have it copied with other employers. the Integrative bargaining is negotiatio n in which the parties' objectives are not in conflic t and j oint gain is possible. Another aspect of informal bargaining structure is pattern bargaining. it might be difficult to grant wage increases to one group and not provide them to ot her groups. because they may know they have negotiated the best deal possible. focusing on interests. Mary Parker Follett developed the following illustration. The relationship between the parties may be a concern for a number of reasons. Perhaps one would say that the other got a previous orange. each sibling would demand the orange and would try to justify his or her position. and the other wanted it for the fruit inside. Each would find out why the other wanted the orange. T he first three su b-processes referred to activities between the union and the employer. An integrative approach. Union negotiators in particular must be concerned with obtaining the approval of the bargaining unit for any agreement negotiated.210 Cha pter 8 Negotiation of the Collective Agreement parties focus on problem solving and the interests of the parties as opposed to demands or positions.6 ATTITU Dl NAL STRU CTU Rl N G: SHAPING THE PARTIES ' ATTITUDES AND RELATIONSHIP Attitudinal struc turing refe rs to the r>arties' relationship and w hat they do to cha nge it. Within either side. The negotiators for the employer and the union must eventually answer to their respective constituencies. which are discussed in the next section. they may miss opportunities for settlement. In a distributive or positional negotiation. T his difference in information might lead to problems for union negotiators. Union negotiators may face a problem reconciling the expectations of employees with additional information that they are provided during the course of negotiations. The union negotiators will have to work to convince employees that the contract should be approved. The parties may have little or no trust. T here are a number of possible relationships between the parties. The relationship could affect the likelihood of reaching an agreement. Intraorganizational bargaining refers to activities within the employer or union organizations to build an internal consensus. The distinction between demands or positions as opposed to interests is critical to an understanding of the distinction between distributive and integrative bargaining. might improve the outcome for both parties. In an integrative negotiation. Some members of a bargaining unit may be more concerned with job security. Suppose two siblings have one orange that they both want. T hey might find that one of them wanted the orange to use the peel in a recipe. Each negotiator has to dea l with two sets of demands: those made by the other side and those made by the people they represent. Union representarives may go into negotiations demanding a significant wage increase. which bargaining unit members perceive the employer can afford. I NTRAORG AN IZAT IONAL 8 ARGAI N I NG lntraorganiza tion al b argaining refers to activities w ithin each side to build a consensus. The relationship could affect future negotiations and the administration of t he collective agreement. the siblings would determine what their interests were. the union bargaining team may be provided with financial information that shows the employer cannot afford the wage increase expected. The siblings would have to agree that one of the parties got the orange before. In negotiations. bur it does not meet the expectations of employees. or they might compromise and cut the orange in half. there may be differences of opinion regarding the objectives that should be pursued in negotiations and the methods that should be used. or be more or less cooperative with each other. Some employees may be more willing t han others to strike to obtain a favourable agreement. Attitudinal structu ring refers to the relationship the parties have and what they do to change their relationship. . while others give priority to a wage increase. Where the parties are hostile. a gain for one party necessarily involves a loss for the other. TI1e possible relationships between the union and the employer. may have to convince their constituents to ratify the agreement. containment-aggression.there may be room for an integrative approach on other issues. T he relationship could be a factor determining whether an agreement is reached. and collusion? Conflict The conflict relationship is the most hostile. and the chances of a strike or lockout are increased. The union views management as the enemy who is exploiting employees.will make distributive bargaining more difficult. cooperation. T he failure to reach a consensus on demands. acconunodation. A tactic or move aimed at dealing with an issue in one area might affect one or more of the other three. Containment-Aggression In a relationship classified as containment-aggression. If a negotiator in the process of distributive bargaining ma kes a concession in order to reach an agreement. this might affect the relationship with the negot iator's constituents. Trust between the union and the employer is extremely low. and after an agreement is reached. The union attempts to increase its influence. Intraorganizational issues affect negotiators. and the employer attempts to 211 . The parties dislike or hate each other to the point that there may be irrational behaviour to inflict damage upon the other. and the contents of the agreement.in ot her words. they are interrelated. the four sub-processes have been discussed separately. UNION-MANAGEMENT RELATIONSHIP The relationship between the union and the employer will vary depending on the views each party has about the other's legitimacy. Although some issues are distributive in nature-that is.Chapter 8 Negotiation of the Collective Agreeme nt So faJ. Some employees might be unwilling to approve an agreement if concessions have been made that affect them. the parties will not be able to move away from adversarial distributive bargaining. and the likelihood of a strike or lockout. With this type of relationship. T he relationship between the parties is important. because it might affect the type of bargaining the parties engage in. and the consequences of the relationship will be considered here. TYPES OF UNION-MANAGEMENT RELATIONSHIP S The relationship between the union and the employer can be classified into one of five types : conflict. each side will have to work to obtain a consensus on their demands. In reality. We will consider the union.management relationship further before proceeding with the negotiation process. 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. 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. Before negotiations. the employer grudgingly accepts the union. and the level of trust between the parties. The nature of the relationship is important. the factors determining the relationship. to resolve imraorganizational bargaining issues. This source of conflict has been elinunated in jurisdictions that have passed legislation requiring the deduction of dues. With this type of relationship. At the same time. hockey players had the lowest average salary in N orth American professional sports and received the lowest percentage of gross revenues. the employer may bribe muon leaders to avoid labour problems. Others are variables the parties do have some control over and might attempt to vary to change their relationship. There is also limited trust between the union and the employer. FA CTORS 0 ETERM IN I NG THE UNION. TI1ere is mutual trust. and there is a moderate amount of respect between them. and cooperative. Authoritarian personality types are typically more competitive. Technological innovation might lead to hostility when the employer seeks to implement changes tha t threaten job security. Personalities of Leaders Union and management leaders may have personalities that make them more or less friendly. This type of relationship may allow the parties to move away from traditional ad versa rial bargaining. Coopera tive In a cooperative relationship. there is a coalition between the union and the employer to pursue cotrunon goals and practices that may be illegal.MANAGEMENT RELATION SHIP Some of the factors that affect the union. C ollusion In a collusive relationship. Management may pursue unfair competition practices or improper payments to themselves.212 Cha pter 8 Negotiation oft he Collective Agreement contain the union. The legal environment might also affect the rela tionship. the parties completely accept each other's legitimacy and are willing to work together. Ex terna l Economic. Tlus type of relationship is the one most likely to be the basis for less adversarial integrative bargaining. trusting. each of the parties recognizes the legitimacy of the other. The issue of the deduction of union dues from the pay of bargaining unit employees has caused conflict between unions and employers. there is no true bargaining. .92 period. If the employer faces an economic downturn or increased competition. there will be pressure to be more demanding with the un ion. The parties view each other with suspicion and are mutually antagonistic. \Vhen an employer is dealing with a number of bargaitung units represented by separate unions. has been cited as being collusive. it appears that Eagleson enjoyed personal gain. In a collusive relationship. have lower levels of trust. it is possible that the employer will have a different relationslup with each union.management relationship are matters the parties have little or no control over. Accommoda tion In a relationship classified as accommodation. The union goes along with this situation and does not adequately protect the interest of employees. and Legal Factors T he competitive environment the employer faces might affect the relationship with the union. The relationship between the National Hockey League Players' Association and the National Hockey League during the 1967. it will be difficult for the parties to move away from adversarial distributive bargaining. In some cases. Management may attempt to undermine the union with direct cotrununication to employees such as newsletters and meetings. 8 During tlus time. T echnologica l. and are less tolerant of the views of others. while Alan Eagleson was the executive director of the players' union. selectio n of bargaining teams. A manager who has had a decision challenged through the grievance process and experienced crossexamination at an arbitration hearing may be uncomfortable with coUective bargaining. ' Fo r some public sector employees. the employer cannot change the terms and conditions of employment. elaborated upon in Chapter 10. Labour relations legislation provides that once a notice to bargain has been given. If either of the parties has had a negative experience with previous negotiations or the administration of a collect ive agreement. it could be more hostile. a nd preparation of dema nds might occur in a differe nt order. Some union leaders may have a basic mistrust of the market system that extends to resentment towards most managers. a rbitration must be used instead of a strike or lockout. is a prerequisite for a strike or lockout in most jurisdictio ns. Some employers may be dominated by free-enterprise individualists who do not believe in the legitimacy of unions.Chapter 8 Negotiation of the Collective Agreeme nt 213 Beliefs and Values of Leaders The social beliefs of union and management leaders may also be important. NOTICE TO BARGAIN The union or the employer can give a notice to bargain to the other. NEGOTIATION PROCESS Figure 8-1 provides an overview of the negotiation process. Ex perience with Collective Bargaining The relationship might also be affected by past experiences with coUective bargaining.'ment . Tius statutory freeze continues until fiGURE 8-1 The Negotiation Process Notice to bargain' Bargaining teams selected ' Preparation of demands' Meetings Conciliation I mediation' Agreement Arbitration' st_rike__/Lioc:=ko=u=t~--------------------------=~l--------~ L __ -: Impasse Notes 'The notice to bargain. 'Conc iliation or mediation. A s tatutory freeze means that the employer cannot change the terms a nd conditions of emplo. Moreover. This representative may be important. if the expiring agreement did not require overtime to be equally distributed among employees and it appeared that the employer favoured some employees. T he prerequisites for a strike or lockout are discussed in Chapter 10. operations managers. Union Bargaining Tea m T he union's constitution and bylaws may affect the composition of the union bargaining team. Bargaining teams may also include. Union Dema nds T he union will prepare contract demands after considering the items listed 111 Figure 8-2. because he or she may have more experience than local union officers in some cases. For example. PREPARATIONS FOR NEGOTIATION T he union and the employer team must do extensive work before the first meeting of the parties. T he size and composition of bargaining teams will vary according to the bargaining structure and the number of employees covered by the collective agreement. Both teams require individuals who will maintain solidarity and confidentiality. He or she 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 side. In some cases. These documents may provide that certain officers. the employer's team may include the chief executive officer or president. Each side can include whomever it wishes. and it is a breach of this duty to object to the presence of an individual on the other side's team. T he initial stages of the bargaining process may involve a significanr amount of time spent on posturing. are designated as part of the bargaining team. BARGAINING TEAMS T he union and the employer will each assemble a bargaining team. Each side will have to prepare its own demands and consider what the likely demands of the other will be. the experience with the expiring agreement will be important. The national or international union president may be the chief spokesperson in significant negotiations. Team members must not reveal the team's priorities or willingness to make concessions. or add. there may be disadvantages to this. The union team may also include experts in particular areas such as pensions and health and safety. Both sides have a duty to bargain in good faith. The union 1night refer to employee .214 Chapter 8 Negotiation oft he Collective Agreement the union has the right to strike or the employer has the right to lock out employees. however. the president of the CAW has been the lead negotiator when the union is dealing with the major automakers. and outline the process to select other team members. The spokesperson or chief negotiator must have persistence and outstanding listening skills. Where the parties are negotiating a renewal of the collective agreement. Employer Bargaining Tea m T he employer bargaining team may include a labour relations staff person or consultant. a financial resource person. For example. such as the local president. and others. the union would seek contract provisions governing the distribution of overtime. which would waste the president's time. as needed. a company president may not have the personality or skills required to be a good labour negotiator. experts in specialized areas such as pensions. The national or international union may provide a representative to be part of the team and act as a resource person. Chapter 8 FIGURE 8-2 Negotiation of the Collective Agreement Factors Affecting Union Demands 1. Experience with the collective agreement 2. Grievances and complaints filed by bargaining unit members 3. Arbitration decisions 4 . Input from bargaining unit members 5. Input from national or international uni ons 6. Economi c forecasts 7. Contract settlements, industry and local complaints that have arisen over the life of the previous agreement. If the union filed grievances that were lost at arbitration because of the wording of the agreement, the union would seek an amendment to the agreement. Some unions obtain specific membership input prior to negotiations through surveys and membership meetings. Tllis input may be required by union bylaws. T he national or international union may have recommendations for demands. T he union will attempt to obtain information regarding projected increases in the cost of living. Some sources of economic information were referred to in Chapter 2. T he Canadian Labour Congress and some larger unions develop economic forecasts. Unions will consider wage increases that have been provided in agreements in the industry and collective agreements in the region. Employer Demands T he factors affecting the demands of the employer are listed in Figure 8-3. T he employer will consider its experience with any expiring collective agreement. If the job posting procedure provided for in the agreement has caused delays in filling vacancies, the employer would seek a shorter notice for job postings. T he 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. Future business plans should be considered. If the employer is plamling 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. T he 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 O F THE BARGAINING TEA MS T he meetings between the employer and the union bargaining teams will often occur at a neutral location such as a hotel meeting room. T he parties meet in one room to FIGURE 8-3 Factors Affecting Employer Demands 1. Experience with the collective agreement 2. Grievances and arbitration decisions 3. Feedback from managers 4 . Business plans 5. Economi c forecasts 6. Contract settlements, industry and local 215 216 Chapter 8 Negotiation oft he Collective Agreement A cau cus is a meeting o f the union or employer bargaining team . discuss issues and will require additional rooms for separate union and management meeti ngs or caucuses. Stages of Negotia tion 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 ro short-circuit the process. T hree stages of negotiation will be referred to here. Stage One: Establishing the Negotiation Range. In this stage, each side explains its concerns and positions on the issues. Often the union will proceed first with the presentation of written demands and an explanation of the demands. Each chief spokesperson will attempt to present his or her side's position forcefully. Both sides recognize that the positions taken are flexible, some much more so than others, and that concessions will have to be made. In this phase, there may be some antagonism as the parties express their concerns and frustrations. T his phase may take several meetings. Each side is trying to see how the other reacts and determine what the other side may be willing to agree to. Stage Two: Search Phase. T his is the longest phase, when parties make concessions N o n -m o netary issu es are issues that do not involve a d irect fi nancia! cost Monetary issues are issues that involve a d irect financial cost moving towards agreement, and may rake numerous meetings over an extended time. It will involve bluffing and other tactics, as discussed below. Non-monetary issuesitems 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- relate to wages, benefits, vacations, etc.-are matters that involve a financial cost. T he non-monetary issues are usually considered first because they may be less contentious, and there may be some momentum built up by settling some of them. T here is also a very practical reason for the union to prefer to deal with the critical monetary issues last. If no agreement is reached, the ultima te 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 the third stage, a strike or lockout is inuninent. The parties are forced to make decisions and final concessions if they are going ro reach an agreement. This phase is shorter and might be marked by a series of last-Ininute proposals, counterproposals, and agreement. In some cases, the crisis phase may involve off-the-record meetings between the chief negotiators. In the crisis phase, the employer may increase a monetary offer or the union could withdraw a demand. T his phase may also involve the participation of a mediator to assist the parties to reach an agreement. DUTY TO BARGAIN IN GOOD FAITH Th e duty to bargain in good faith means that both the union and the employer must make reasonable efforts to reach agreement. Labour relations legislation in all jurisdictions imposes a duty to bargain in good faith on both the employer and the union. In most jurisdictions, there is a dual obligation to bargain in good faith and make a "reasonable effort to enter into a collective agreement." 9 The duty to bargain in good faith does not guarantee that a collective agreement will be reached. T he legislation does not require any particular concessions be made ro reach an agreement. If the reason for the failure ro reach an agreement is a conflict over wages, 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 Chapter 8 Negotiation of the Collective Agreeme nt 217 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 arbitration, if the failure to agree is caused by unreasonable demands. First contract arbitration is discussed below. Purpose of the Duty to Bargain in Good Fa ith The purpose of the duty to bargain in good faith is to ensure that the employer recognizes the union 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. T he 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 form of conrract negotiations or the efforts to reach an agreement, not the conrents 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 that would 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 a breach of the duty. Insisting upon any illegal condition in the agreement, such as a discriminatory wage, would also be a breach. Figure 8-4 lists various conduct that has been found to be a breach of the duty. Figure 8-4 Action Deemed to Indicate Bad Faith 1. Surface bargaining 2. Refusal to meet 3. Objections to composition of a bargaining team 4. Unlawful stri ke or lockout threats 5. Circumventing the union 6. Fail ing to provide information 7. Failing to explain proposals 8. Changing position without justification 9. Last-minute demands 10. illega I demands A distinction has been drawn between hard bargaining and surface bargaining. H ard bargaining refers to persistent attempts to obtain an agreement on favourable terms and is legitimate. 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 will usually be a breach of the duty. A distinction must be drawn Hard bargaining is a legitimate a ttempt to obtain a favo urable agreement. Surface bargaining is bargaining a imed at avoid ing an agreement. 218 Chapter 8 Negotiation oft he Collective Agreement between a refusal to meet in the early stages of negotiations and a refusal that occurs later in negotiations after the parries have exhausted an issue. If the parties have mer and discussed proposals, it is possible for a party to take the position that it will nor 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 L1bour 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. T here was an intervening change in legislation that required the employer to deduct and remit union dues. Tllis meant that the dispute over llllion dues was no longer an issue. T he 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. A party who takes the position that an item will not be discussed or included in the collective agreement will have to proceed carefully. Although the duty to bargain in good faith is a global obligation to negotiate an entire collective agreement, 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 issue involved. 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. 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. H owever, 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 inro an agreemenr. A refusal to explain one's position 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 rime. 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. In a case where the employer had decided to move some operations and did not reveal this information in the course of negotiations, it was found that there was a breach of the duty, even though the union had not asked about the possibility of a move. It appears that the employer does not have to reveal information when the matter is still under consideration. To avoid problems relating to the revelation 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. T he employer is allowed to communicate with employees and the community during negotiations; however, it is obligated to explain and discuss any proposals with the union prior to any such communication. It is permissible for the employer to send letters to employees, or put notices in newspapers to explain its position, provided the issues have been fully discussed with the union beforehand. T hese communications must not be misleading or threaten employees. It may be difficult to distinguish between permissible communications in wllich the employer expresses a view or informs, as opposed to threats or intimidation. Employers have been given more leeway when the bargai1ling relationship is mature. Chapter 8 219 Negotiation of the Collective Agreeme nt 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. Breach of the Duty to Barga in in Good Faith: Pr ocedure a nd Remed ies 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 resume bargaining. In a few exceptional cases, damages have been awarded. Boards have ordered damages equal to the amount of compensation employees would have earned if an agreement had been reached earlier 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. FIR ST CO NTR ACT ARB IT RATI O N At one time, there were a significant number of situations where a union was certified, and there were negotiations with the employer, but the parties could not reach agreement. In response to this, eight jurisdictions have added a provision to their labour relations legislation to provide that either the union or the employer may apply to have a first collective agreement settled by arbitration in some circumstances. First contract arbitration is now available in the federal jurisdiction, British Columbia, Manitoba, Newfoundland and Labrador, Ontario, Prince Edward Island, Quebec, and Saskatchewan. 10 This 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. The key points relating to the availability of this remedy and the contents of the agreement will be reviewed here. Availa bility of First Con tract Arbitration If the parties are unable to reach an agreement, either the union or the employer can apply for first contract 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. First contract arbitration has been ordered where employers have taken unreasonable positions without justification. It has been awarded where employers have refused to agree to any seniority provisions and have offered lower compensation to unionized employees than non-union employees doing the same work. Contents of the Agreement T he L1bour Relations Board or an arbitrator determines the content of the collective agreement after hearing representations from the parties. T he compensation and working conditions of similar employees are factors influencing the terms imposed. First contract a rbitra tion provides for the impositio n of an agreement w here efforts to reach a first contract have failed . 220 Chapter 8 Negotiation oft he Collective Agreement First contract arbitration 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. The employer will not be able to obtain a contract that entirely avoids seniority provisions. T he statutes require the term of the agreement to be between one and two years depending upon the jurisdiction. Significance of First Contract Arbitution First contract arbitration is significant for a number of reasons. T his remedy prevents employers from avoiding a union by adopting unreasonable positions in bargaining. In the jurisdictions that do not have first contract arbitration- Alberta, Nova Scotia, and New Brunswick- the employer could avoid the union in this manner. T he 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. The remedy also illustrates how the legal environment in Canada is generally more favourable to unions than it is in the United States, where first conrract arbitration is not available. STRA TE G IE S AN D T AC TI CS IN 0 ISTRI BUTI V E B A RGA INI NG A r esistan ce p o int is a negotiating party's bottom I ine--the least favourable offer it w ill accept. The target po int is the result a negotiating party hopes to achieve. A n in itial positio n is a party's fi rst offer or demand in negotiations. In distributive bargaining, each side may have three key "points" in mind for each issue as it enters negotiations: a resistance point, a target point, and an initial position. T he 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 3 percent. 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 hopes to ach ieve a 3 percent wage increase, it will have to demand more than that initially. 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. T he employer's points would be in the reverse order. The three points referred to for each party are illustrated in Figure 8-5, based on Richard E. Walton and Robert B. .McKensie's A Behavioral Theory of Labor Negotiations: An Analysis of a Social Interaction System. Where there is an overlap of the parties' resistance points as in Figure 8-S(a), there is a contract zone or settlement zone and the 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, as in Figure 8-5(b), 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. Chapter 8 Negotiation of the Collective Agreeme nt fiGURE 8-5 Contract Zone (A) I Management I I Union I +4 % Initial demand +3% Target point Resistance point +2.75% Potential Settlement Zone +2% Resistance point Target point+1.5% Initial offer +1% (B) I Management I I Union I +4 % Initial demand +3% Target point +2% Resistance point (No settlement possible) Resistance point +1% Target point +0.5% Initial offer +0% Sources: Based on Richard E. Walton and Robert B. McKensie, A Behavioral Theory of Labour Negotiations: An Analysis of a Social Interaction System Ne-.v York: McGraw-HilL 1965); Roy Lewicki, joseph Litterer, john Mi nton, and David Saunders, Negotiation, 2nd ed. (Homewood, IL: Irwi n, 1994). 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 union in the illustration is not going to announce that it wou ld go as low as 2 percent, because that is all it wou ld likely obtain. Each side will attempt to convince the other that its resistance point is higher or lower than it actually is. 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 poim. 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 221 222 Chapter 8 Negotiation oft he Collective Agreement finds otherwise, the costs associated with the resistance point have increased and the union may revise the point downwards 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 agreemem 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 upwards. 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. Over the course of negotiations, some or all of these positions are going to have to be changed to reach an agreement. All positions or demands made are not equal. Each parry 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. The opening positions in negotiations are significant. T here is research that shows that commercial negotiators who make more extreme opening offers achieve better results.11 This may be because the offer causes the other side to rethink 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 parry 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 takeit-or-leave-it first offer. T his 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. An employer must allow room to improve an offer later in negotiations. An employer who adopted Boulwarism would likely have to deal with complaints that it had failed to bargain in good faith . This approach could also harm the parties' relationship. Concessions When a first offer and demands are exchanged, a bargaining range is established. Subsequently there will be numerous concessions and counteroffers. A party who receives an offer may take the position that it will not respond with a counterproposal 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 However. social. this tactic involves one negotiator playing the role of the bad cop making threats and offering poor terms. Finally. Another tactic is the highball or lowball. In labour negotiations. However. or attacks on the other sides' competence or integrity. An example in labour negotiations would be an employer making an initial monetary offer that provided for wage concessions or a wage freeze. the union may think that if it delays. an example would be asking for additional vacation at the last minute when vacations had not previously been discussed. it can obtain a further increase. B A RGA ININ G POW ER The bargaining power of the union and the employer are important factors that influence the outcome of distributive bargaining. if the employer made three successive increases. Chicken refers to threatening the other side to force them to agree on terms that are favourable to the party making the threat. to 3 percent. although they are not recommended.empt to use an array of tactics to convince the other side to agree to their terms. Companies that supply services that cannot be stockpiled or prepared in advance would be in a weaker position. attempting to reach an agreement. 223 . The bogey 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. One study that examined the language in contract negotiations found that concessions were made quietly without drawing attention. In labour negotiations. Tius tactic may violate the duty to bargain in good faith. 13 Readers wishing further information should refer to a reference on negotiation. Negotiators may not draw attention to concessions they are making. An example would be management advising the union that if its offer is not accepted the employer will shut down operations. As the name suggests. and the other negotiator playing the role of the good cop. some negotiators may engage in intimidation and aggressive behaviour such as staged temper tantrums. Phrases such as "we will come back to you" may be used to signal that a party is willing to make a move at the next meeting. 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. The bargaining power of the union and the employer will be affected by external economic. Some negotiators may engage in a good cop/bad cop routine. Figure 8-6 lists factors that affect the employer's bargaining power: • An employer able to inventory product for sale at a later date is in a stronger bargaitung 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. T he nibble involves asking for a small concession on an item that has not previously been discussed in order to finalize the agreement. and then to 4 percent. This involves making an opening offer that is deliberately high or low. Concessions may be made by shifting positions from one meeting to the next instead of formally backing down in a negotiation session.Chapter 8 Negotiation of the Collective Agreement been increased to 4 percent. A party with more bargaining power should be able to obtain an agreement that is more favourable. then to 3. and legal factors and internal factors including the commitment of employees to the demands of the union. It is used to try to convince the other side that they need to revaluate their position.75 percent. 12 Hardball tactics Some negotiators may att. but a message has been conveyed that there is no further room for concessions. Some possible tactics are mentioned here. The tactics referred to here are outlined in Essentials of Negotiation. the offer still ends up as 4 percent. • Public opinion might affect the bargaining power of the employer. In most jurisdictions when the strike ends. Public opinion is especially important in parts of the public sector where voters may not re-elect political representatives. employers who can replace the output of one unit with that of another have more bargaining power. T he prohibition against the use of replacement workers is a controversial issue. referred to earlier in this chapter. This will be determined by the size of the employer's operations. which is referred to in Labour Relations Issue 8-1. employers are allowed to use replacement workers during a strike. . The economic environment may also be a factor. In the meatpacking industry. 4. there is a qualified restriction on the use of replacement workers. An employer who operates a chain of Tim Hortons outlets is in a stronger bargaining position when it negotiates with each outlet separately. such as in a refinery. the employer is in a weaker position. Interdependence of bargaining unit Competitive position of employer Time of negotiatio ns Ability to continue operations 6. the employer is in a stronger bargaining position. 5. • T he bargaining structure. Conversely. the bargaining unit is so large that it is not practical for the employer to use replacement workers. the employer may be forced to reconsider its position. If customers lost during a strike will likely return after the strike ends.224 Chapter 8 Negotiation oft he Collective Agreement FIGURE 8-6 Factors Affecting the Employer's Bargaining Power 1. Where the teclu10logy allows a few supervisors to continue operations. In the federal jurisdiction. In some cases. if the bargaining unit is an independent operation and other units can replace its output. such as school board trustees. • The competitive position of the employer refers to the possible loss of customers during a strike and their subsequent recovery. 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 time of bargaining in a seasonal business can affect the employer's bargaining power. • The ability of the employer to use replacement workers during a strike is a critical factor affecting the employer's bargaining power. the employer is required to reinstate employees who have been on strike. and legislation. a strike will have a greater impact and the employer is in a weaker bargaining position. the employer is in a stronger bargaining position. It would not be practical to replace 2000 workers in an auto plant. Invento ry levels 2. 3. Publi c opinion • If the output of the bargaining unit is required by other business units of the employer. the teclmology used. Bargaining strucwre 7. Legislation in British Columbia and Quebec prohibits the use of replacement workers during a strike. A construction employer would be in a weaker bargaining position in the peak season. If the public supports employees on strike and does not deal with the employer. might also affect employers' bargaining power. the employer is in a stronger bargaining position. In all other jurisdictions. • Public opinion may affect the union's bargaining power. employers in some jurisdictions have another opportunity to test the support of employees for the union. • If the strike will force the employer to shut down operations. Labour cost/total cost 7. • The larger the union strike fund. • If the timing of the strike will cause harm to the employer. This concept refers to the price-responsiveness of the demand for the product or service provided by the employer. the union has more bargaining power. An employer who thinks employees will accept a proposal the union has refused might use this provision. 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. • The price elasticity of demand for the employer's product or service was referred to in Chapter 2. it will have to restart negotiations and will likely have to improve its offer to obtain agreement. • If picketing causes customers and suppliers to avoid the employer. If the demand is less priceresponsive (inelastic). the more bargaining power the union has. the union is in a stronger bargaining position. Elastici ty of demand for product or service provided by employer 8. that offer becomes the basis for a collective agreement. labour relations legislation provides for the employer to have a vote by employees on the employer's final offer. Support of bargaining unit members 2. If a majority of the employees who vote supporr acceptance of the employer's offer. and any strike in effect must cease. In addition. In Alberta. All jurisdictions provide that a strike vote must be held. the union is in a stronger bargaining position. . British Columbia. Effect of picketing 6. Public opinion Figure 8-7 lists factors affecting the bargaining power of the union: • The key factor determining the bargaining power of the union is whether bargaining unit members are sufficiently committed to the issues involved in negotiations to go on strike. Timing of a strike 4 . but it should think about the consequences of losing a final offer vote before taking this step. • Where the labour costs being negotiated are a smaller part of the employer's total cost. If employees refuse to supporr a strike. Unions have sometimes sought the help of churches and other community organizations to rally public support against the employer. T he final offer vote can be held only once in a round of negotiations. New Brunswick. the union is in a stronger position. the union is in a stronger bargaining position. A strike at a banquet hall during the holiday season could seriously affect the employer. and Ontario. because the employer has the ability to increase prices without losing as many customers. Size of strike fund 3. the union's bargaining power is drastically reduced. If the employer loses the vote.Chapter 8 FIGURE 8-7 Negotiation of the Collective Agreeme nt Factors Affecting the Union's Bargaining Power 1.>loyees on a n offer made by the e mployer. Effectiveness of a strike 5. A final o ffer vote is a vote by e m. 20xx Fo r the Employer: For the Union: .line confrontations and vio lence. O ther terms of the collecti ve agreement shall be amended as provided in Schedule C. They argue that al lowing the use of replacement workers gives employers an unfair advantage in bargaining. FIGURE 8-8 Memorandum of Settlement Memorandum of Settlement Between _ _ _ _ _ _ _ _ (the "Employer") and _ _ _ _ _ _ _ (the "Uni on") The Union and Employer representati ves agree. The parties agree to use their best efforts to ensure that their principa ls w ill ratify this memorandum of settlement. which deals with strikes and dispute resolution. and picket. illustrated in Figure 8-8. it will typically be documented in a Memorandum of Settlement. hibitio n on the use of replacement workers during a strike.226 Chapter 8 Negotiation oft he Collective Agreement Should Labour Relations Legislation Prohibit the Use of Replacement Workers during a Strike? This question o bviously has produced different answers fro m unions and employers. The Benefit shall be as provided in Schedule B. 2. In most jurisdictions. Arti cle 10 shall be amended by add ing the following: A ll employees who are members of the bargaining unit shall. Unions support a general pro. Unions also contend that the use of replacement workers leads to prolonged and bitter strikes. MEMORANDUM OF SETTLEMENT AND RATIFICATION If the union and the employer reach an agreement. become union members not later than 30 calendar days after the start of employ ment. Dated the _ _ _ _ _ day of _ _ _ _ _. they may seek the assistance of a government-appointed conciliator or mediator.! 5.1 shall be amended to prov ide for 35 weeks of maternity leave. as a condition of employment. Would you support legislation that prohibited the use of replacement workers/ CONCILIATION AND MEDIATION If the parties are not able to reach a collective agreement. that the previous collective agreement [which expired on o r expires on I shall be continued subject to the following amendments: 1. subject to ratifi catio n. The term of the agreement shall be from to _ _ _ _ _ __ The wages shall be a provided in Schedule A. Opponents of legislation prohibiting the use of replacement workers contend that the legislation increases unemployment and leads to an imbalance in bargaining power. A bomb explosion at the Yellowknife mine in 1992 during a strike w here replacement workers were used caused the death of nine workers. [Exampl es: A rti cle 8. 4. The conciliation and mediation process is discussed in the Chapter 10. conciliation or mediation is required before a strike or lockout is legal. 3. 14 The Memorandum in Figure 8-8 refers to a situation where the parties have negotiated a contract renewal. a union might refuse to participate in workplace conunittees or might file more grievances. there may be a strike or lockout. The employer may be particularly interested in having the memorandum of settlement require the parties to use their best efforts to ensure that the agreement is ratified. final offer selection. T he process can be time-consuming and costly. and Quebec. the employer and the union will submit their final offer on outstanding issues to a neu tral arbitrator who will choose between their proposals. and may be required by the union constitution. Giving up the right to strike is a significant departure from traditional labour relations. is required by legislation in British Columbia. Final offer selection is elaborated upon in Chapter 10. For example. . a vote in which employees approve or reject a negotiated agreement. It may result in the perception that there has been a winner and a loser. and it has been criticized by some people in the labour movement. they likely would have each ended up with half of the orange. A ratification vote. including those who are not union members. if a positional bargaining approach had been used. It may harm the parries' relationship. the legislation provides that it must be conducted by secret ballot and that aU employees in the bargaining unit.Chapter 8 Negotiation of the Collective Agreement The Memorandum sets out the terms agreed upon and provides for the tentative agreemenr to be ratified by members of the bargaining unit and the employer. Positional bargaining may also produce results that are less than optimum if the parties resort to compromise instead of engaging in problem solving. Final offer selection has rarely been used in Canada. In a radical departure from traditional adversarial labour relations in the private sector. the Framework of Fairness Agreement between Magna and the CAW provides that there will be no strike or lockout if the parties fail to reach an agreement. are entitled to vote. Recall the example of the two siblings with one orange earlier in this chapter. it would set out aU of the contract terms instead of referring to changes in the previous agreement. Ontario. it is not required to do so. In one case where the memorandwn required the union to use its best efforts ro obtain ratification and the union executive committee campaigned against the agreement. Any outstanding issues will be referred to a form of arbitration. INTEREST-BASED OR MUTUAL GAINS BARGAINING Traditional positional or distributive bargaining has been criticized for a number of reasons. Unless the memorandum of settlement provides that the union is to use its best efforts to obtain ratification. except Quebec. the employer pursued a complaint against the union for failing to bargain in good faith and obtained an order directing a second ratification vote. FRA M EWO RK O F FA IRNE SS : AN ALTERN ATI V E APPROA CH TO N EG O TI ATI O N Figure 8-1 outlined the negotiation process and showed that if the parties are un able to reach an agreement. ratification votes are normally conducted. In other jurisdictions. If the agreement was a first contract. A ra tifica tio n vote is one in w hic h employees approve or reject an agreement that has been negotiated . As the name suggests. In the provinces requiring a ratification vote. the parries wiU have to resume negotiations. with negative consequences for future negotiations and the administration of the agreement. If the employees reject the agreement. Manitoba. Focus on Interests. Interests are the reasons behind demands or positions. and Bruce Patton in Getting to Yes: Negotiating Agreements Without Giving In. including domestic relations. the other may want the peel." Getting to Yes outlines tactics to pursue the problem. and fears. productivity. and is based upon the principles outlined by Roger Fisher. not the attitudes or behaviours of the people we are dealing with. It is clear that the parties will have some interests that are different. Asking critical questions such as "Why?" or "Why not?" can identify interests. We will now review the principles of interest-based bargaining. To separate the people from the problem. Invent Options for Mutua l G a in T his principle is founded on the basic concept that there is often more than one solution to a problem. desires. This is a critical distinction. it is based on the four principles discussed below. In fact. and it is recommended to the general reader. William Ury. A demand or a position will set out a specific solution to an issue instead of leaving the door open to different solutions. consider an illustration of interest-based bargaining. 15 The book is not limited to labour negoti<ltions.228 Chapter 8 Interest-based bargaining is an 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. One party may want the orange. negotiators should avoid placing blame and thinking the worst of the other side. Interests will also be identified if one of the parties takes the lead and talks a bout its own interests. Separate the People from the Problem T his point emphasizes that negotiators are people who have emotions. The other side's ego and feelings must be taken into consideration. Interests can include needs. It may be referred to as mutual gains bargaining or principled negotiation. values. approach to negotiations in w hich the parties use problem solving and attempt to find a settlement that produces gains for both. it provides principles and tips that can be used in any conflict situation. T hese items should be viewed as problems the parties have to address together. and needs. concerns. Union leaders should think in terms of the issues and not assume that management is "out to get them. In most negotiations there is an issue of substance in dispute and a relationship to be concerned with. Steps must be taken to generate alternative solutions and to avoid . and it is especially important in labour negotiations where the parties will have to deal with each other after negotiations have been completed. Management should not attack the union because there are attendance. such as having individuals sit on the same side of a table focusing on an issue on a board in front of them. Spouses who are dealing with the question of where to go on a vacation have to be concerned with both their destination and what the discussion does to their relationship. or quality issues. Not Positions T he difference between interests and positions was previously referred to when the distinction between distributive and integrative bargaining was made. As the statement of the principle suggests. and refer to the adoption of this approach to union-management relations. The best illustration of this may come from outside of the area of labour relations. The people or relationship problem is important in most negotiations. Negotiation oft he Collective Agreement PRIN CI PLE S FOR INTEREST-BASED BARGAINING FR O M GETTING TO YES Interest-based bargaining does not mean being soft. the problem should be the focus of attention. agreement is only possible because the parties have different interests. providing higher-paying jobs. However. If the parties adopted an interest-based approach. the parties should not split the difference. It is based upon an example provided in Beyond the W?alls of Conflict: Mutual Gains for Unions and Management. the agreement also provides that in the event that a new job is created.Chapter 8 Negotiation of the Collective Agreement starting the evaluation or judgment of alternatives too early. T hey would consider their interests instead of positions. and Patton mention various tactics to develop options. Note that both parties gain using this approach. Ury. Insist on Using Objective Criteria The fourth principle is that the parties should base their choice or agreement on some objective criteria. incorporating the principles noted: (1) identify the issues. 229 . (3) generate alternative solutions. and testing for job candidates. In Getting to Yes. The employer views this as a new job and claims that it can conduct an open competition. and the other would lose. The employer wants to introduce new technology that requires employees ro have exceptional spatial reasoning and visual acuity. An interest-based solution might involve the following: • allowing all interested employees to apply • offering training to employees on the basis of seniority • testing candidates after completion of the training • providing jobs to employees who successfully complete the training. T hey would view this situation as a problem to be solved. providing training for the job. they would proceed differently. and an arbitrator would determine whether the job was new. If the builder said it was using a two-foot foundation and the customer wanted a six-foot foundation. and has obtained access to training that might not have otherwise been provided. such as designating a minimum specified time for the generation of solutions and brainstorming techniques. (2) explore and clarify interests. 16 Suppose that a collective agreement between an employer and a union provides that jobs are awarded to employees with the most seniority who have sufficient ability. a dispute between a builder and a customer over the depth of a foundation is referred to. Fisher. T hey should refer to the objective criteria that establish what is required for the building. If the parties followed a traditional. The employer has ensured that employees doing the work have the skills required. In order to proceed with mutual gains or interest-based bargaining. it is likely that a grievance would be filed. T hey should avoid having one party impose their wiU or falling back upon a compromise. positional approach. INTERE ST -B ASED BARGAINING: AN ILLU STRATION T he following situation illustrates mutual gains or inrerest-based bargaining and how it is different from the traditional. and increasing the challenge and satisfaction involved in jobs. the parties will take four steps. The union has been able to protect the interests of employees with more seniority. T he parties would explore or invent options that might include eliminating the seniority provisions for the job in question. adversarial approach. Either the employer or the union would win. T he union views the job as a modification of a current job and claims that the job should be filled on the basis of seniority. The interests the parties might identify would include increasing efficiency and quality. and (4) evaluate the solutions and determine agreement. the employer can fill it by holding an open competition among employees. The parties may wish to improve their relationship to facilitate contract negotiations and the administration of the agreement. There may have to be a sigrlificant shift in attitudes by Canadian unions and employers before it is widely adopted. p.20 Some unions and employers have used interest-based bargaining for as many issues as possible. p. Union representatives should take steps to ensure that bargaining unit members perceive that the bargaining team has achieved the best deal possible. the Communications. The parties could also use a facilitator to guide them in the process. To use interest-based ba rgaining. 207 decentralized bargaining. Unions that are involved in cenrralized bargaining wiU have to ensure that the interests of all employees are being addressed. employment stability. p. The relationship between the employer and the union can affect negotiations. Energy and Paperworkers Union and Northern Telecom used mutual gains bargaining to avoid a shutdown and layoffs. 210 bargaining structure. sometimes in crisis situations. in their opinion. Bargaining structure is a significant variable affecting negotiations. 216 centralized bargaiiling. the employer and the union should engage in joint training before proceeding with interest-based bargaining. 21 Some unions are suspicious that interest-based bargaining is a device that employers will use to obtain concessions from the union. and other benefits. 2 . 17 There are others who view it as simply a reaffirmation of sound bargaining practices. 207 distributive bargaining. 5 . 209 . p. a few unions and employers have used it. 19 At this time. Key Terms attitudinal structuring. and reverted to traditional positional bargaining on monetary issues. Unions and employers could consider interest-based bargaining as an alternative to traditional adversarial bargaining. For example. Serlior management must ensure that the employer bargaining team is provided with the information that it requires. a national survey revealed that one-third of management negotiators and one-half of union negotiators reported using interest-based bargaining. when we return to the question of the extent to which employers and unions can develop a more cooperative relationship. Readers who are interested in pursuing a mutual gains approach could refer to In Search of the Eighteenth Camel: Discovering a Mutual Gains Oasis for Unions and Management. good negotiators have always sought creative solutions to mutual problems and interest-based bargaining is not new. Union and employer negotiators need to be concerned with the relationship between themselves and their constituents. Employers can join associations to bargain as a group and avoid whipsawing by unions.230 Chapter 8 Negotiation oft he Collective Agreement ADOPTION OF INTEREST -BASED BARGAINING Interest-based bargaining has some proponents who think it is the key to labour peace. In the United States. T he possibility of its further use will be considered again in the final chapter. Implications for Practice 1. p. 18 In any case. though interest-based bargaining has not been extensively used in Canada. the parties must invest time and money in training. 207 caucus. 4. 3. Unions and employers must ensure that they comply with the legislative obligation to bargain in good faith. p. and intra organizational bargaining? 5. 210 Negotiation of rhe Collective Agreeme nt monetary issues. 209 ratification vote. Identify the procedures the union and the employer will likely follow in the course of preparing for negotiations. 207 initial position. 220 whipsawing. Two months prior to the expiry of the current collective agreement.management relationship? 6. p." a) H ow can the union proceed? b) Explain the outcome you expect. p. 10. 216 non-monetary issues. and the employer sent a note directly to employees that it was not able to negotiate because it had encountered a " major financial problem. Explain the significance of the pattern of concession-making in negotiations. p. What are the distinctive features of labour negotiations? 2.Chapter 8 duty to bargain in good faith. p. p. 220 interest-based bargaining.management relationship for negotiations? 2. Why should a negotiating party not lead with its best possible offer? 3. 11. Briefly describe four employer or union actions that would be a breach of the duty to bargain in good faith. 217 industry bargaining. p. p. What are the factors affecting the union. and why are they important? 9. 208 Re vie w Questions 1. and why do you think some jurisdictions have not made provision for first contract arbitration in labour relations legislation? 5. 209 intraorganizational bargaining. 213 surface bargaining. p. attitudinal structuring. 216 pattern bargaining. p. p. What is the significance of first contract arbitration. p. Outline the possible composition of a bargaining team representing the employer and the union. 228 integrative bargaining. 8. What are the possible stages of negotiation. 220 statutory freeze p . p. p. Describe hardball tactics that a party could use in negotiations. Discussion Questions 1. 12. p. 227 resistance point. p. 217 target point. 231 . Why is it important that labour relations legislation provide for a duty to bargain in good faith? 4. 219 hard bargaining. Identify the principles for interest-based bargaining. What is the significance of the union. 7. a union gave the employer notice to bargain. 225 first contract arbitration. What is bargaining structure. What is the meaning and significance of each of the following: integrative bargaining. p. p. The parties could not agree on any meetings dates for negotiation. 216 final offer vote. Why is most contract negotiation in Canada decentralized? 4. distributive bargaining. and how can it affect negotiation? 3. ca) on this issue. How would you resolve it using distributive bargaining. and how would you resolve the dispute using integrative bargaining? 9. (d) Our concern is for the job security of our members. where there is a contract or settlement zone. or the workplace. Consider a disagreement or dispute you have had with someone at home. Why might an employer be opposed to the introduction of interest-based bargaining? Web Research T he question of whether legislation should prevent the use of replacement workers during a strike is controversial.canadianlabour. . (e) We need flexibility to meet family responsibilities.232 Chapter 8 Negotiation oft he Collective Agreement 6. ca/home) and unions to the Fraser Institute (wvvw. Unions refer to this as "anti-scab" legislation. (c) We need a wage freeze to remain competitive.fraserinstitute. target points and initial offers. 7. Contrast the views of the Canadian Labour Congress (http://www. 8. (b) We are concerned about the effects of the new machinery on our employees. and which are demands or positions? (a) We need to reduce our costs by 5 percent by contracting out the work of Department A. Which of the following statements are interests. school. For the issue of wages. give an example of the union and employer resistance points. (f) We need flextime to meet family responsibilities. 65 percent component of the wage increase was replacing the uniform allowance and was not actually an increase. employees approached the unio n w ith questio ns." The union responded to the employer's memo in a letter that stated the employer's claim that the wage increase was 14. There were also questions about the wage increase and unifo rm policy. the parties had several negotiation meetings. however.65 percent) to pay rates (a permanent increase. which was discussed w ith the union on March 15.65 percent misled employees because the . We have offered to continue meeting w ith the union but no further dates have been agreed to by the unio n at this time. The union also indicated that it would be seeking a strike vote and approval for a strike from the natio nal union. however. Questions 1. The written material from the union indicated that the employer was proposing to delete the existing uniform allowance and replace it w ith a 65 percent increase in pay. and the employer's proposal based on wages would lead to employees rece ivin g different amounts. The union indicated that it was not w i lling to agree to the employer's terms and doubted if there was any point to further talks. restrain intimidate. and to pay sick leave from day one if an employee is hospitalized .. and a three-year contract. This is a summary of our offer to settle the contract. . including by communicatio n. the employer provided employees a memo w ith their pay cheques that set out the employer's position. The employer sent a letter to the union setting out the terms of the proposal outlined in th e meeting o n March 15 and offered to meet again. the unio n filed a compl aint w ith the Labour Relatio ns Board alleg in g that the employer's memo was an unfai r labo ur practice. W hen the empl oyer did not rep ly. Employees asked why the memo had come from the employer instead of the unio n. Over the years. The most recent agreement expired on Apri I 1.65 percent increase in pay. W ill the unfair labour practice complaint by the union be upheld / Explain. the union and the employer were able to negotiate a series of collective agreements w ithout any stri kes or lockouts. Prior to the expiry of the last contract. an amendment to vacation pay cheques to comply w ith employment standards legislation. threaten or coerce an employee in the exercise of any right conferred by this Actto fa il or refuse to bargain collectively with [union) representati ves . and a uniform allowance. You can also obtain additional informati on about this offer from the union. The union advised employees that talks had broken off and provided them w ith a written summary of the unio n and employer positions. At a bargaining sess ion o n March 15. the employer bargaining team advised the unio n that it was not able to make any further concessions and any agreement had to be based upon the employer's proposals on the outstanding issues including wages and uniforms . Management is asking for deletion of the current uniform allowance. The unio n sent a letter to the employer claiming that the employer had v iolated the provisions of labour relations legislati on. the union argued that the . Furthermo re. they were not able to reach an agreement on several key issues incl uding wages. The memo included the following: 'We want all staff to know what the employer has proposed to your union on the remaining issues.65 percent wage increase could not be viewed as a simple substitutio n for the uniform allowance because under the previous agreement all employees received the same uniform allowance. the unio n held a meeting w ith employees to update them on negotiations.. it reiterated that the employer was not able to make any further concess io ns. sic k leave. not one-time money). Management is offering to add the value of the uniform allowance (." After the memo was issued. 201 0 . O n March 19.Chapter 8 Negotiation of the Collective Agreement 233 Kelowna Retreat The Hotel Workers Unio n was ce rtifi ed as the bargaining agent for employees at the Kelowna Retreat in 1995. a 14 . The employer had actually proposed that the uniform allowance be replaced w ith a .65 percent wage increase over three years. to interfere w ith. w hich prov ides as follows: "I t shall be an unfair labour practice for an employer to in any manner. reduction of sick leave from 12 days to 8 days per year. The union also stated that in v iew of the employer's positi on it would be conducting a strike vote. O n March 18. Prio r to the expiry of thi s f irst agreement. Jones selected the bargaining team and instructed it not to make any concessions before consulting with her. addresses of employees. This proposal was eventually w ithdrawn on the basis of assurances from the employer's bargaining team that the company would not be relocating its operatio ns. The sole owner and general manager of Plaza Fiberglas was Emily Jones. Subsequently the co mpany approached some employees and offered tl1em higher wages to work at the new location. and personnel director represented the employer. The United Stee lworkers of America was certified to represent Pl aza's produ ctio n employees. It was later determined that the decision to move the molds had been made previously by Jones. W ith respect to seniority. The parties could not agree on wages. The union objected to this provisio n because it might prevent an arbitrator fro m reinstating an employee. N ew Brunsw ick. however. accountant. The employer wanted the agreement to be amended to provide that a violation of any company rules would be suffici ent reason for discharge. The company moved molds that were used in the production process to another location outside of the municipality to which the union's certification referred . Is there any basis for the union to file a complaint with the Labour Relations Board I Refer specifically to each of the items referred to: rules. the union and Plaza began negotiations for the renewal of the collective ag reement. To avoid a problem if the company moved. the expiring agreement provided for sen iority on a company-w ide basis. The company rejected a union proposal that the contract require the employer to provide an updated list of employee names and addresses twice a year. W hat remed ies could the Board o rder for any violatio ns of labour relations legis lation by the employer I . 2. The negotiations between the parties did not produce an agreement. and the hiring of employees to work at the new location. wages. The employer proposed th at this be changed to a departmental basis. rules.234 Chapter 8 Negotiation oft he Collective Agreement Plaza Fiberglas Plaza Fiberglas is an auto parts manufacturer situ ated in Moncton. Questions 1. and a first contract was negoti ated between the union and the employer. or the provision of names and addresses to the union . she had not told the bargaining team about this decision. A bargaining team composed of the employer's solicitor. the union had proposed in a previous negotiation sess ion that the recognition clause in the agreement be amended so that any move o r relocation within 80 kilometres of the existing plant would be covered. w ho maintained close control over all aspects of the company's operatio ns. seniority. seniority. 107 7 . 32. 116 6 . 90. 106.103 .Jeffrey Sack 1. Outline the procedural and legal aspects of the arbitration process 110. Explain how seniority might affect the placement. grievance arbitration is a fair.Grievance arbitration involves the adiudication by a neutral third party of issues relating to the interpretation. 1 .116 5 . 105 2. Apply discipline in compliance with the collective agreement and the law 89.96. State problems with grievance arbitration and identify alternatives 3.115. Outline the formal and informal steps of the grievance procedure 3. binding and independent mechanism for resolving labour disputes without a work stoppage. 108 9 . 96. 106. Identify possible Iimitations on the exercise of management rights 96. Explain the significance and functions of the grievance and arbitration process 103. layoff. and recall of employees 96. Describe the disciplinary measures that are available to the employer 89. It is a substitute for the right to strike dr4ring the term of the contract. 102 8 . 96. In short. 1OS 3.91' 96. application or alleged violation of the collective agreement. Describe the union's duty of fair representation and indicate how the employer could be affeded 29 10. 113 4. Discuss the implications of human rights legislation for the administration of the colledive agreement 29. the arbitrator found that the hospital's position on nasal piercing was unreasonable and allowed the grievance..___..." The hospital established a dress code that contained the following restrictions relating to jewellery: "Acceptable jewellery includes wedding bands (plain or with small set in stones). the application of the arbitration process to some key issues including discipline and seniority.. The collective agreement between the hospital and the union provides as follows: "3... promoting the transfer of bacteria. it being understood that the hospital will discuss any such changes w ith the union in advance. ' Complaint supervisor Complaint Em1>loyer replies" Employer replies· resolved or or ... At the arbitration hearing. presented to '.. ·The collective agreement provides a time limit for each step in the grievance process and replies from the employer.. withdrawn Time limif specified in agreement J Complaint resolved or withdrawn Step 3 .. Time limif Grievance presented to specified in a higher-level employer agreement reprensentative 1 provided in agreement.--.. who was accepted by the union and the employer as an expert witness.________ . alter. Time limir Possible specified in Grievance presented to specified in Grievance presented to requirements for agreement supervisor or employer agreement a higher-level employer representative provided complaint to be 1 representative 1 in agreement..---._________.. and alternatives to arbitration.01 The union acknCMIIedges that it is the exclusive function of the hospital to ... Time limir . The Director of Clinical Services... Complaint Employer replies· resolved or . effectively nullifying the hospital's rule regarding nasal piercing. also testified that it was her opinion that nasal piercings increased the risk of contamination... The employees filed a group grievance asserting that the hospital policy was not reasonable._.. a registered nurse.. Figure 9-1 sununarizes a grievance procedure that has three steps.. one witness for the employer. The Manager of Health Protection and Promotion from the regional health authority.. The employees working in food preparation and delivery at the hospital are represented by the Christian Labour Association of Canada. T his chapter will consider the nature and significance of the grievance procedure. The employees found that remov ing and re-inserting the nose studs was difficult and painful.. She also referred to three other healthcare facilities that had policies prohibiting the wearing of facial jewellery by dietary staff. pins and necklaces (including pens on a string) are not to be worn while on duty.. The hospi tal was concemed about the nose studs because of a possibility that a fresh piercing might cause bacteria to shed and drop into food and also that the new piercings might cause employees to touch their noses more often. establish. bracelets. . rings (other than wedding bands).. resolved withdrawn _.---. testified that he was not aware of any studies linking the transmission of disease w ith facial piercings in hospital kitchens and confirmed that there were no regulations or provincial guidelines." Dietary aides at the hospital help w ith the food preparation and serve patients. the Director of Dietary and Diagnostic Services. are set out in the collective agreement. Two of the dietary aides started to wear nose studs after having their noses pierced. Large earrings. or hoops no larger than a dime) and tight fitting watches w ith a leather or metal band (no bracelet watches or cloth watchbands).. The grievance was not resolved and the issue was referred to an arbitrator. It was his opinion that provided the piercing was properly cleaned and secured there was no increased risk of disease transmission... fiGURE 9-1 Grievance Procedure Step 1 Step 2 . After hearing the evidence. The hospital ordered the dietary aides to remove their nose studs during work hours relying on the jewellery policy. provided in agreement. she cou ld not point to any studies confirming this. including the number of steps and time limits.. however. The details of the grievance procedure.... . Some have four or more steps.. testified that it was her opinion that nasal piercings created the risk of contam ination of food through the shedding of bacteria from the nose.236 Chapter 9 Administration of the Collective Agreement West Lincoln Memorial Hospital is an acute care and nursing home facility. The arbitrator made a declaration that the hospital had violated the collective agreement and issued an order prohibiting the continuation of this violation._ __. withdrawn ' Grievan ce referred to arbi tration.-----~-. and enforce reasonable rules and regulations to be observed by the employees. small earrings (ear lobe sized studs..-------. and lega l advice should be obtained. These cases illustrate the principle that if a dispute between the parties arises from the collective agreement. This includes any claims made by the employer agai nst the union or employees. and said that because the dispute did not arise from the collective agreement a court action was permissible. The suit was dismissed. sued the employee. Subsequently the criminal charges were withdrawn and the employee sued the employer for malicious prosecution. unions. and employees that are summarized in Figure 9 -2. In anothe r case. After a complaint aga inst Haynes. and the court action was dismissed. not the court system. and has potential benefits for employers. SIGNIFICANCE OF THE GRIEVANCE AND ARB ITRA liON PROCESS T he grievance procedure has been referred to by some as the heart of the collective agreement. claiming she was the victim of false and misleading statements and asserti ng that the Board did not have the right to require her to undergo psychiatric assessment as a condition of employment. The court agreed with the employer. Teachers are covered by a collective agreement between the Board and the British Columbia Teachers Federation.3 T he procedure serves several functions.2 Labour Relations Issue 9-1 illustrates that this requirement applies to both employers and employees. a tmionized employee tried to sue his employer who had investigated him using the services of a private investigator. not through the courts. must be used to resolve disputes between the parties that flow from the collective agreement. claiming compensation for the damage. it is possible to sue. an e mployer accused an e mployee of theft and pursued a complaint with the police. the court held that the employer should have used the grievance procedure in the collective agreement to make the claim. In another case. an ambulance driver covered by a collective agreement between OPSEU and the Province of Ontario. The employer responded that the employee's court action could not proceed because the employee should have filed a grievance. thin king the damage was either deliberate or caused by negligence. it must be resolved through the grievance and arbitration process. It is likely . The court rejected this argument. Bowie. not in the courts. FUNCTIONS OF G Rl EVA NCES AND ARBITRATION Dispute Settlement A dispute settlement mechanism is necessary because there are many potential sources of conflict between the parties during the term of the collective agreement. her benefits were terminated because she refused psychiatric treatment. Hay nes went on a medical leave. The law does not provide that all disputes between an employee and the employer must go through the grievance and arbitration process. The Supreme Court of C·mada confirmed that a court action was not permissible because the dispute arose from a collective agreement and it should have been dealt through the grievance and arbitration process. was involved in an accident that caused damage to the vehicle. If the dispute does not arise from the collective agreement. In the leading case on this issue. The employe r raised the defence that the court did not have jurisdiction (autho rity) to hear the matter because it was a dispute that arose from th e collective agreement and therefore any claim had to be made through the grieva nce and arbitratio n process. however. In some cases it may not be clear whether a cla im should be made through the grievance and arbitration process or the courts. The employer. she was eventually examined by a psychiatrist who concluded that she was unemployable. Haynes commenced a legal action against the Board. Can Unionized Employees and Employers Sue? Haynes was a school teacher employed by the Vancouver school Board.Chapter 9 Administration of the Collective Agreement 237 The grievance a nd arbitration process. 238 Chapter 9 Administration of the Collective Agreement FIGURE 9-2 Grievance and Arbitration Process: Functions and Benefits Functions 1. Prov ides a review of workplace decisions by outside party 2. discharge. w ithout clarifying what the term " hospitalized" means. Establishes a check on the quality and consistency of ma nagement decisions 3. Settles disputes pri or to next round of negotiatio ns Benefits to Management 1. T he procedure also provides a mechanism to resolve disputes flowing from management decisions made pursuant to the terms of the agreement. If an employee received treatment as an outpatient and did not remain in hospital overnight. Prov ides a elispute settleme nt mechani sm 2. For example. and seniority are considered later in this chapter. Prov ides a voice mechanism whi ch red uces turnover Benefits to Unions and Union Officials 1. . Increases uni on solidarity 4 . Prov ides political benefits to union leaders Benefits to Employees 1. and pursue a grievance later. grieve later is a rule that summarizes the requirement that employees must obey management instructions and file a grievance at a later time. Union. T he grievance procedure will provide a mechanism to resolve t he meaning of the term and the rights of the employee. which typically gives management the right to discipline and discharge for just cause and determine whether an employee has sufficient ability for a job. The parties may not anticipate that a term in the agreement might be ambiguous and they may fail to clearly define it. Prov ides a potential pressure tactic 2. T here might be disputes because collective agreement terms appear to be in conflict with each other. the employee must follow it even if it appears to violate the collective agreement. Ensures compli ance with the collective agreement 3. Settles disputes without interruption of work 2. the collective agreement might refer to certain benefits being paid to employees who are hospital ized. grieve later rule. Prov ides a communication or consultation mechani sm 2. Increases job security Obey now. 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. It is likely that employees or the union will disagree w ith some of these decisions. T he management rights article might appear to allow the employer to install new equipment. which means that unless the disputed management directive is illegal or would entail a safety risk. T his is sununarized in the obey now. Provides a forum for additional bargaining during the term of the collective agreement Benefits to the Empl oyer. Contract language may be left vague when it is negotiated because the parties cannot agree on more specific terms. but another article dealing with technological change might appear to prohibit such a change. Prov ides a method to oppose or res ist management directives 3. and Employees 1. Grievances dealing with discipline. that there will be disagreements regarding the meaning of contract terms. there might be a dispute about whether the employee was hospitalized. T he procedure may also improve the quality and consistency of decision making by managers. A settlement of the grievance might include an elaboration on the terms of the collective agreement. T hese settlements might be incorporated into the collective agreement in subsequent contract negotiations. BENEFITS OF G Rl EVA NCES AND ARBITRATION The grievance process has potential benefits for the union. which allowed drivers some discretion in the use of lights and sirens. The employees filed grievances claiming that the new rules were unreasonable. an arbitrator can order the employer to pay the compensation owing. if it provided for a workload formula for teachers. If an employee was not assigned overtime that he or she was entitled to. in one case a municipality employed ambulance drivers and attendants. For example.4 This means that dissatisfied employees can either leave the employer or stay and attempt to resolve problems. For example. The rule was a change from past practice. Some of the costs of this voice mechanism. It has been suggested that employees who are dissatisfied have two primary methods to deal with their situation: exit or voice. We will see later that the union could use the grievance procedure to oppose and even overturn some management directives. are borne by the union. It has been argued that unions give employees a voice. Benefits to Management T he process could be used as a communication or consultation mechanism through which management may learn of possible problems and take corrective action. An arbitrator found that there was no justification for the rule 239 . Benefits Common to All the Parties All parties will benefit if disputes are resolved without a stoppage of work. there might be a dispute about the application of the formula in a particular case. and the grievance procedure is one way this voice is exercised. Benefits to Unions and Union Officials The union may be able to use the grievance procedure as a pressure tactic by filing a large number of grievances prior to contract negotiations. Settling disputes during the term of the agreement instead of allowing them to build up until the next contract negotiations may help the parties improve their relationship and make contract negotiations easier. Unionized firms have lower turnover rates. The employer adopted a policy requiring lights and sirens to be used on all calls that were designated as emergencies. and employees. which may benefit employers. the employer. especially at the lower levels of the process. the grievance process provides a way to recover the wages lost. because they know that employees may turn to the grievance process if decisions are not made fairly and consistently with the collective agreement.Chapter 9 Administration of the Collective Agreement Enforcement of the Collective Agreement The grievance and arbitration process can be used to enforce the collective agreement and remedy any breaches. T he ambulance drivers and attendants thought that the policy posed a safety risk for themselves and the public. T he agreement may specify general terms relating to work conditions that need to be clarified or expanded upon. If a grievance was filed and the matter was not settled. Additional Bargaining during the Term of the Agreement The grievance process may provide a forum for additional bargaining between the parties during the term of the agreement. Employers will not lose production and employees will not lose compensation. the procedure may show the employee that the decision was not arbitrary and he or she may appreciate the opportunity to be heard. are likely related to the relationship between the . The procedure might benefit union leaders seeking re-election. there will be further attempts to settle the dispute and avoid arbitration. who fills in the particulars.5 A grievance might increase union solidarity by rallying support against the employer. Even if the employee does not win the grievance. We will see later in tlus chapter that if an employee was passed over for a promotion. and discipline. there is an attempt to resolve an issue by having a discussion with the line manager or the human resources department prior to filing a grievance. including recruiting. IN FORMA L ISSUE RESOLUTION Not all problems and complaints become grievances. a grievance might result in the employee being awarded the job. approximately half of terminated employees are reinstated through the grievance process. Some disputes and grievances might be avoided if the employer respects the agreement and consults with the union. Where it is positive. Typically after the grievance has been submitted to arbitration. POTENTIAL EMPLOYER CONCERNS REGARDING THE GRIEVANCE PROCESS Because the grievance process can be used to challenge management decisions. After a grievance has been filed.240 Chapter 9 Administration of the Collective Agreement and that any discipline imposed under the rule would be unjust. grievances may be limited to a few legitimate disputes. Benefits to Employees Employees may benefit from having workplace issues resolved by an impartial third party. informal discussions may take place to try to resolve the issue. It ordered that the policy be suspended. In many workplaces. T he relationship between the union and the employer will affect the extent to which the grievance process is a problem for the employer. or prior to the arbitration hearing. If the relationship is poor. in addition to the meetings prescribed in the collective agreement. grievances will more likely be a source of difficu lty. T he procedure also provides job security. Union stewards play a key role in advising employees about their rights and assisting them with grievances. the union initiates the grievance procedure by preparing a grievance and submitting it to the employer representative specified in the agreement. Later in this chapter. selection. The attitude of the employer towards the collective agreement and the muon may be a factor. G Rl EVANCE PROCEDURE Typically. we will see that collective agreement terms and the grievance procedure will affect several human resources functions. it has the potential to be a source of problems for the employer. T he Uiuon may use pre-printed grievance forms that contain basic information and are completed by a union official. because the membership sees them fighting for employee interests. The extent and success of attempts to resolve disputes before a grievance is filed. and may be used to harass and obstruct. A sample grievance was provided in Figure 7-2. training. . the constitution of the Ontario Public Service Employees Union (OPSEU) provides that the individual employee has control over a grievance. T he grievance rate is higher in bargaining units where the labour relations climate is poor? It should be noted that there might not be a causal relationship between the labour-management relationship and the grievance rate. the employer's replies should be clear and concise. In most cases. settled. 6 The grievance ra te is the number of grievances filed divided by the number of employees in the bargaining unit. Waiver is a legal concept that if a party does not object to a proced ural error it cannot raise the issue later." by having a suspension imposed on an employee. For example. grievances were dealt with more quickly. not the employee. or referred to arbitration.Chapter 9 Administration of the Collective Agreeme nt parties. It found that when the relationship was more cooperative. the Canadian Union of Postal Workers filed 28 977 grievances at Canada Post. w ithdrawn. Waiver is a legal concept that if a party does not object to a procedural error. the employer should object in writing before proceeding to the Step 2 meeting. Where the relationship is more cooperative. including management's replies at each step of the process. Owner ship of the grievan ce refers to the issue of who decides w hether a grievance is filed. this offer could not be referred to at the hearing. O W NER SHIP O F THE G RIE VA N C E T he ownership of the grievance refers to the issue of who decides whether a grievance is filed. If the grievance procedure provided that after Step 1 the union had 10 days to refer the grievance to Step 2. there will be more attempts to settle prior to arbitration. It is up to the union. and waits until the arbitration hearing to raise the issue of the failure to meet the time limit. At least one study has confirmed that there is a relationship between the labour relations climate and grievance outcomes. which means they cannot be referred to at any subsequent arbitration hearing. it cannot raise the issue later.8 241 The grievan ce ra te is the number of grievances filed d ivided by the num ber of employees in the bargaining uni t. for example a missed time limit. and the union did not take action for 20 days. it is the union and not the employee who has ownership or control of the grievance. the grievance rate is high and there may be thousands of grievances outstanding at any one time. settled. There may be rare exceptions to this rule in some unions. If the employer goes ahead with the meeting. and any offers to settle should be in separate documents. Furthermore. it may be found to have waived the failure to Pri vil eged communica tion s refers to d iscussions that cannot be referred to at an arbitration hearing . to decide whether a grievance will be filed and how it will be resolved. and the likelihood of a grievance being granted increased. it is not clear whether a more cooperative relationship leads to lower grievance rates or lower grievance rates lead to a more cooperative rela tionship. or referred to arbitration. Any admissions or offers to settle made during the course of grievance meetings cannot be presented as evidence at the arbitration hearing. if the union offered to settle a grievance relating to a dismissal in a letter headed "Without Prejudice. Documents that are part of the formal grievance procedure. may be introduced as evidence at the hearing. subject to the duty of fair representation referred to below. Canada Post has had an extremely high grievance rate in the past. 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. For example. W ith out prejud ice documents cannot be referred to at a subseq uent arbitration hearing. PR OC EDURA L M ATTER S T he discussions between the parties at grievance meetings are privileged communications. meaning that the documents cannot be referred to at a subsequent arbitration hearing. withdrawn. Written conununication between grievance meetings should be labelled as without prejudice. In one year. Accordingly. In some workplaces where the relationship between the union and the employer is poor. confirm the grievance has been resolved. and leaving an employee with an unresolved issue. and a settlement included reinstatement of the employee. employers and unions must have an understanding of the arbitration process. union. sometimes referred to as rights arbitration and interest arbitration. . RIGHT S VS _ IN TEREST ARBITRATION Rights a rbitra tio n refers to the resolution of a disr>ute relating to the administration of a collective agreement. approximately 2 to 3 percent of those filed. it could not be referred to in any subsequent case. British Columbia. Witho ut precede nt is a basis for settle me nt that means it cannot be referred to in any subsequent proceedings. where the parties cannot agree on the terms of a collective agreement through negotiation. Grievance or rights arbitration resolves disputes relating to the administration of the agreement. There may be disadvantages to doing so. If the settlement was on a without precedent basis. the employer and union present evidence and make submissions regarding what the agreement should contain. New Brunswick. and the arbitrator's decision sets out the terms of the contract. which may be referred to as minutes of settlement or a memorandum of settlement. This document should refer to the grievance. meaning it cannot be referred to in any subsequent proceedings. Consideration should be given to providing that the settlement is done on a without precedent basis. T he issue may arise in other grievances shortly anyway. In interest arbitration. the employer may want to carefully consider whether it wants to rely on the time limits to dismiss a grievance on a technicality. ARBITRATION Although only a few grievances. including harming the relationship between the parties. including possible reinstatement of the employee. Interest arbirration relates to an entirely different type of dispute. If an employee was discharged. If a grievance is settled prior to the conclusion of the arbitration hearing. Alternatively. If a dispute is not resolved through the grievance process. such as a reinstatement or payments to be made.Canada. Suppose the employer dismissed an employee who was in possession of an illegal substance in the workplace. Interest arbitration is used primarily in areas of the public sector such as police and fire services. and any employees involved. Inter est arbitratio n refers to the determination of the terms of a collective agreement. it could be referred to grievance or rights arbitration for final resolution. he or she could file a grievance alleging that there was a violation of the collective agreement because there was not just cause.242 Chapter 9 Administration of the Collective Agreement comply. In six jurisdictions. The docu ment should be signed by the employer. proceed all the way to arbirration. Ontario. in which strikes are not allowed.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. which relates to the determination of contract terms. SETTLEMENT AGREEMENTS The minutes of settlem ent is a document that sets out the te rms of an agreeme nt to resolve a gnevance. If the dispute was not settled. which is often the case. A distinction must be drawn between grievance. and Saskatchewan. the settlement should be set out in a written document. and the employer would be free to discharge another employee later for the same offence. Manitoba. and set out the terms of the settlement. it may become a point that will have to be dealt with at the next round of contract negotiations. Arbitrators have been given the authority to do whatever is necessary to conduct a hearing. cross-examine the other side's witnesses. 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. which will shorten the time required to establish the factual issues and allow the parties to move on quickly to the argu ment stage of the hearing. issue summonses for witnesses. ca/index. A n agr eed statem ent o f facts sets out the matters that the parties have agreed upon. The facts set out in the statement will not have to be proven at the hearing. At the hearing. Lawyers may represent the parties. Burden of Proof In any arbitration case. Ivlany arbitrators are university professors and lawyers. Although a few do arbitration work full -time. such as dates of employment or certain events that have occurred. and determine the admissibility of evidence. Arbitration is an adversarial process in which the parties present evidence to the arbitrator who makes a decision or order on the basis of the evidence. T he Federation cautions that the survey is designed to be only a guide for the selection of arbitrators with experience in a particular subject area. . commonly the arbitrator reviews the evidence and provides a decision at a later date. If a union filed a grievance alleging that an employee had sufficient ability for a job vacancy. the burden of proof would not be met and the arbitrator would dismiss the grievance.that is. but there is no requirement that the arbitrator be a lawyer. T he general rule is that the burden of proof is borne by the parry filing the grievance. including a single arbitrator or an arbitration board. typically a meeting room in a hotel. The parties may be interested in the track record of an arbitrator to see how much experience he or she has and to determine how he or she has decided cases similar to the one at hand. and arrangements can be made to subpoena witnesses to compel them to attend. Usually a few experienced arbitrators are handling a disproportionately large number of cases in each province. the duty to accommodate. The labour relations legislation of each jurisdiction sets out the authority of arbitrators. but this is not required. it will have the job of proving the facts in dispute.. either the union or the employer will bear what is known as the burden of proof. they might prepare and present an agreed statement of facts to the arbitrator. therefore. The burden o f proof refers to w ho must prove the facts in d ispute . References here to an arbitra tor include an arbitration board.Chapter 9 Administration of the Collective Agreeme nt 243 ARBITRATO RS Most arbitrators have a legal background. The burden of proof will be significant if the arbitrator cannot decide whose version of the facts is true. The arbitrator might render a decision immediately in cases that are clear. each side will be allowed to make an opening statement. indicating if the decision was in favour of the employer or the union.php/pu blications/ THE ARBITRATI O N HEARING The alternative forms of arbitration that the collective agreement might provide for. present evidence through witnesses and documents. were referred to in Chapter 7. including fi:x the dates for hearings. Each side is responsible for ensuring that its witnesses are present. however. and make a final argument. Website for O ntario Federation of Labour arbitrator survey: http://ofl. If the parties have agreed on some or all of the facts. T he Ontario Federation of Labour has published a survey with an extensive list of arbitrators who have decided cases in over 50 areas such as discharge and discipline. it is the employer that bears the burden of proof. T he hearing is held at a neutral site. and job posting. many do arbitrations on a part-time basis. because in that event the parry bearing the burden of proof will lose. and the evidence was not clear. Discipline and discharge cases are an exception. however. the arbitrator has to decide whether to uphold the disnlissal or substitute a lesser penalty. Knowing this. Previously decided cases establish points of labour law that can guide the parties when negotiating the collective agreement. In a situation in which an employee has been guilty of minor insubordination. if you do not agree with A. T he union's first position might be that there was no misconduct by the employee. some arbitrators take the approach of providing the employee with the next opportunity to work overtime. it is possible to have conflicting decisions or two schools of thought on some issues. the employer would refer the arbitrator to previous decisions in which arbitrators upheld the dismissal of employees guilty of similar misconduct.php T housands of arbitration decisions are made every year. Others think the remedy should be an award of cash to compensate the employee for lost earnings. numerous decisions have clearly established that the employer is permitted to contract out work unless the agreement prohibits it. this would guide the settlement negotiations." An example of a union making an argument in the alternative might arise in a discipline and discharge case as follows. In the cases dealing with the dismissal of employees later in tllis chapter.244 Chapter 9 Administration of the Collective Agreement Argument in the Alterna tive A n ar gument in the alternati ve refers to a party making an argument it wishes the arbitrator to accel>t i f its primary argument is not accepted . they can make secondary or alternative arguments if the arbitrator does not agree with their primary position. Employers will try to avoid limits on the right to contract out. the matter to be resolved is the discipline that should have been imposed. 12 Some arbitration decisions are also available online at the Canadian Legal Information Institute. the parties can negotiate accordingly. 1 Commentary on arbitration cases useful to both employers and Uiuons can be found in Canadian Labour Arbitration (4th ed. we submit that you should find B. however. either side can say. On the issue of the appropriate remedy for an employer's failure to properly distribute overtime. however. the union's alternative position might be that the penalty imposed by the employer should be reduced. if the arbitrator finds there was misconduct. they do not establish binding precedents. If it were found that previous decisions set the penalty at a one-day-to-one-week suspension. 9 At the hearing. One source of arbitration decisions is Labour Arbitration Cases. The union will seek to have the collective agreement limit the employer's right to contract out.org/erv'index. At the hearing. Because arbitrators may have different views on some matters. 13 ° . knowing they can contract out unless the agreement provides otherwise. perhaps even making a concession in another area to obtain some limitation. the union and the employer will both try to refer ro previous cases that support their position.) 11 and Leading Cases on Labour Arbitration. For example. 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. In effect. This means that neither the union nor the employer is restricted to putting forward only one claim or defence. T he union would try to present similar cases in which arbitrators ordered reinstatement. a series which reports important decisions. Previous decisions on an issue are often influential on later ones. " Our position is A. Arbitrators are bound by the relevant legislation in their jurisdiction and by court decisions interpreting that legislation. A RBITR ATI O N DE C ISIO N S Website for Canadian l egal Information Institute : http://Www. T he authority of an arbitrator to reduce a penalty is discussed later in this chapter. Either side can make an argument in the alternative. The parties may also use previous decisions to help settle a grievance. can Iii . the grievances were not arbitrable. There are several possible reasons why a dispute is inarbitrable. COST OF ARBITRATION T he employer and the union may have lawyers represent them. The collective agreement did not refer to the issue of early retirement. A few agreements c . references will be made at arbitration hearings to legislation and to previous court and arbitration decisions. Questions of fact an arbitrator would have to determine include whether an employee was guilty of theft. the employer denied several requests to participate in the plan.Chapter 9 Administration of the Collective Agreement -? 4 . he or she cannot amend the agreement. A grievance was filed when a contract employee was terminated with the required notice. the collective agreement provided that contract employees could be terminated with one week's notice. When Is a Dispute Arbitrable? A n employer established an early retirement plan that offered financial incentives to employees to partic ipate. it must deal w ith an alleged breach of a term of the agreement or a v iolation of employment legislation . W hen some employees w ho were denied access to the plan filed grievances. On th is basis. ARBITRAB ILITY The arbitrator does not have authority to deal with all disputes that might arise between the union and the employer. When it was established that the employer had in fact given the notice required. Second. 14 Finally. Arbitrability refers to whether an arbitrator has the authority to hear the dispute and render a decision. Labour Relations Issue 9-2 refers to a situation in which there was a question of arbitrability. First. if the agreement has been complied with. and inarbitrable if he or she does not. T his is subject to the possibility of an arbitrator extending a time limit in some jurisdictions referred to above. or whether an employee has sufficient ability for a job. Arbitrability refers to whether an arbitrator has authority to hear a dispute. A question of law an arbitrator may have to determine would be whether an employer has met the duty to accommodate. the arbitrator may not have jurisdiction if the procedural requirements of the grievance process have not been followed. and tllis will be a factor affecting the cost for each side. In the course of determining points of law. It was held that because the disputes related to a matter notreferred to in the collective agreement.) Arbitrators must deal with questions of fact and questions of law. the dispute must relate to a matter covered by the collective agreemem. for example. a matter is not arbitrable even though the results may seem harsh or unfair. the arbitrator held that the grievance was inarbitrable. In order for a grievance to be arbitrable. The plan provided that the employer could deny an employee's request to participate if the company would have to hire a new person to replace the prospective retiree. In one case. It should be noted that an arbitrator only decides issues relating to the interpretation or alleged violation of the agreemem. when there has been a failure to meet a mandatory time limit. A dispute is referred to as arbitrable if the arbitrator has the authority to hear it. an arbitrator dismissed them. Most collective agreements provide that the parties will split the arbitrator's fees and expenses regardless of who wins. 16 The employer fired an employee claiming that she had been guilty of making a false sick leave claim. $50 000 in ptmitive damages. acceptable outcomes which are defensible in respect of the facts and law. It was found that the employer's !ugh-handed conduct had been the cause of the employee's mental condition. One of the parties may back down. and other issues . to avoid the expense of going to a hearing. This case should be monitored to determine if it is upheld upon judicial review or appeal. the standard applied is one of reasonableness as opposed to correctness. one critical point must be noted. and may be a factor in reaching a settlement prior to the arbitration hearing. T here will be additional expenses. 15 In a recent case. one arbitrator has extended the remedies granted in arbitration. . or the parties may compromise. If an arbitration board is used instead of a sole arbitrator. The costs can be especially significant for a small union or employer. pay the difference between the employee's regular pay and sick leave pay for the time the employee had been away from work. There . this is unusual. In British Columbia. and the arbitrator awarded $50 000 for emotional stress. 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. RE M EDIE S Arbitrators have authority to issue orders that will remedy the breach of the collective agreement. arbitration can be expensive. T he arbitrator upheld the grievance and awarded the grievor in excess of $500 000 for a "bad faith" dismissal. such as grievance mediation. The expense of arbitration is one of the factors leading some academics and practitioners to recommend alternatives. ensure that the employee wou ld not come into contact with the supervisor in the future. The standard of reasonableness has been described in one case as follows: "Reviewing courts cannot substitute their own appreciation of the appropriate solution.246 Chapter 9 Administration of the Collective Agreement provide that the losing party pays the costs of the arbitration. however. lost salary. including the cost of the room for the hearing. serliority. the arbitrator ordered the employer to restore the employee's sick leave credits.'\rbirrators have the authority to: order the reduction of discipline imposed upon employees. 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. and pay the employee $25 000 in general damages. establish an anti-harassment training program for managerial staff. and losses for future pay and benefits. make a declaration that a party has violated the agreement and direct compliance. 17 This is a topic beyond this text. which is discussed later in tllis chapter. but must rather determine if the outcome falls witlun a range of possible. RE V IE W O F ARBITR ATI O N DE C ISIO N S What can the employer or the union do if it thinks that an arbitrator's decision is wrong? In most jurisdictions. however. including ordering reinstatement. Depending on whether lawyers are used and the length of the hearing. decisions can be reviewed by the Labour Relations Board. the parties will also have to pay the additional fees owing to their representatives on the board. The Supreme Court of Canada has recently restated the law relating to the judicial review of decisions by tribunals and arbitrators. When a court reviews an arbitration decision. . Remedies are referred to below in greater detail in subsections relating to discipline. it is possible to make an application for judicial (court) review of an arbitration decision.'\rbitrator's fees range from $2000 to $3500 per day for the hearing and writing up the award. and order the payment of damages for financial loss. as long as the process and the outcome fit comfortably with the principles of justification. Traditionally." 18 Accordingly. The emplo)'ee ma)' obtain the assistance of the Emplo)'eeAdvocate in this process. and discipline and discharge are the most common. a judicial review will not be successful because the decision meets the reasonableness standard. FRAMEW ORK OF FAIRNESS: AN ALTERNATIVE APPROACH TO CONTRACT ADMINI STRATION In the traditional labour relations model. The Employee Advocate can be removed by a secret ballot vote. the)' are not unio n representatives nor does their role inc lude the representation oi emplo)'ees. The non-managerial members must constitute at least 50% plus one of the members of the Fairness Committee. and employees may apply. Althougl1 a grievance can arise from any term in the collective agreement. If the issue is remains unresolved it is referred to the Emplo)'ee Relations Review Committee. however. 6. The emplo)'ee is responsible for the carriage of the matter to the point w here the hot line issues a decision . If the dispute is not resolved the issue is referred to the confli ct resolution subcom- mittee of the Emplo)'ee Relations Review Committee. Candidates will be interviewed by a Fairness Committee panel that will determine the top three candidates. transparency and intelligibility. it is not open to a reviewing court to substitute its own view of a preferred outcome. this is subject to the override of the CAW assistant to the president. complaints regarding an alleged contravention of the collective agreement proceed through a grievance process." 3. A brief sununary of the conflict resolution process is provided in Figure 9-3. union stewards have played a key role in the grievance process. ? 4~ - I . FIGURE 9-3 Framework of Fairness Dispute Resolution Process 1. The use of the hotline and the Fairness Committee that includes employee representatives is indicative of a more collaborative approach to dispute resolution. it is possible that an arbitration decision could be viewed by some as incorrect. The Fairness Committee is made up of members elected b)' emplo)'ees and members appointed b)' management including managers o r superv isors. Employee advocates are not elected by employees. and they are resolved by an arbitrator if the grievance is not settled or withdrawn." The Employee Advocate position will be posted. grievances relating to management riglltS.W is the bargaining agent will be represented by an Employee Advocate instead of union stewards. seniority issues. Subsequently the top candidates will be interviewed by the CAW assistant president who selects the Employee Advocate. Issues relating to grievances in these areas are discussed in the following sections. If the dispute remains unresolved it is referred to an arbitrator. However. 2. The union takes over carriage of the matter after the hotl ine decision. The Framework of Fairness Agreement between .tvlagna and the CAW establishes a new Employee Advocate position. however. If the emplo)'ee's concern remains unresolved the)' ma)' refer the issue to the Magna hotline w hich w ill render a decision. 5. 4 . they are "selected via [a ]consultative approach. If the emplo)'ee's concern is not resolved the)' ma)' refer the matter to a hearing oi the Fairness Committee. Employees of each division in which the CA. An emplo)'ee w ith a concern is encouraged to utilize the open door process.Chapter 9 Administration of the Collective Agreement may be more than one reasonable outcome. The FFA provides that 'While some Fairness Committee members are also members of the union. If the contract requires the employer to provide clothing.248 Chapter 9 Administration of the Collective Agreement MANAGEMENT RIGHTS In Chapter 7. the employer could not rely on the management rights article to adopt a policy on uniforms that requires employees to pay for them.21 Estoppel Esto ppel is a legal concept providing that if a party makes a representation that an issue w ill be dealt w ith in a manner different from the provisions of the collective agreement. management can make decisions relating to methods of operation and levels of production. Although it should be noted that the law relating to privacy is still evolving. whereas most of the other terms in a collective agreement benefit employees. or the common law. (3) there must not have been previous statements or conduct that creates an estoppel. 20 Similarly. it was noted that the management rights article is different from most collective agreement terms because its purpose is to benefit management. Statements made by a party to the agreement could be the basis for an estoppel. including human rights. and (4) any rules established must meet the requirements set out in the case KVP Co. (2) the action taken must be legal. TI1e employer. A fundamental principle in labour relations is that the collective agreemenr must be read as a whole. 19 Provisions of the Collective Agreemen t When the employer purports to exercise any management rights. Compliance w ith 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. Ltd. However. the management rights article does not allow the employer to do anything it wants. indicating that an issue will be dealt with in a manner different from the provisions of the agreement. the vaccination was an illegal assault. a collective agreement provided that layoffs would occur in reverse order of seniority. The hiring manager assured both teclmicians when they were hired that they would not be laid off because of funding cuts or the return of other employees to the department. hired two laboratory technicians. Sample contract provisions were provided in Figure 7-7 . The doctrine of estoppel may prevent the union or the employer from relying on and enforcing the terms of the collective agreement. arbitrators in some jurisdictions have not allowed employers to require employees to obtain flu vaccinations where there was no legislated basis for the requirement. LI M ITATI O N S O N THE EXERC ISE O F MA N AG EM ENT RI G HT S Any action taken by the employer relying on managemem rights is subject to the following limitations: (1) the measures must not contravene other provisions of the collective agreement. In one case. and in the absence of such legislation. au employer relied upon the management rights provisions in the collective agreement to attempt to introduce a biometric payroll and time keeping system that used employee fingerprints. or other statues. an arbitrator prohibited the establishment of the system on the basis that it was an invasion of the employee's privacy iuterests. it must comply with other provisions in the agreement. In one case. there are limitations on the exercise of management rights. employment standards. a hospital. it will not be able to later insist upon the collective agreement being enforced as w ritten. An employer cmmot take any action that violates legislation. the hospital laid off the technicians 14 months after they were hired when other employees . Where a party makes a representation to the other. However. the party who made the representation will not be able to later insist upon the collective agreement being enforced. Relying on this article. by way of words or conduct. it will be deemed to have agreed to the application of the agreement as written. 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. The party that has previously relied on the variation from the collective agreement will have to negotiate a change to the agreement.•'\n 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 union and the employer should be alert to the possibility of estoppel based on conduct or past practice. the employer must show that the rule prevents a threat to its business and is not just imposing the employer's preferences on employees. Ltd.Most arbitrators hold that any rules established by management pursuant to the management rights article must comply with the requirements established in the case of Re Lumber and Sawmill Workers' Union. The employer has the right to establish reasonable rules to protect its image and business interests. a union might be caught by <Ul estoppel argmnent based on prior past practice if it failed to enforce all the terms of the agreement. Requ irements for Rules Established in KVP Co. 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. In one case. some arbitrators have distinguished between rules that affect employees' personal choices outside of the workplace. and the layoff of the technicians was nullified. A grievance was filed. the employer had a long-established practice of paying employees benefits during the three -<lay period. Employers who attempt to establish rules relating to personal appearance may encounter difficulty. Esroppel does not mean that a party will be prevented from enforcing the terms of the agreement indefinitely. 22 Because of the representations made to the technicians before they were hired. the union filed a grievance relying on estoppel. When determi1ling if a rule is reasonable. a collective agreement will usually provide for a probationary period. H owever. the collective agreement provided that certain benefits would be paid to employees after a three-day waiting period. the employer could not rely on the collective agreement. the tmion may not be allowed to object to an extension of the period on the basis of estoppe1. and the price of gas increased significantly. Local 2537. such as prohibiting 249 . One of the requirements that may be of particular interest to employers is that a rule must not be unreasonable.23 Despite the terms of the collective agreement. If the agreement provided for a rate of remuneration for employees who drove their own cars. An excerpt from the case setting out the requirements for rules is provided in Figure 9-4. The vignette at the beginning of tlus chapter in which an employer was ordered to rescind a rule prohibiting nasal piercings illustrates this requirement. in breach of the agreement. If it fails to do so. In cases where employers have established rules prohibiting facial jewellery. An employer who wanted to vary from the collective agreement to deal with a short-term issue might 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. When the employer indicated it would enforce the three-day waiting period in the future. For example. and KVP Co. Similarly. Ltd . an agreement might allow the employer to increase the mileage allowance for a time and avoid any possible estoppel arguments later.Chapter 9 Administration of the Collective Agreeme nt returned to the bargaining unit. 24 An estoppel will not be established by a single failure to comply with or enforce the collective agreement. If the employer made a habit of extending the period. and the arbitrator held that the doctrine of estoppel applied. and the union took no action. . employers and unions should be aware of the risk of repeated failures to enforce a term of the agreement. the employer has been required to produce evidence of harm or loss through opi1lion surveys or customer feedback to establish that the rule is reasonable. however. When the employees objected. Unfortunately the many variables involved in the topi c of drug and alcohol testing make this topic complex. A human rights tribunal in the Emrop case found random drug testing to be discriminatory because it did not determine current impairment. It must be brought to the attention of the employee affected before the company can act on it. With technology that allows drug testing to determine current impairment. and not on the basis of human rights legislation as was the case in Emrop. 3. The requirement that a rule or policy be reasonable may mean that employers in unionized workplaces cam1ot use random drug testing because they cannot establish the reasonableness of the testing. it could now determine current drug impairment. or subsequent to an incident. At the time of this writing it appears that unionized employers cannot use random drug testing as opposed to testing for cause. This is an evolving area that must be monitored for developments. whereas it might not be allowed in unionized workplaces. as opposed to rules that only affect employees at the workplace. The jurisdiction involved may be a factor because the courts in Alberta have indicated a greater willingness to allow testi ng in the non-union setting. the arbitration decision was upheld on judicial review and by the Ontario Court of Appeal. Ontario refinery. the company established a policy that included random drug and alcohol tests (urinalysis) for employees in safety-sensitive positions. case. even in safetysensitive work environments. should random drug testing be perm ittedl . after an incident. Subsequently. must satisfy the following requisites: 1. It must not be unreasonable. In what circumstance. random. and the jurisdia ion. Imperial O il started a new random drug testing program in a unionized workplace at its Nanticoke. The employer's authority to use alcohol or drug testing may vary depending on whether the employees are unionized. which held that the testing was contrary to established labour law. In the 1990s. Refer to L1bour Relations Issue 9-3 on dlis issue. Should Random Drug Testing be Allowed? Imperial O il is concerned about the risk posed by drugs and alcohol in the workplace. It must not be inconsistent with the collecti ve agreement. and the matter went to an arbitration board. It should be noted that this decision relating to random testing did not preclude testing for cause where employees exhibited impairment or had been involved in an incident. the arbitration board's decision provided that: A rule unilaterally introduced by the company. In 2003. 6. It must be clear and unec1uivocal. beards. The employee concerned must have been notified that a breach of such rule cou lei result in his discharge if the rule is used as a foundation for discharge. Ltd . It is important to note that this arbitration decision was based on the basis of the collective agreement and long-standing labour law relating to the reasonableness of the test. and not subsequently agreed to by the union. This raises the possibility that t11e new technology may lead to random drug testing being allowed in non-union workplaces under some circumstances. The decision provided that employees in a unionized workplace could not be subjected to a drug test unless there was reasonable cause or an incident to justify the testing. The test relied upon a mouth swab that would establish whether employees had used marijuana within four hours of taking the test. 4. Such rule should have been consistently enforced by the company from the time it was introduced. the test is pre-employment. such as prohibitions against jewellery. if any. The union filed a grievance.250 Chapter 9 Administration of the Collective Agreement FIGURE 9-4 Requirements for Employer Rules In the K\IP Co. it may be possible that in a non-union workplace the employer could argue that the human rights problem with random drug testing in Emrop has been resolved and random drug testing could be introduced. Imperial claimed that with this test. 2. 5. or as part of a rehabilitation program. Earlier in this chapter. or a discharged employee being reinstated. In one case. T he union was able to challenge the rule through the grievance process before it was applied. The courts will not order the reinstatement of a non-union employee. DISCIPLINE AND DIS C HARGE Grievances relating to the discipline or discharge of employees account for the largest number of disputes referred to arbitration. The law does not allow non-union employers to suspend employees unless the employment contract provides for suspension. When there is such impact. Reasonable notice is based on the employee's age. and as explained below. he or she may file a grievance. such as theft.Chapter 9 Administration of the Collective Agreeme nt If management establishes a rule. If employee misconduct is not proven or the court does not view the conduct as being severe enough to amount to just cause. the employer cannot impose discipline unless the misconduct impacts the employer's business interests. discipline up to and including discharge is possible. Most employment contracts do not refer to discipline. The nature of the misconduct and the business conducted by the employer will be important. T he same misconduct may or may not justify dismissal or discipline depending on the nature of the business. position held. accordingly. but the arbitration of disputes is mandatory in unionized workplaces. length of service. but an arbitrator ordered her 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. and other factors. a case where a union successfully challenged a rule regarding the use of lights and sirens in ambulances was referred to. The employer dismissed the worker. an arbitrator may order the penalty imposed by the employer be reduced. Some non-union employers may adopt a conflict resolution process and refer to it as a grievance procedure. subject to the possibility that the suspension will be reduced or rescinded by an arbitrator. P OSSI 8 LE G RO U N OS FO R DI SC IPLI N E O R 0 ISC H A RG E A list of possible grounds for discipline is provided in Figure 9-5. The law does allow unionized employers to suspend employees who are guilty of misconduct. the union does not have to wait until management applies it and disciplines someone before filing a grievance. but it illustrates the broad nature of the grounds for discipline. The only remedy available to the non-union employee is an award of damages to compensate the employee for the reasonable notice that he or she should have been provided. The non-union employer may dismiss an employee without giving any notice if the employee is guilty of misconduct that is severe enough to be just cause for dismissal. a residential care worker in a facility for mentally challenged individuals pleaded guilty to theft after a shoplifting incident away from the job. In another 251 . 25 T he possibility of reinstatement is one of the most significant implications of unionization for employers and employees. When a unionized employee has been disciplined or discharged. This could involve a suspension being reduced or rescinded. a non-union employer cannot usually suspend employees who are guilty of misconduct. The grievance and arbitration process is one of the key features distinguishing union and non-union workplaces. which is referred to below. the employer will have to give reasonable notice to end the employment relationship. A non-union employee who wishes to challenge a dismissal for just cause will have to sue the employer for wrongful dismissal. If an employee is guilty of misconduct away from the job. The list is not exhaustive. Swdies have found that arbitrators have reinstated approximately one-half of employees who have been discharged. t he discharge of a municipal electrical inspecror who had been convicted of growing marijuana was upheld. l ateness 4 . it should inunediately advise the union of the additional grounds that it will be relying upon. If the employer discovers additional misconduct after the termination. because it was not referred to at the time of the discharge. a teacher was tenninated on basis of attendance and performance issues.26 . if an employee was discharged for assaulting a co-worker. even if the employer did not know about the theft at the time of the dismissal. including damaging property or assaulting co-workers 7. the employer could not try to substantiate the discharge at the arbitration hearing by arguing that the employee was also guilty of theft. Off-duty behav iour that affects the employer's business 10. T he employer will first have to establish a connection with and harm to the employer's business or reputation. Theft 5. Although the union objected to the introduction of the evidence relating to the misuse of the computer system. In the previous example of a theft. incl uding refusal to follow orders 9. a criminal conviction for conduct away from the job will not in itself justify discipline. Insubordinati on. Misconduct on the job. they should carefully investigate before imposing discipline. Incompetence 8.252 Cha pter 9 Administration of the Collective Agreement FIGURE 9-5 Grounds for Discipline 1. the arbitrator held that it could be referred to because the employer could not have known about it previously. This is a point on which the union and non-union workplaces are different. the employer discovered that the teacher had apparently downloaded pornographic material to the school's computer system. After the termination. If a non-union employer dismisses an employee and is defending against a wrongful dismissal action claiming there was just cause. Falsification of employ ment records or documents such as attendance records or expense statements 6. Because unionized employers may encounter difficulties when they refer to misconduct not raised at the time of the dismissal. In one case. and the union had been inunediately advised abour the additional grounds for termination. PROCEDURAL MATTERS Sta ting the Grounds for Discipline Arbitrarors generally require employers to justify the discipline on the basis of the grounds stated at the time the discipline was imposed. unless the employer could not have known about the theft at the time of the termination. it may use the theft as a defence in a subsequent wrongful dismissal action brought by the employee. Fail ure to attend 2. T hey 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. In short. it is allowed to refer to misconduct that came to the employer's attention after the distnissal without any problem relating to whether the employer should have previously known about and referred to the misconduct. l eaving work without permission 3. Breach of company rules case. For example. When a discharge or other discipline is imposed. T he doctrine of culmiMting incident provides that if an employee has been guilty of a final act of misconduct. followed by a written warning. and ultimately discharge. that is. (2) factual issues. there are three main areas of potential dispute: (1) the procedural requirements of the agreement. (2) suspension (time off without pay). (4) dismissal. PO SSIBLE DIS C IPLINE An employer may impose the following discipline on an employee guilty of misconduct. the employer should advise the employee of the previous record that has been considered. depending on its severity: (1) a written warning. a suspension. 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. For example. T he employee would be given a final warning. 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. If an employee deliberately damaged or destroyed property. which might not justify dismissal by itself. however. Progressive discipline is based on the assumption that the purpose of discipline is to correct misconduct and restore the employment relationship. an arbitrator might order the employee to compensate the employer. • Employers cannot impose discipline twice for the same misconduct. Progressive discipline often begins with a verbal warning. subsequent longer suspensions. 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. T he employer can suspend an employee while an investigation is being conducted. it should be made clear that the matter is still under investigation and a final decision on discipline is forthcoming. establishing whether there was any rnisconduct. • Employers cannot penalize employees by reducing or eliminating their seniority. the employer is allowed to take into consideration the employee's previous disciplinary record when determining the appropriate penalty for the most recent incident. Arbitrators have ordered discipline to be reversed in cases where employers have not complied with Progr essi ve discipline means that the employer imposes a lesser penalty for a first offense and applies more severe penalties if there is further misconduct. (3) demotion. employers are expected to apply progressive discipline. If an employee was guilty of making a false claim for sick days.Chapter 9 Administration of the Collective Agreement 253 Culmina ting Incident The unionized employer is allowed to refer to the employee's previous record when determining the penalty to impose. Restrictions on possible discipline are as follows: • Employers cannot impose fines unless the collective agreement provides for them. and (3) the propriety of the penalty imposed by the employer. Culminating inci dent is a doctrine provid ing that if an employee has been guilty of an act of miscond uct the employer is allowed to take into consideration the employee's previous record in determining the appropri ate penalty. H owever. Applying this doctrine. a fine should be distinguished from an order to compensate the employer for damages. the employer may be able to discharge an employee after misconduct that by itself would not justify dismissal. Except for serious misconduct such as attacking a supervisot. . meaning they should impose a lesser penalty for a first offence and apply more severe penalties if there is further misconduct. ARBITRATION IS SUES AND OUT COMES At the arbitration hearing. the employer may discharge the employee if the previous record included numerous other offences for which warnings and suspensions had been applied. and employers may wish to consult with legal counsel in their jurisdiction before proceeding w ith the videotaping of employees. If it is alleged that the employee has abused the employer's e-mail system or damaged employer property. and time limits for imposing discipline. H owever. A grievance was filed. payment of any earnings lost because of a suspension. the grievance will be upheld and the discipline reversed. and admitted videotape evidence on the basis that it is relevant to the issue at hand. The re was no evidence that the employee had been called to work and had decli ned.P. An arbitrator would order rein statement if necessary.S. Some employers have attempted to use surreptitious videotape evidence to show that an employee is guilty of misconduct such as making a false injury claim. the employee denied that he was able to wash a car. and if the employer does not meet the requirements of the test. The employee claimed that this accommodation was not sufficient because he had an aversion to water a nd the dietary technician job involved washing dishes and othe r cleaning. 131 LAC (4th) 97 . The arbitrator held that the employer did not have a reasonable basis for undertaking the surveillance of the employee to begin with. written reasons for discipline. Tlus involves videotaping of the employee away from the workplace without the employee's knowledge. The investigator videotaped the employee in his driveway washing his car and watering a tree. r \__ . This is an evolving area. In the meantime. Tl1ere is no consensus among arbitrators across Canada on the issue of whether such evidence will be admitted.E. the employer must establish this misconduct through witnesses and documentary evidence. The employer did not have a policy against moonlighting.1 Should the test for the admissibility of video evidence be based on relevancy or reasonableness/ 1 ·Centre for Addiction and Mental Health and O.254 Chapter 9 Administration of the Collective Agreement provisions requiring union representation at disciplinary meetings. and at the arbitration hearing the employer attempted to introduce the videotape as ev idence. and the employee had not been told that he could not work wh ile he was away.U. employers should carefully investigate before proceeding with discipline. the employee was transferred to the job of a dietary technician as part of an accommodation. many arbitrators are now applying a reasonableness test to protect the privacy rights of employees. Some arbirrators have applied a relevancy test. Because the employer did not have reasonable grounds to engage in the surveillance of the employee. If the employer fails to establish the misconduct. the videotape was not adm issible. Accordingly. In a subsequent interview wi th the employer. Labo Is Surreptitious Videotape 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 compl aint against him. To meet the requirements of the test. The employer dismissed the employee on the basis of the videotape ev ide nce a nd the interview. Tl1e 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. and the removal of any warnings or related material from the employee's record. Factual Matters T he employer has the onus of proving that there was misconduct by the employee. A co-worker adv ised the e mployer that she thought the employee was working for another employer while he was on the paid suspension. and the arbitrator ruled that the evidence was inadmissible. the employer w ill have to show that it considered less intrusive steps to deternune if the employee was gu ilty of nusconduct. The employer hired an investigator to determine if the employee was working elsewhe re. Labour Relations Issue 9-4 illustrates how the reasonableness test could lead to a videotape being excluded. The union objected to the admissibility of the videotape. the videotape evidence will not be adnlitted. The length oi service of the grievor 3. Arbitrators have reduced the penalty in cases where it would impose a special economic hardsllip. the arbitrator must determine whether the misconduct was serious enough to deserve dismissal. Discipline and discharge cases are decided on a case-by-case basis. or was provoked by management or another employee. In any particular case. Whether rules were brought to the attention oi employees 9. where the discharged employee would have special difficulty finding another job. British Columbia illustrates an alternative policy option where the arbitrator's authority to reduce the penalty cannot be eliminated by a specific penalty provision in the collective agreement. the penalty of discharge may be too severe.for example( the fai lure of the grievor to apologize Employers should ensure that rules are consistently enforced. The previous record of the grievor 4. The seriousness of the misconduct is an imporranr factor. the arbitrator has the authority to reduce a discharge to a suspension or reduce the number of days of a suspension. . an arbitrator would not uphold a suspension. Whether the grievor initially den ied or admitted the misconduct 10. or. one or more of the factors listed may be referred to. The uni formi ty of enforcement of rules 8. it is more likely the penalty would be reduced. The seriousness of the misconduct 2. Key Considerations 9-llists the factors that arbitrators have considered when determining whether to uphold or reduce a penalty. there may be different outcomes in cases that look similar. T llis means that unless the collective agreement provides for a specific penalty for the misconduct. In discharge cases where the arbitrator has determined that there has been misconduct. Because there are so many different factors that might affect the outcome and possibly lead to a penalty being reduced. If the employer has established rules relating to parking. Considerations 9-1 Factors Arbitrators Consider When Reviewing Discipline Imposed by the Employer 1.Chapter 9 Administration of the Collective Agreeme nt 255 Appropria teness of the Pena lty Imposed Labour relations legislation in all jurisdictions except British Columbia provides that unless the agreement provides for a specific penalty for the misconduct. The arbitrator cannot order the penalty to be increased. because failing to do so may lead to a penalty being reduced or reversed. order that the employee be reinstated with a lesser penalty such as a suspension. where the conduct is not sufficiently serious to warranr dismissal. If the employee has a long record of service without any previous discipline issues. The arbitrator may uphold the discharge. In \. Whether the misconduct was premeditated or comm itted on the spur of the moment 6. for example. If an employee is merely guilty of swearing at a supervisor. Other factors that might be considered. Whether the penalty creates special economic hardshi p 7. if the employee struck the supervisor. H owever. but the rules have not been enforced. the arbitrator has the authority ro reduce the penalty imposed by the employer. The penalty may be reduced in cases where the offence was parr of an emotional outburst as opposed to being premeditated. a discharge would be more likely to be upheld. Provocation by management or other employees 5. the agreement could provide that if the employee does not maintain a specified attendance level in the future. An LCA is potentially advantageous to all parties involved." In a few exceptional cases. and it was established that there were family problems causing stress. a long-term employee with a clean record confessed to the police. there are guidelines that management should follow. If the union and the employee insist upon reinstatement. The arbitrator ordered that a 13-month suspension be substituted for dismissal. In this situation. except to determine whether the agreement has been breached. The employer retains an employee who might be valuable if rehabilitated. L AST C H A N C E A G REE M ENT S A last chance agreement provides that an employee gu ilty of misconduct w ill be retained or reinstated subject to cond itio ns being met and will be discharged i f the agreement is breached. where employees have not shown a willingness to change their behaviour. If an employee has a poor attendance record. and discipline including warnings and suspensions has not remeclied the problem. 27 \Vhen dealing with a problem employee. he or she will be dismissed. The clischarge was upheld. but subsequently in the employer's investigation claimed that he had the right to take the gasoline. In one case. he or she would be discharged. such as maintaining a certain level of attendance or obtaining help for a substance abuse problem. A last chance agreement (LCA) is an agreement between the employer. . T he w1ion avoids the trouble and cost of an arbitration hearing. 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. discussed below. In an other case. a long-term employee with a clean record confessed to the theft and made an offer of restitution. The following question 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. and an employee guilty of misconduct that the employee will be retained or reinstated subject to certain conclitions being met. perhaps including some compensation. IM PLI CATI O N $ FO R EM PLOY ER S AN D UN IO N S Because a discipline or discharge decision made by management might be reviewed at arbitration. arbitrators have awarded compensation instead of reinstatement.256 Chapter 9 Administration of the Collective Agreement cases where employees have been found guilty of using an employer credit card to purchase gasoline for personal use. and the possibility of discharge may motivate the individual to rehabilitate. The employee avoids dismissal. he or she will be terminated and will not have the right to have the clismissal referred to arbitration. an LCA might be entered into. If the employee failed to meet the conditions. 28 T he arbitrator has the authority to order an employee to be reinstated subject to certain conditions. and avoids the cost and Wlcertainty of an arbitration hearing. there have been different outcomes. the union. the employer may wish to pursue a settlement with the union that avoids reinstatement. An arbitrator may make an order similar to an LCA with or withour a request from one of the parties. T here are potential human rights problems with LCAs. such as maintaining a certain level of attendance or obtaining medical treatment. The agreement further provides that if the employee fails to meet the conditions. which are listed in Key Considerations 9-2. Key Considerations 9-3 outlines steps the union should take to ensure that an employee who has been disciplined or discharged is provided with proper representation. the employer may wish to get legal advice about the possibility of convincing an arbitrator to award compensation instead of reinstatement. Take up the alleged misconduct w ith the emplo)•ee and allow the employee an opportunity to respond . 5. any confession or apology. Advise the employee about the steps in the grievance and arbitratio n process. 2. 4 . refer to all of the misconduct that is the basis for the discipline. /'-· and if necessary clarify expectatio ns for future behav iour. inform the employee of the d iscip line being imposed. Ensure that the procedural rec1uirements oi the collective agreement. suc h as union representatio n at d isc ipl inary meetings and written reasons fo r discipline. including a leave or layoff. In the case of a discharge. Seniority continues to accumulate during periods when employees are not working. SENIORITY ACCUMULATION AND TERMINATION OF SENIORITY Employers must ensure that seniority is recorded in accordance w ith the collective agreement and the law. adv ise the employee of the future consec1uences oi misconduct. In a d iscipl inary meeting and letter. Ensure that any rules have been communicated to employees and have been consistently enforced. Determine if the proced ural requirements of the collective agreement. the possibility of a last chance agreement w ith management. such as the employee's length of service. take up. 5. 7. Carefully investi gate and doc ument any miscondu ct through statements fro m w itnesses and w ritten material. consider the opti on of a last cha nee agreement. unless the agreement provides otherwise. review the facto rs th at an arbitrato r would consider w hen rev iewing the severity of the discipline. 6. incl uding prev ious mi scondu ct . Determine if any rules involved have been communi- cated to employees and consistently enfo rced. { \_ Considerations 9-3 Considerations for Unions Responding to Discipline 1. and whether the misconduct was deliberate. 8. 2. length of service. 3. W here appropriate. Before imposing any d iscipline. and obtain statements from potential w itnesses. have been met . Investi gate the inc ident(s) leading to the discipline. Obtain the assistance of legal counsel or the parent unio n if necessary. 3. W hen impos ing discipline. incl uding the employee's record. w here appropriate. Consider the factors that an arbitrator mi ght refer to w hen determining w hether to reduce the penalty. rev iew the misconduct for which discipline is being imposed. 7. the seriousness of the misconduct.Chapter 9 Administration of the Collective Agreeme nt 257 Considerations 9-2 Considerations for Employers When Imposing Discipline 1. 4 . 6. Employment sta ndards legislation may requ i re seniority to continue to c . are being met. such as unio n representation at discipl inary meetings and w ritten reasons fo r discipline. 30 T here are some procedural matters in the job posting and selection process that employers should be aware of. managerial ability was subsequently an important criterion referred to in the selection process. In Chapter 7. however. the employer can reduce hours of all employees in a bargaining unit. however. when in fact it was not a legitimate job requirement. as a termination relying on the deemed termination provision could be discriminatory. T he employer cannot post a job setting out certain criteria and then make the selection decision on the basis of different criteria. 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. he or she is automatically terminated. Accordingly. T he employer may determine the job specifications for a position. Some arbitrators have held that the employment relationship is not terminated if the employer fails to do so. it was held that there had been a constructive layoff. The collective agreement . it was noted that the collective agreement could specify whether time spent working outside of the bargaining unit would be counted towards seniority. and this will not be viewed as a layoff. Collective agreements that do not permit seniority to accumulate may contravene the legislation. and arbitrators have found this discriminatory. arbitrators have held that there is a breach of the agreement and ordered the employer to post the job. 32 LAYO FFS Constru ct ive layoff refers to the reduction of hours for some employees. In a case where the employer reduced hours for some employees but not others. 33 Instead of reducing the hours for some employees in a bargaining unit. In one case where an employer provided that the ability to speak a second language was required. An arbitration board ordered that the job be posted again and the selection process be repeated. j O B P OSTING A ND S ELE C TI O N PR OC ESS Although an employer might prefer to hire part-time employees to fill an opening instead of posting for a full-time job. an arbitrator found that the procedure was flawed and ordered the job to be reposted. applying the seniority rules in the agreement. Grievances have been filed in cases where employees have lost jobs because their seniority did not accumulate during absences caused by illness or accident. 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. the employer will be required to lay off employees. T he employer will have to look at the definition of a layoff provided in the collective agreement to determine whether the layoff provisions of the contract apply.31 The job posting procedure must be applied in a reasonable manner without any discrimination. Unless the agreement provides otherwise. The administration of this provision may require the employer to notify the employee about the termination and allow him or her to respond. that is not permitted if the agreement requires vacancies to be posted.258 Chapter 9 Administration of the Collective Agreement accumulate during leaves such as pregnancy and parental leave. In one case. those specifications must be reasonable requirements for the job. the posting for the position of a charge nurse referred to clinical skills. The collective agreement may contain a deemed termination provision that states that if the employee is absent for a specified time. The employer cannot avoid the layoff and seniority provisions of the agreement in this manner.29 A human rights issue arises if the deemed termination provision is applied to an employee who was absent because of a disability. 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. As noted in Chapter 7. it was found that the interview was unfair. An arbitrator found that the employer placed 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. ASSESSING SK ILL AND ABILITY The collective agreement may require the employer to determine the ability of employees when filling job openings. One of the rights of an employee on layoff whose seniority has not yet been terminated is the right to be notified of any job vacancies posted. In a majority of the 56 cases (52 percent). and relevant to the job requirements. granting the job to the employee on layoff without posting would mean that the employee with less seniority was being given priority. they must be conducted fairly. Although the terms of a particular collective agreement might affect this situation. and abilities required for the job and (2) giving the interview results too much emphasis and failing to consider factors 259 . however.35 T his gives more emphasis to seniority. the same for aU employees. be related to job requirements. If there is a job opening. T he main problems found with the interview process were: (1) using interview questions that failed to measure the knowledge. Labour Arbitration Cases and Canadian Labour Arbitration Summaries. 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. In one case where the position being filled was in maintenance and involved welding and other manual work. and given the appropriate weight. When employers are determining the skill and ability of employees competing for a job. RE CA LLS Individuals who have been laid off are still employees until the collective agreement provides otherwise. The weight that should be given to the interview will depend on the type of job involved. If the employee on layoff had two years of seniority and another employee in the bargaining unit had three years. The employer must post the job instead of simply recalling employees on layoff. It is possible for the parties to establish a definition of layoff providing that a temporary reduction of hours does not constitute a layoff.37 The study examined all reported arbitration cases relating to the employment interview from two sources. and recalling employees. tests must be conducted fairly. the employer did not consider the application of a candidate who was unresponsive during the interview. Interviews can be used.34 T he 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. laying off. the job posting requirement must be complied with. Testing can be used.Chapter 9 Administration of the Collective Agreeme nt in the case referred to did not define layoff. they may use a range of tools. howeve!. Relative ability and sufficient ability provisions were referred to in Chapter 7. it has been held that unless the job that is open is the one an employee on recall was previously laid off from. the agreemenr will usually provide that employees lose their seniority and employment status after a specified time on layoff. the question the employer faces is whether the job should be filled by recalling an employee on layoff or by posting the job. from 1987 to 1996. skills. 36 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. Ensure that the inform ati on relating to job duties and qualif ications is current. 2. Use a structured interv iew format. (f ort Worth. HUMAN RIGHTS ISSUES IN THE ADMINISTRATION OF THE AGREEMENT H uman rights issues are critical in the administration of collective agreements. l. in some circumstances. 4. Restri ct the use of the interv iew to important job-related knowledge. 5th ed. the arbitrator has the authority to order an employee to be placed in a particular job and award damages for lost earnings. " 38 . 2001). It is recommended that employers refer to the literature relating to employment interviews and consider adopting measures listed in Key Considerations 9-4. the most common remedy is an order that the employer post the position again and repeat the selection process. One arbit rator 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. Others look into whether the management decision was actually correct. Gatewood and Hubert S. Use more than one interv iew questi on to assess key attributes.260 Cha pter 9 Administration of the Collective Agreement such as performance appraisals and work history. However. a disciplinary record that indicated the employee had difficulty relating to others would be a factor. \ \ Considerations 9-4 Ways to Increase the Validity and Fairness of Employment lnterviews 1 1. and abiliti es that the interview can be used to assess. Limit the use of pre-interv iew data about candidates. 6. Human Resource Selection. Train interviewers o n the interv iew process and human rights issues. 5. 3. Feild. If the job required tact and diplomacy to deal with customers. In layoff cases. or unreasonable. skills. TX: Harcourt Co ll ege / . They think they should defer to management's decision unless evidence shows it to be fundamentally flawed . Use a fo rmal scoring system that measures each attribute separately. In cases relating to job posting and promotions. 7. Some only intervene when it is established that the decision process has been arbitrary. Publishers. an arbitrator may simply award the job to the grievor. REMEDIE S AT ARBITRATION Arbitrators considering promotion decisions made by management take two different approaches. discriminatory.Robert D . ( ~ The employer may take into consideration an employee's discipline record if it is relevant to the job the employee is being considered for. 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. If a LCA imposes conditions on the employee with disabilities that are more onerous than those imposed on other 261 . If an employee's absence is caused by a disability. the employer is allowed to respond. Last Chance Agreements. it may become a party to the discrimination by impeding the employer's reasonable efforts to accommodate. Although the employer will normally be in a better position to facilitate an accommodation. 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). An employer cannot terminate an employee with a drug or alcohol dependency unless it has acconunodated the employee to the point of undue hardship. Here we wiU look at the implications of human rights legislation for the administration of the collective agreement. by agreeing to the rule or provision inside or outside of the collective agreement. and it is discrimination to withhold employment or treat a person differently because he or she has a disability. it was noted that a discriminatory rule or requirement cannot be a BFOR if the employee can be acconunodated. A union could become a party to discrimination in two ways: (1) the union may participate in the formation of a rule that has a discriminatory effect. where the union has not agreed to the discriminatory measure. Discipline Employees cannot be disciplined for behaviour caused by a disability. EMPLOYER AND UNION OBLIGATIONS Employers and Accommodation Employers and unions are prohibited from discriminating on the basis of any of the prohibited grounds provided in human rights legislation. For example. In particular. the employer cannot impose discipline. the union still has a responsibility to put forward measures to accommodate. Human rights legislation presents special problems regarding the enforceability of LCAs. 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. However. The elements required to establish a BFOR were reviewed in Chapter 2. The employee would have an obligation to control the situation by taking the necessary medication.Chapter 9 Administration of the Collective Agreement The principles of human rights legislation were considered in Chapter 2 . this is discussed in a separate section below. or (2) where the union did not participate in the formulation of the rule. The union's duty only arises when its involvement is required to make an accommodation possible because no other reasonable accommodation can be found. The employer has a duty to accommodate provided that the accommodation would not impose an undue hardship. In the second situation. The nature and extent of the union's accommodation obligations will vary depending on how the duty arises. an arbitrator would likely overturn any discipline imposed. If it was established that an employee guilty of 1nisconduct had a bipolar disorder that could be controlled with medication. A w1ion that has agreed to a discriminatory term is jointly responsible with the employer to seek accommodation for the employee. Unions and Accommoda tion The union has a dury to accommodate if it is a party to discrimination. Dependency on alcohol or drugs is a disability under human rights legislation. 262 Chapter 9 Administration of the Collective Agreement employees.39 Establishing a LCA does not by itself mean that the employer has met the duty to accommodate to the point of undue hardship. In a case where an employee had attendance and performance problems caused by a mental disability he was rein stated pursuant to a LCA that contained numerous conditions. T he arbitrator commented on the conditions as follows: "In my view. and disability. the collective agreement provided that work done on a Sunday required the payment of overtime. it was held that the union's . T he terms of the LCA must be considered. an arbitrator will order that it be eliminated unless the employer can show that it is a BFOQ or BFOR. however. T he 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. If there is no way to acconunodate other than an arrangemenr that involves a variation from the collective agreement. it may be advisable to seek legal counsel. instead of those stipulated by paragraph 5 of the LCA would not have imposed undue hardship on the employer. it does not have to agree to any measures that would impose undue hardship upon other employees in the bargaining unit or the tmion. gender. Job Posting a nd Selection If any requirement in a job posting is discriminatory. provided it does not impose an undue hardship. When an employee was not able to work on Saturday because of religious belief.the agreement may not be enforceable. The employee was reinstated pursuant to a LCA providing that if the employee's attendance fell below the six-month average for the department he would be terminated. Subsequently the employee was absent because of a blood pressure condition and was discharged. For example. the result may be that the agreement is unenforceable. When the agreement contains terms that are unreasonable-terms that the employee could not be expected to meet. Accommodation of Employees and Seniority Although employees may require accommodation because of any protected ground of discrimination. the imposition of more reasonable terms such as I have oudined. the company proposed that the employee be allowed to work Sundays without the payment of overtime. If it would not have been an undue hardship to impose less stringent conditions. In one case. Some of the possible measures to acconunodate an employee were referred to in Chapter 2. In determining an employee's seniority. a 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. " 40 This means that if an employer insists on more onerous conditions in a LCA because it has the upper hand when it is negotiated. The union has an obligation to cooperate with the employer's attempts to accommodate. In summary. most acconunodation issues relate to religion. It was held that the agreement was discriminatory because it imposed a level of attendance not required of other employees. Because a LCA will have to be carefully prepared. the union must agree to this variation. In the end. In one case. I can only conclude that this provision was put in the LCA because that was the bargain that the employer expected in return for Burns' reinstatement. the job posting may not specify the gender of applicants unless that is a BFOR. 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 employer must ensure that periods of absence caused by disability are not excluded. an employee was discharged because of absenteeism caused by a mental disorder. the LCA will not be upheld if the employee breaches the terms. it may be found that the agreement violates human rights legislation and is unenforceable. This distinction is important because employers cannot impose discipline for innocent absenteeism. Cases have established that acconunodation can override seniority only as a last resort to allow an employee with disabilities to be given preference. Arbitrators have not been willing to require an incumbent employee with seniority to be displaced from a job as part of an accommodation. Other measures that do not require a variation from the collective agreement must first be considered. Although the law does not allow the employer to discipline employees for iru1ocent absenteeism. Innocen t absenteeism is absenteeism where the employee has no control over the absence from work. INN OC ENT A BSENTEEI SM A distinction must be drawn between culpable and non-culpable or innocent absenteeism. T hey may be willing to allow an employee who needs accommodation to move into an open job ahead of employees who have more seniority. including providing necessary medical information and where necessary seek treatment. Employers should ensure that any attendance management programs or policies distinguish between culpable and innocent absenteeism. a nurse was terminated for drug use and theft of drugs from the hospital where he worked. For example. the employee could not refuse to work evening hours if tha t was a reasonable accommodation. and when he failed to discharge that duty. (2) they must co-operate in attempts to provide accommodation. 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 had been met. Culpa bl e absenteeism is absenteeism in w hic h the employee is at fault or there is blameworthy conduct. The arbitrator confirmed that the employee had a duty to take some responsibility for his rehabilitation. EM PL OY EE OBLIG ATI O N S Employees have three primary obligations relating to accommodation: (1) they must communicate their need for accommodation. they cannot expect a perfect solution. and (3) they must accept reasonable attempts to accommodate. a possible acconunodation might involve moving an employee to a job that is open. and allowing an employee in need of accommodation to move into an open job ahead of other employees. If an employer was attempting to accommodate an employee's religious beliefs by rescheduling the employee's work. another employee who has more seniority may want the job. NoN-DISCIPLINARY MEASURES FOR INNOCENT ABSENTEEISM C ULPA BLE VS . In one case. A distinction has been drawn between bumping an employee with more seniority from his or her job to accommodate. such as absences caused by sickness or injury. if there is no other way to accommodate. Culpable absenteeism is absenteeism in which the employee is at fault or there is blameworthy conduct. The employer's duty to accommodate may lead to a conflict with seniority provisions. Innocent absenteeism is caused by factors beyond the employee's control. The employee had been given opportunities to overcome his addiction and had signed a LCA. Skipping work to attend a baseball game or repeated absences on Fridays are examples. it is still possible for the employer to take action to deal with this issue. however.Chapter 9 Administration of the Collective Agreeme nt 263 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. . or demotion. and his or her absence imposes an undue hardship for the employer. and it was likely that his attendance would improve. subject to any provisions in the collective agreement.that is. An employee cannot be discharged for iru1ocent absenteeism if the discharge would prevent the employee from receiving benefits payable under the agreement for disability. . T he Canada Labour Code provides that " The trade union . If the disability benefits vest so that employee status is not required for the continued payment of benefits. discriminatory. . An employer might deal with the issue using alternative measures including transfers. . and (3) the employer has accommodated the employee to the point of undue hardship. The employer has an obligation to notify the employee of the standard of attendance required and the consequences of failing to meet it. the employee could not be discharged. (2) there is no reasonable likelihood of attendance improving in the future. 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. the employer cannot discharge the employee if he or she might be acconunodated without undue hardship. if the employee could be moved to an alternative position that was within his or her capabilities.41 DUTY OF FAIR REPRESENTATION N ATURE O F THE U NI O N 'S DUT Y O F FAIR REPRE SENTATI O N Th e duty of fa ir repr esentatio n r>rohibits the union from acting in a manner that is arbitrary. If the disability payments provided for in the agreement require individuals to be employees to be eligible for payments. 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. because it had not taken into consideration the fact that he had undertaken to give up playing football. Labour relations legislation in most jurisdictions provides that the union has a duty of fair representation. . it would be possible to transfer or demote the employee to another area. a duty to act fairly in the course of representing employees in the bargaining unit. Where the absence is caused by a disability. the employee cannot be discharged until the disability coverage has lapsed. If an employee has special skills and training for a particular department. For example.264 Chapter 9 Administration of the Collective Agreement N ON -DIS C IPLINARY DI SC HARGE Employers may terminate employees for innocent absenteeism where: (1) the employee's past absence has been significantly greater than the bargaining unit average. In one case. which provide employees with income when they are unable to work. the employee may be discharged. " 42 All jurisdictions other than New Brunswick and Prince Edward Island have a similar provision. Disability payments. RE SPO N SES OTHER THAN DISCHA RGE T here might be circumstances in which a response other than termination for innocent absenteeism would be appropriate. must be distinguished from health benefits such as eye and dental protection. . . or in bad faith. A contract provision for health benefits does not prevent a discharge for innocent absenteeism. medical leaves. Chapter 9 FIGURE 9-6 Administration of the Collective Agreeme nt Jurisdictions Providing a Union Duty of Fair Representation Extent of Duty Negotiation of Agreement Admini stration of Agreement X X British Columbia X X X Manitoba X Canada Alberta New Brunswick Newfoundland X Nova Scotia X X X Q uebec X X Saskatchewan X O ntari o Prince Edward Island In all nine jurisdictions. at the time. Generally. some cases have held that gross negligence is a violation. in other jurisdictions. the duty applies to the administration of the agreement. The employees subsequently filed a complaint that the union had breached its duty of fair representation. 265 . In one case. the duty applies both to unions that have been certified and to unions that have been voluntarily recognized.43 T he Canada Industrial Relations Board now interprets the Code so that the duty applies to contract negotiation. whether or not they are union members. It has been held that lmintemional errors are not a violation of the duty. and a complaint relating to a union's conduct during negotiation could be made. H owever. 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. The duty could become an issue regarding the filing of grievances and referral of grievances to arbitration. and fairly determines that it would not be of any value to proceed. In Saskatchewan. it is not a breach of the duty if a grievance is not processed or referred to arbitration. the union negotiated a provision for a pension plan despite the fact that employees indicated they did not want the plan. In the jurisdictions in which the duty of fair representation includes the negotiation of the contract. If the union listens to an employee's complaint and considers the matteJ. and in some jurisdictions noted in Figure 9-6. the union does not necessarily have to follow the instructions of employees. 44 The duty applies to all members of the bargaining unit. T he 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 does not arise where the union has been voluntarily recognized. a group of federally regula ted employees filed a complaint that a union had failed to negotiate a wage increase for them. t he duty of fair representation did not apply to contract negotiation in the federal jurisd iction . The complaint was dismissed because. The Labour Relations Board held that the union is not limited to following instructions of employees who are presently in the bargaining unit. In one case. the duty also applies to the negotiation of the agreement. Newfoundland and L1brador. Nova Scotia. D irecting the uni on to post a notice confirming it w ill refrain from any future vio lati ons In the jurisdictions without a duty of fair representation provided in labour rela tions legislation. if the parties agree. there may be an implied duty at common law and legislation may prohibit specific union practices. Accordingly. a Board could order an employer to proceed to arbitration as part of an order providing a remedy for the union's breach of fair representation. T hey might also agree on a process that will not allow la wyers. The possibility of the parties including a voluntary expedited arbitration process in the collective agreement was referred to in Chapter 7. The labour relations legislation in seven jurisdictions.Alberta. Manitoba. the arbitrator is required to deliver an oral decision immediately or as soon as possible. D irecting the unio n to meet w ith bargaining unit employees 5. the employer should ensure that any information relating to a grievance is retained for a few years. T he Minister is required to appoint an arbitrator who must commence hearings on the matter within a specified number of days of the request. some of which might affect the employer. at the unio n's expense 3.266 Chapter 9 Administration of the Collective Agreement FIGURE 9-7 Possible Labour Relations Board Orders to Remedy a Breach of the Duty of Fair Representation 1. or require evidence to be limited to written statements. Generally the legislation provides that either the union or the employer may request the Minister of Labour to appoint a single arbitrator. it has the authority to order remedies as listed in Figure 9-7. Employers should note that even though the time to refer a grievance to arbitration may have expired. Directing the unio n to pay damages to the employee 4 . Expedited arbitmtion resolves issues more quickly by providing for shorter time limits for arbitration. In some jurisdictions. and Ontario-provides for an expedited procedure that is available upon the request of one of the parties. Prov iding the employee w ith independent legal counse l at the arb itratio n hearing. An employee who thinks there has been a breach of the duty may file a complaint with the Labour Relations Board. British Columbia. . and slow. expensive.45 IM PLI C ATIONS FOR EMPLOYERS AND UN IONS A breach of the duty of fair representation is an unfair labour practice.46 There is some variation between jurisdictions on the details. Some alternatives that may be less expensive or help the parties improve their rela tionship are reviewed here. PROBLEMS WITH ARBITRATION T he arbitration process has been criticized as being too legalistic. New Brunswick. Directing the unio n a take a grievance to arbitration and require the employer to proceed even though the time limits have not been met 2. EXPEDITED ARBITRATION Expedited arbitration enables faster resolution of disputes referred to arbitration by providing for shorterti me Iimits in the process. If the Board determines there has been a breach. (2) a lower cost than arbitration. One study indicates that it takes only an average of 15 days to get to a mediation conference. and the employer's decision may be overturned. If one of the parties wishes to establish a precedent. It will not be suitable for all cases. it usually takes six to nine months to move from the request for arbitration to the final award. Arbitration is an important process in unionized workplaces. However. and recall employees may be reviewed at arbitration. In unionized workplaces. Gri~van c~ med ia tio n is a confi- dential process in w hich a mediator helps the parties negotiate a settlement to a grievance. (3) the potential to develop better solutions. with over 80 percent of cases referred being resolved. Mediation may work better with some types of grievances. and usually lawyers are not involved. there may be more incentive to negotiate. which may harm the relationship. Training should cover the procedural aspects of handling grievances. where there may be less certainty about the outcome of an arbitration hearing. in arbitration. . When grievances are referred to arbitration. replying to grievances.Chapter 9 Administration of the Collective Agreeme nt 267 G RIE VA NCE M EDI ATI ON Grievance mediation is a confidential process in which a mediator helps the parties negotiate a settlement. 3. grievance mediation may be worth considering. If he or she is familiar with the arbitration process and the possible outcomes. T hrough grievance mediation. Some studies have found that grievance mediation has a high success rate. T he costs of grievance mediation are much lower because mediators' fees are significantly less than those of arbitrators. The discharge of employees may also be challenged and an arbitrator may reinstate employees. including (1) the resolution of disputes in less time. he or she may use this information at the appropriate times to pressure the parties to avoid the costs and uncertainty of arbitration if the media tion fails. Policies and rules established by the employer may be subject to review at arbitration and may be overturned. because arbitrators tend to be more deferential to management decisions in this area. the mediator helps the parties reach a voluntary agreement. and the settlement of disputes. there will typically be a winner and a loser. T he procedures used to promote. In consultation with legal advisers. Instead of hearing evidence and providing a binding decision. Employers will likely have to engage the services of a law firm to deal with any grievances taken to arbitration. the employer should determine whether to proceed with an arbitration that could be costly. If the grievance relates to a seniority issue there may be less incentive for the employer to negotiate and make concessions. Employers should ensure that managers who might be affected by the grievance procedure receive the training they need to properly represent the organization. 2. 48 T hese results may be distorted because the parties may have referred cases to grievance mediation that had a high likelihood of success. they will want to proceed to arbitration. layoff. the parties may negotiate a "win-win" solution that will improve their relationship. It takes much less time to start the grievance mediation process. the employer's authority to manage will be affected by the collective agreement. or attempt to settle any particular grievance. Implications for Practice 1. because of the lower costs and other potential advantages. 47 Grievance mediation will not take as long as arbitration because the parties are not delayed by the painstaking examination and cross-examination of witnesses. and (4) protection of the relationship between the parties. Grievance mediation has several potemial advantages. It appears that the process works best if the mediator is an experienced arbitrator with mediation skills. In discipline and discharge cases. including absenteeism caused by a disability. The management rights article is an important term of the collective agreement that the employer may rely on to hire employees and make other operational decisions. Employers should take the measures referred to in this chapter. Key Terms agreed statement of facts. There are problems associated with grievance arbitration. layoffs. if this would not impose an undue hardship. Employers should consider consulting with the union to establish an acconunodation policy and protocol. In the course of acconunodating employees. 245 argument in the alternative. managers should be cautious regarding statements or conduct that could establish a practice that is different from the terms of the agreement. The employer must also show that an employee who is not attending because of a disability cannot be accommodated. Employers should confirm that any procedures established comply with the collective agreement and are fairly administered to avoid a possible challenge at arbitration. Accordingly. 8. 267 grievance rate. 253 culpable absenteeism. p. 10. Employers are not helpless when dealing with irmocent absenteeism. 5 . to avoid an arbitrator overturning disciplinary or discharge decisions. 241 . p.268 Chapter 9 Administration of the Collective Agreement 4. Employers should be prepared for the possibility that a Labour Relations Board might order an employer to proceed to arbitration even though the union failed to refer a grievance to arbitration within the time limits provided. 266 grievance mediation. Employers and unions should investigate alternatives such as expedited arbitration and grievance mediation to reduce costs and improve the union. 244 burden of proof. including communication and consistent enforcement of workplace rules. Employers should ensure that they are properly using instruments such as testing and carefully constructed interviews to select the most qualified individuals and avoid decisions being overturned at arbitration. a contract provision may have to be suspended or waived. p. and recall of employees. 7. p. p. 258 culminating incident. including delay and expense. 243 arbitrability. 264 estoppel. p .management relationship. Employers must have records to confirm past absenteeism and must investigate the likelihood of future attendance improving before taking action. p. the employer must examine possibilities that would allow the employee to be acconunodated within the terms of the agreement. Human rights legislation affects the administration of the collective agreement and in exceptional cases might even require the employer and union to vary from its terms. p . 263 duty of fair representation. p. 243 constructive layoff. 6. The union has a duty to fairly represent all employees in the bargaining unit. 9 . p. It is important that managers avoid an estoppel argument being raised by the union. If an employee cannot be acconunodated without a variation from the agreement. 248 expedited arbitration. The employer can use discipline and discharge to correct behaviour or remove employees who refuse to comply with workplace rules. The seniority provisions in a collective agreement can have major in1plications for employers regarding promotions. p. p. 242 last chance agreement. When can an employer discharge an employee for innocent absenteeism? 15. 8. 241 without precedent. 10. What are the primary functions of the grievance process? 2. Explain the possible benefits of the grievance and arbitration process to the employer. Explain why an employer may not be able to implement a measure relying on the management rights article in a collective agreement. Explain the criteria that would have to be met to ensure that the rules established are enforceable. either of the parties can make arguments "in the alternative. Explain why an employer may or may not wish to resolve a dispute using grievance mediation. 253 rights arbitration." Explain what this means. What are the factors an arbitrator would consider when reviewing the discipline imposed by an employer? 11. What are the advantages of a last chance agreement to employers. 238 ownership of the grievance. An employer wishes to establish rules for the workplace. Does the union have to take the grievance to arbitration? 4. p. T he union has filed a grievance. 241 Review Questions 1." 12. p.Chapter 9 innocent absenteeism. 242 without prejudice. 3. 242 waiver. A collective agreement contains a grievance procedure providing that if a grievance is nor resolved at Step 1 the union has five days to refer the marrer to Step 2. p. 242 obey now. 9. 256 minutes of settlement. 263 interest arbitration. unions. p. grieve later. Describe the union's duty of fair representation. p. What is the meaning and significance of the burden of proof in arbitration? 7. p. and explain how the employer could be affected by this obligation. 16. 241 Administration of the Collective Agreeme nt privileged communications. Explain the meaning of a "last chance agreement. Discussion Questions 1. At an arbitration hearing. 241 progressive discipline. and employees." Provide an example for each. Explain the meaning of the terms "arbitrable" and "inarbitrable. p . 6. p. p. If the union fails to refer the dispute to Step 2 until a month after the Step 1 response is received. and employees? 13. what should the employer do? 269 . Distinguish between rights and interest arbitration. 5. What are the key points rhat an employer should be aware of in connection with a job posting? 14. unions. p . An employee with a poor disciplinary record who was caught stealing the employer's property has been dismissed. p. and give an example of a union argument that illustrates this concept. p. What is the basis of the employer's objection. of its intention to submit a grievance to arbitration. (a) Assume you are a union official. The H ospital shall not contract out any work usually performed by members of the bargaining unit if. T he union referred the matter to arbitration on September 20.5 million investment." (b) "After exhausting the provisions of the grievance procedure. The system was similar to one used in the airline industry and involved a $5. A collective agreement between a hospital and the union contained the following: • a management rights article • a provision regarding contracting out that provided: " 12. The final preparation would be done at the hospital using new equipment that would be installed. An employee left work on a Friday afternoon prior to the end of his shift.01. One week before the hearing. On what basis might the union challenge this? (b) Assume you were an employer representative. A collective agreement provided that when a disciplinary interview was held a union steward would be present (hereafter referred to as Article 6). the grievance shall be deemed abandoned. The employee's position was that he had permission to leave. 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. The employer's position was that the employee did not have permission to leave early. On what basis might the employer defend the plan? (c) If you were an arbitrator dealing with this situation." The employer discharged an employee and a grievance was filed on his behalf by the union. on July 9.Chapter 9 Administration of the Collective Agreement 2. 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. including arbitration. the grievance may be referred to the next level of the grievance procedure. what would your decision be? 4. the lawyer for the employer advised the lawyer for the union that an objection would be made to the arbitrator's jurisdiction. and will the arbitrator allow the arbitration to proceed? 3. denying the grievance. either of the parties may notify the other party in writing within thirty (30) days of the final level reply. If the new system was adopted some hospital employees including cooks would be laid off. Subsequently the parties agreed to an arbitration date of July 5 in the next year. 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 the adoption of a new food preparation system that would involve food being assembled elsewhere by an outside company. if the Corporation fails to reply to a grievance in writing within the time limits stipulated in this article. as a result of such contracting out. In the course of the . On the day of the incident a manager called the employee at home and talked with him. Similarly. what would your decision be? (c) If the grievance is allowed. (a) On what basis. 7. Can the union challenge this? 6. and the candidates were asked questions such as "What does dependability mean to you?" T he employer scored the results of the interviews and tests to two decimal places and insisted that candidates would have to have scores that were absolutely equal before seniority would be considered. T he senior manager ordered that the suspension be increased to one week. The grievance was settled pursuant to an agreement that provided the grievor would be on probation for a year and seek treatment. An employee was guilty of misconduct. (a) What argument will the union make at the arbitration hearing? (b) If you were the arbitrator. and personal suitability. A grievance was filed that stated there was an "unjust suspension" and did not refer to Article 6. and other qualifications were relatively equal. The employer posted the job of lieutenant. A collective agreement provided that seniority would govern for promotion decisions if skill. what remedy should be ordered? 5. During the grievance procedure it became apparent that the employee had an alcohol problem. seniority would govern.Chapter 9 Administrat ion of the Collective Agreement telephone conversation the employee was advised he would be suspended for one week. T he 271 . where candidates were equal. if any. One week later. ability. 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. 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. On Nlonday there was a meeting at which a union steward was present. ability. He was discharged and a grievance was filed. T he employer used written tests and an oral interview to determine qualifications. indicating that candidates would be evaluated on their knowledge. T he collective agreement for a fire department provided tha t promotions would be based on skill. To assess dependability the employer relied solely on the interview. can the union file a grievance? (b) What outcome do you expect at an arbitration hearing? Explain. (a) Can a union and the employer agree that the grievance and arbitration procedure will not be used? (b) Is there any problem with tlus agreement? That is. a supervisor imposed a twoday suspension after consulting with the human resources department. Four months after the grievor was reinstated there was another absence for two days. 9. After an employee left work without permission. including threatening a supervisor. however. there was no change in the suspension. The employer terminated the employee. T he employee asked that the suspension be reduced and it was agreed that there would be a meeting to review the matter on Nlonday. The agreement also provided that if the employee was absent from work without a reason acceptable to the company he would be discharged without recourse to the grievance and arbitration procedure. is there any way the muon can avoid the termination? 8. abilities. and efficiency and that. Did the arbitrator uphold the penalty imposed by the employer? What factors did the arbitrator refer to when making the decision? Arlington Home for the Aged Gordon worked as a food service attendant at Arlington Home for the Aged. and then go to "Grievances.opseu-org). Do you agree with that decision? Under what circumstances would you allow this type of evidence to be used? Web Research Some unions provide arbitration decisions at their websites. he admitted that he had streaked his co-workers. washing dishes a nd preparing food. Assume that you are the a rbitrator hearing this case. Gordon had been working for his employer for almost three years when he was involved in an incident that led to his dismissal.8 percent of the highest-scoring candidate. written test. wav ing his arms to get their attention. can a grievance be filed? What outcome do you expect? 10. The next day Gordon bragged to several co-workers about what he had done and how funny it was. an a rbitration hearing was held. It was confirmed in the investigation that Gordon had attended training on these policies a nd was aware of thei r content. Questions 1. . On what basis. Conunent on the following statement: "Merit does not matter in a unionized workplace because of the seniority principle. What arguments will the union make at the arbitration hearing/ 3. "Are you uncomfortable with your body/" Gordon left the kitchen. This incident lasted a few seconds. The union representing Gordon filed a grievance a nd eight months after the incident. His job description included preparing food and assisting residents who could not feed themselves. What arguments will the employer make at the arbitra- tion hearing/ 2. and the employer could not condone sexual harassment in the workplace. T he job was given to the highest-scoring candidate. Gordon retu rned a few minutes later w ith his clothes on and laughed about what he had done. and one of Gordon's co-workers asked him. The employer terminated Gordon and a letter of termination provided that he had violated the employer's policies. Labour Relations Issue 9 -4 referred to a situation where an arbitrator refused to admit a surreptitious videotape as evidence. went to a nearby storage area. "Are you going to do a little dance for usl" The other employee asked. He streaked in front of his two coworkers. which prov ided that if the policy was breached the penalties included dismissal. Go to the website for the Ontario Public Service Union (www.Chapter 9 Administration of the Collective Agreement employer posted a job for a hospital porter and evaluated the candidates on the basis of an interview. On the day in questi on Gordon was working in the kitchen with two female co-workers. The results were scored." 11. Music was playing on a radio. T he second and third candidates were within 5 percent and 10." Find an arbitration case dealing with discharge and the penalty imposed by the employer by entering the term " discharge" in the search engine. and past performance. if any. Gordon apolog ized to his co-workers after management spoke to him. When management questioned Gordon. including the reasons for your decision. The employer investigated the incident and found that Gordon had no explanation for his behaviour other than he was joking with his co-worke rs. Explain what your decision would be. The employer had a code of conduct and pol icy on workplace harassment in place. removed all his clothing and went back to the kitchen. and had been assigned to grou nels duties approximately 40 percent of the time. There were two applicants for the job. Valid driver's l icence and safe driving record. cutting and trimming grass. The company made precast concrete beams and other products. and tools. and playing no-contact ice hockey. how would you proceed/ Bentley School Board A collective agreement contained an article that prov ided as follows: In making pro mot ions. Franks and Martin . present qualified employees shall be given preference. . tools. The supervisor became more concerned w hen another employee to ld her that Ross had been talking about playing hockey. Questions 1. Subsequently. Possession of or willingness to obtain pesticide applicator ticket w ithin a specified time. Knowledge of and ability to perform mino r repairs and maintenance on grounds-related small machinery.. The em ploye r decided to place Ross under video surveillance to determine if his injuries were as severe as he clai med. The foreman described the work done by grounds labourers as "simple. Martin was awarded the job. Ability to perform repetitive manual tasks for an extended period. etc. Ross's chiropractor indicated that he should recover w ithin two weeks if he complied w ith limitations on his activities: standing less than 15 minutes. and cleaning grounds. sweeping. the required knowledge. The employer posted a job vacancy for a labourer as follows: Performs a variety of unskilled and semi-skilled grounds maintenance tasks. and had fil led in when the gardener was absent. raki ng. remov ing snow. . Training in practical ho rticulture is an asset. O n w hat basis can Franks f ile a grievance/ 2. lifting a barbecue off the back of a truck. as directed. to lift heavy objects. Ross was dismissed on the basis that he had been misrepresenting his capabilities. The employer accommodated Ross by assigning him to light duties.. levelling. loading. and w here two or mo re applicants are capable of filling the position appl ied for. and assisting the gardener. Ross was videotaped outside of the workplace and the video showed him wa lking and bending over to pick up an object. materials. Marti n had five years of seniori ty. shovelling." It was estimated that each of the tasks involved in the job could be mastered w ithin a day or less of work. 2. seniority shall be the determining factor. Safe work practices. Ross injured his elbow at work. and skills for the position as outlined w ithin the appropri ate class specification shall be the prim ary consideration. had worked as a labourer. Knowledge of WHMIS. no lifting. Questions 1. had worked as an assistant to the gardener. If you were the arbitrator. and transfers. The union filed a grievance and at the arbitration hearing the employer attempted to introduce the videotapes as evidence. to work in all weather conditions. including raking. Ross' superv isor became suspicious about the extent of his back injury. The company accommodated Ross's injury. If Franks and the union file grievances. loading/unloading equipment. W hat argument w ill the union make regarding the videotapes/ Explain fully. Operates and maintains manual and power-operated equipment. Franks had 10 years of seniority. and equipment. Martin had also taken courses in horticulture and completed training in pesticide use. . pesticides. Ross' back problems conti nued and he made repeated trips to hi s chiropracto r. what outcome do you expect at an arbitration hearing/ Explain. dirty. In all th e instances. Performs other related duties as assigned.. demotions. Ross injured his back at work . O n w hat basis can the union file a gri evance/ 3.. and was advised by his chiropracto r that he should recover in two weeks if he was assigned light duties. The contract also provided that an employee w ho moved to a new position would have a trial period of three months to determine his or her suitabili ty.Chapter 9 Administration of the Collective Agreement 273 Decorative Concrete Products Ross worked as a general labourer for Decorative Concrete Products. and no ladder climbing. moving. Qualifications: Several years grounds-related experience. Applies fertil izers. ability. even though Ross continued to have problems w ith his elbow and required light duties for five months. The collective agreement between the union representing the city workers and the employer provided that an employee would be termin ated if he or she was absent for three consecutive working days without reasonable explanation. W hat arguments w i ll the employer and the union make at the arbitration hearing/ 2. The employer moved uni formed officers req uirin g accommodati on t o desk jobs or special projects and adopted a pol i cy of holding two dispatcher jobs in the communications branch open for the transfer of uniformed officers w ith di sabi li ties. If the grievance is upheld. Tim worked in a municipal arena. Relying o n the prov isions of the agreement. an argument led to the pol ice being called to the home. W ithin an hour of being jailed. including d ispatchers. Tim d id not contact hi s employer w hile he was jailed. w hat difficulties would there be for the union and the employer/ . His release from jail was cond itio nal upon him not contacting his girlfriend w ho was involved in the incident and refraining from the consumptio n of alcohol. he went to her residence and fixed the problem. 2. explain w hat your decision would be. 3.Chapter 9 Administration of the Collective Agreement Macintosh Lake Police Association The Macintos h Lake Police Associatio n is t he coll ective bargaining agent for the employees of the Macintosh Lake Police Services Board. Tim called his superv isor to adv ise that he would not be able to attend work. severance pay." and he would not be entitled to any notice of termination. Th e civ ilian agreement covers jobs in the force's communi cations branch. If you were the arbitrator. Explain the basis for any union grievance in this situation. however. and he did so. The association has two collective agreements w ith the Board. The d ispatchin g jobs are viewed by employees as being the most desirable pos it io n in the communicati o ns b ranch. one covering uniformed office rs and the other cove ring civ ili an emp loyees. and failure to do so would be cons idered culpable conduct • Tim was required to prov ide confirmation of attendance at meetings of Alcoho lics A nonymous In june of 2010 w hen Tim's girlfriend called him about water in the basement of her ho me. he was not released from jail until four days after the incident took place. In january 2010. however. after Tim had some beer. Th e civ i l ian co llective ag reement prov id es that i n the event of a job vacancy. Subsequently. The employer informed Tim that he was going to be terminated pursuant to the collective agreement. and provided that he could be term inated pursuant to the collective agreement. his employment would continue prov ided th at if he engaged in any cu lpable conduct w ithin 24 months the employer would have just cause to terminate his employ ment. If the grievance regard ing the employer's policy goes to an arbitrato r. Subsequently. Tim's girlfri end asked him to stay for a barbecue. Questions 1. the job is to be posted and the appli cant w ith the most seniority w ith the required qualificatio ns is awarded the position. The po licy did not invo lve the d isplacement of any civ ilian employees. The agreement further prov ided that: • An arbitrator would not have jurisdiction to substitute a penalty other than termination in the event that Tim breached the agreement • If Tim was terminated because he failed to satisfy attendance requirements. Tim was arrested and taken to jail after the pol ice found him hiding under a deck. after several meeti ngs between the unio n and the employer. Russell Creek Larry Tim was hired as a custodian by the city of Russell Creek in 1988. The unio n notified the employer that it objected to this pol icy and has requ ested that it be changed. he was involved in an incident of domesti c vio lence and was jailed for seven days. and the union filed a grievance challenging the termination. Questions 1. In 2010. or any payments pursuant to employment standards legislation • Tim was req uired to contact the employer in the case of any absence. explain the outcome that you expect. the parties entered into an agreement that confirmed that Tim had been absent for more than three days. such conduct would constitute "just cause" and "wilful misconduct. the employer terminated Tim. The Board fou nd th at it had an increasing number of uniform ed officers w ho needed accom mo dati o n because of injury. . an area where we should be modest about our ability to predict behaviour and consequences. Identify the functions of strikes and lockouts 110. Describe the significance of strikes 98. 113 2 . 118 4. 1 . Daphne Gottlieb Taras 1 . Explain methods to resolve contrad disputes 29.Morley Gunderson. . 110. This uncertainty refleas the variety of ittstitutiottal. 103. 118 3. 118 5 . 113. 113. 1 OS. Outline the prerequisites for a strike or lockout 29. 104. economic. and process factors that impinge on the parties. Allen Ponak. Identify factors affecting strike activity 119.Strikes remain somewhat of a mystery. 117. 113 . 117. . The agreement ending the fiveday strike provided that the parties would continue negotiations and refer any matters that could not be agreed upon to interest arbitration. As the strike continued.ca/en/gateways/topi c!.involve a neutral third party attempting to help negotiate an agreement. The company's Sudbury site is the largest nickel smelting operation in the world. The company claimed it was losing $7 million a day in production because strikers were hindering access to its plants. the pa rties ca n req uest assistance.conciliation and mediation. g c. Strikes. T he most important of these policy issues is whether some form of third-party assistance is required before a strike or lockout is allowed. In O ntario. Contract negotiations stalled when the company proposed reductions in a bonus tied to the price of nickel and an exemption of new employees from the defined-benefit pension plan.1 at the end of this chapter summarizes the third. On November 30 back-to-work legislation was introduced in the House of Commons. Human Resources Development Canada: www .party assistance. the legislation requires a request to t he Minister by one of the part ies.hrsdc. various forms of Website for federal mediation and conciliatio n services: www. identified in Chapter 5. 2009 after employees rejected a company offer by a vote of 85 percent. nuisance.h rsdc . shtml assistance are available.lmxm-gxr. In March 2010. there was violence and delays on the picket line in Sudbury. and interference in econo mic a nd contractual relationships. CONTRACT DISPUTE RESOLUTION If the parties cannot agree on the terms of a collect ive agreement. There were allegations that the company was deliberately provoking picketers by hauling ore across picket lines with trucks instead of transporting the ore using trains. and a strike began the next day. a nd Voisey's Bay. The company partially restarted operations using office employees Website providing information regarding th ird-party assistance in the private sector. We w ill consider these policy issues. before the leg islation was passed. and Lockouts Brazil-based Companhia Vale do Rio Doce purchased Inco Ltd. In most jurisdictions. employing 3000 people. the stri ke was approaching a year in duration. employees rejected a company offer by a vote of 90 percent.PDF to do production and maintena nce work. Subsequently. Newfoundland. . after the strike was eight months old. including the causes of strikes.Chapter 10 Contract Dispute Resolution. 2009. T his is referred to as third-party assistance because it involves an outside party conferring with the union and the employer. In all jurisdictions o the r th a n Onta rio. 2009. for $19 billion in October 2006. the company started a $25 million legal action against the union and 19 strikers claiming damages for intimidation. or the Minister can init iate t he process without a request . A strike started at the Sudbury and Port Colborne locations on july 13. In this chapter. Appendix 10. On November 27. and the extent of their use. this assistance is available from the ministry responsible for labour issues. the company and the union announced they had reached an agreement to end the strike.gc . N o two jurisdictions provide for the same procedure. issues relating to strikes. Some of the key policy issues in volved are listed in Key Considerations 10-1 Contract D ispu te Resolution Policy Issues. Production employees are represented by the United Steelworkers un ion.ca/en/lp/ spi fa/ell if i rlc/ i nt(e). and the legal requirements for a strike or lockout. contract negotiations between the union representing locomotive engineers and Canadia n National Railway broke down. we will consider the assistance that is made available to the parties so that they can avoid a strike or lockout. T he most common forms of assistance. On December 2. Some observers claimed that the company had little incentive to settle because of the low price of nickel. T here are significant differences between jurisdictions regarding the form and significance of assistance to the parties. Vale lnco operates mines in Sudbury and Port Col borne Ontario. the possible advantages and disadvantages of different forms of third. In june 2010.party assistance available in each jurisdiction. The collective agree ment between the company and the union expired in 2009. In Saskatchewan. and a no-board report after the conciliation officer completes his or her work is the standard procedure. A cooling-off p eriod is the time the parties must wait after conciliation before they can strike or lockout. endeavour to help them reach an agreement. or a two-stage process involving a conciliation officer and then a conciliation board if no settlement is reached with the conciliation officer. In the normal course of events. legislation provides for a conciliation process. In most jurisdictions. the Minister may appoint a conciliation officer when either or both of the parties make a request to the ministry responsible for labour issues or the Minister may appoint a conciliation officer on his or her own initiative. What is the role of the assistance provider/ 3. they do not have any authority over the parties and do not make recommendations regarding the terms of the dispute. there is an additional waiting period that must run before the parties can strike or lockout in all jurisdictions that provide for conciliation except Saskatchewan. Conciliation officers are ministry employees who confer with the parties. however. It could help the parties reach an agreement because the third party may bring a new perspective to the negotiations. there is no empirical evidence that it reduces the overall incidence of strikes. there is a provision in most jurisdictions that the parties can agree that the recommendations will be binding.Minister. However. the board's recommendations are not binding. an employer nominee. In some jurisdictions. Strikes. including Ontario. . A conciliation board is a threeperson panel that hears the parties and makes recommendations for a settlement. the legislation provides for the appointment of a conciliation board instead of an officer. There is either a one-stage conciliation process involving either a conciliation officer or a conciliation board.Minister regarding a settlement. How long must the parti es wait after conciliation or mediation before a strike or lockout/ TYPES OF THIRD-PARTY ASSISTAN CE Conciliation In all jurisdictions except British Columbia and Alberta. T he conciliation process is viewed as having advantages and disadvantages. Conciliation officers function as facilitators.Chapter 10 Contract Dispute Resolut ion. In those jurisdictions where the Minister decides whether or not to appoint a conciliation board. A conciliation board consists of a union nominee. In situations where a strike or lockout is going to be Co neil iat ion officers are minis try representatives w ho attempt to assist the parti es to reach an agreement. After a conciliation officer or a conciliation board reports to the !vlinister. and it ranges from 7 to 21 days depending on the jurisdiction. The conciliation board hears evidence from both sides and makes recommendations to the . A n o-board report confirms that a conciliation board w ill not be appointed and begins the countdown to a strike or lockout. the notification that a conciliation board will not be appointed may be known as a no-board report. T he !vlinister may make the conciliation board's report public. and report to the . Is third-parry ass istance required before a strike or lockout/ 4. and the cooling-off period may allow the parties to reconsider their positions. and Lockouts 277 Considerations 1 0-1 ' ~ Contract Dispute Resolution Policy Issues 1. and a neutral chairperson who is selected by the parties' nominees. the optional conciliation board is not being used. T his is known as a cooling~££ period. What form(s) of third-parry assistance are made ava ilable/ 2. . where one party can accept a mediator's recommendations and require a vote by the other side. A conciliation board has the same potential advantages as a conciliation officer. Some unions have claimed that the process favours the employer because it provides management with time to prepare for a strike. In addition. leading to a settlement. adopted in some of the jurisdictions that provide for conciliation. is to allow a mediator to replace a conciliation officer or a conciliation board. T his is the policy in British Columbia. They may suggest compromise terms or even privately voice an opinion to one of the parties on their position. Figure 10-1 summarizes these requirements. conciliation or mediation and a cooling-off period is required before the parties can strike or lockout. One alternative is to have the mediator function similar to a conciliation officer. conciliation may only delay the process. and Lockouts necessar y to force the parties to reconsider their positions. when the board's report is made public. H owever. it may lead to public pressure to moderate demands. the legislation allows for the appointment of a mediator instead of. A fourth alternative is simply to allow for the .Minister to appoint a mediator to assist the parties at any time. The report may contain non-binding recommendations and is usually made public. T he extent to which conciliation board reports actually have this effect is difficult to determine. The mediator may be able to repackage proposals or come up with new compromises the parties have not previously considered. Media tion Mediators attempt to assist the palties to reach an agreement. In most jurisdictions. Arbitration Arbitration involves a third party hearing the palties and then decid ing the terms of the agreement.Cha pter LO Contract Dispute Resolution. the conciliation process. the legislation provides that the mediator has the same powers and authority as a conciliation board. the mediator can encourage them to focus on the issues and separate them if necessary. In some jurisdictions. it is possible that the parties could bring in a private mediator to help them reach agreement. There are numerous policies relating to the role of mediators across Canadian jurisdictions and the main alternatives will be considered here. their role and autho rity vary across jurisdictions. Where the parties are hostile. Mediators may play an active role in negotiations. Mediators attempt to assist the parties to reach an agreement. the legislation refers to mediation instead of conciliation. Arbitration is a completely different form of third-party assistance. Fact-finding Fact -finding is a process fou nd in some private and public sector labour relations statutes. Fact-finding is a process found in private sector legislation in British Columbia and some public sector labour relations statutes. This is a disadvantage where a work stoppage is necessary to force one or both of the parties to re-evaluate their positions. This is the policy in Alberta. the mediator may make proposals allowing negotiators to back away from a previous position without losing face. Strikes. The arbitration of a contract dispute is referred to as interest arbitration. because the arbitrator makes a final and binding decision establishing the terms of the collective agreement after hearing the parties. A third alternative. Most importantly. In addition to these policy alternatives provided in the legislation. In all other jurisdictions. or in addition to. Another alternative is to allow the mediator to become much more involved in a contract dispute and possibly make recommendations. In Alberta and British Columbia. He or she may help each side understand the other's position. there is a provision that either party may request or the .Minister may direct the mediation officer to provide a report that may include recommended terms of settlement. A fact-finder is an individual who investigates the issues and reports to the Minister. There are a nwnber of ways that a mediator might help resolve a dispute. Conciliation boards will even further delay a strike or lockout. o r special med iator. o r notifi ed the parties of the rece ipt of the report of a concil iatio n officer. After a conc ili ation officer's report to the M inster: 1) 14 days after the M inister notifies that a concil iation board w ill not be establ ished. Manitoba Not required. o r a conc iliation board or special med iator has been appointed. ii a med iation officer has been appointed. If a conc iliation officer o r med iator is appointed. . 14 days after the date on w hi ch the parties are notifi ed of the results. and Lockouts fiGURE 1 0-1 279 Third-Party Assistance before a Strike or lockout Conciliation or Mediation Requirements and Cooling Off Period Before a Strike or Lockout Canada Conciliation may be req uired. If the mediato r makes recommendations to the parties: 14 days after the recommendations are rejected by the parties. o r released the report of a conc iliatio n commissioner or conc iliatio n board to the parties. Strikes. or w here there is a vote on the recommendations of the mediator. conc ili ation board. The time peri od ior the M inister to respond is extended if a concil iation officer was appointed. British Columbia No t required. or 2) W hen the M inister establ ishes a conciliation board. Newfoundland and Labrador Cenci liatio n may be required. seven clays after the minister has received the board report. A party has requested a conci Iiation board . However. if a dispute has been referred to the Board. After a conc ili ati on officer's report to the M inister: 1) if the M inister does not appoint a conc iliation board or med iator -14 days after the conciliation officer's report is received 2) if the Minister appoints a conc iliation board or med iator-7 clays after the Minister receives a report Saskatchewan Not required. 14 clays after a report is submitted to the M inister. and 1) The M ini ster has notified the party that a board w ill not be appointed. New Brunswick Conciliation or med iatio n may be req uired. or 2) if the mini ster appoints a mediator instead of a concil iation officer. Nova Scotia Cenci Iiation or mecl iatio n is required. there cannot be a strike or lockout while the matter is pending before the Board. If the med iato r notifies the parties that he or she does not intend to make recommendations. o r 15 days have passed after the request to the M inister was made. med iato r o r conc iliati on board w ill not be appo inted.Chapter 10 Contract Dispute Resolution. A party has requested the appointment of a conci liatio n officer. o r releases the report of a conc iliation board to the parties. 7 clays after the med iator's report is released to the parties. A lberta Mediation is required. seven days after the M inister receives the boa rd's report. If a conc ili ation board is established. However. 21 clays have elapsed from the clay on w hic h the M inister either: notified the parties that there w ill be no concil iatio n. 48 hours after the notification that the med iato r's report has been rece ived. Prince Edward Island Cenci liatio n or med iatio n is required. and 7 days have elapsed from the day o n whi ch the M inister either: notifi ed the parties that a conc iliatio n officer. O ntario Cenci Iiatio n or mecl iation is required. 14 days after the notifi cation. o r 2) if a conci liation board is established seven days after the report is released to the parties. benefits. It has also been suggested that arbitration may have a narcotic effect. In the private sector. Chapter 10 Contract Dispute Resolution. However. the issue could be referred to rights arbitration.280 Th e chilling effect refers to parties' unw illingness to make concessions during negotiation. It has been argued that arbitration may have a chilling effect on negotiation. a party may decide it would end up better off if it made no concessions before arbitration. An alternative form of arbitration may avoid the problems final o ffer sel ection is a type of arbitration in which the arbitrator chooses bel\veen the union's and employer's offers. In item -by. FCA can be used to resolve an impasse in the first negotiation between the parties. the arbitrator chooses between the union and the employer proposals for each item in dispute separately. suppose the union is demanding a 4 percent increase and the employer is offering a 1 percent increase. T he major advantage of final offer selection is that it should encourage the parties to reach their own agreement. For example. Final offer selection is a form of arbitration in which both the union and the employer submit their final offer to the arbitrator. as . The process creates winners and losers. Conventional interest arbitration has been criticized for several reasons. Final Offer Selection. Interest arbitration is used primarily in the public sector where it is provided as an alternative to a strike or lockout for some employees. there are potential disadvantages associated with final offer selection. There are two forms of final offer selection: total package and item-by-item. T here may be less risk of creating hostility where item-by-item selection is used because both parties may see parts of their offer incorporated into the agreement. The terms provided in the offer chosen are incorporated into the collective agreement. and vacations. H owever.item final o ffer sel ect io n. That is. In to tal p ack age final offer sel ec tio n. the arbitrato r selects all of the union's or the eml>loyer's offer. Assuming that an arbitrator would order a wage increase somewhere between the parties' positions. Both sides will present evidence attempting to convince the arbitrator to make an award favourable to it. the arbitrator chooses bel\veen the union and the employer offers separately for each contract issue. Negotiators may become dependent on an arbitrator making a decision for them instead of making the tough decisions required to reach an agreement. The arbitrator is a neutral third party who hears evidence from both parties regarding the possible contents of the collective agreement. Considering the issue of wages. Establishing arbitration as the final dispute resolution mechanism may hinder the parties negotiating a collective agreement on their own. In item-by-item final offer selection. if an individual was dismissed. it is seldom used 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. and Lockouts Interest arbitration should not be confused with grievance or rights arbitration. 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 of an arbitrator. The arbitrator might accept the union's proposal on the issue of wages and the employer's proposal on the issue of vacations. because both parties face the substantial risk that the arbitrator might choose the offer made by the other side. In total package final offer selection. First Contract Arbitration. T his is especially true when total package final offer selection is used. The arbitrator then must choose the entirety of either the union's or the employer's proposal. and this may cause hostility that affects the administration of the agreement and subsequent negotiations. associated with traditional or conventional arbitration. In Chapter 8 first contract arbitration (FCA) was referred to as a policy alternative that has been adopted in most jurisdictions. H owever. Strikes. A n ar cotic effect refers to the parties losing the capability to negotiate their own agreement. each side presents an offer that covers all of the outstanding issues between the parties such as wages. who chooses one of the offers. a grievance might be filed. and if the grievance is not settled. interest arbitration could be used if the parties agreed to do so. the parties may be discouraged from making concessions that might lead to agreement. including references ro comparable collective agreements. which relates to a dispute relating to the administration of the collective agreement. there are some restrictions on the availability of FCA. Tllis is a significant policy development. it has been used to end postal and teacher strikes. Back-to-Work Legisla tion Back-to-work legislation refers to a special statute passed to end a strike or lockout. Back-to-work legislation has been used in the public sector in cases where employees have the right to strike. If a settlement is not reached. the arbitrator will have accumulated a large amount of knowledge about the issues.Chapter 10 Contract Dispute Resolution.to help them reach their own agreement. After FCA was introduced by one jurisdict ion. 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. a contract dispute could be resolved by a final offer vote in some jurisdictions and by back-to-work legislation in all jurisdictions. sometimes referred to as med-arb. any strike or lockout must be terminated and the terms of an agreement are settled by an arbitrator that the parties agree upon or by the Board. but it is deemed that the continuation of a strike will impose excessive hardship on the public. for example. it was noted that in some jurisdictions the employer may request a final offer vote or the . An advantage of med-arb is that if the mediation attempt is not successful. Strikes.tvlinister may direct a vote. and usually provides for the terms of a new agreement to be determined by arbitration. and Lockouts 281 previously outlined. and its widespread adoption appears to be unlikely. which has been adopted in Manitoba. it appears to be a departure from previous policy. In mediation-arbitration. Second or subsequent contract arbitration could also be adopted by other jurisdictions in the future. a nd if no agreement is reached they act as an arbitrator and settles the d ispute . the parties can get to the arbitration process faster. Med-arb has not been extensively used. Back-to-work legislat ion e nds a strike or lockout and usually imposes arbitra tion. T he 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. Final Offer Vote In Chapter 8. if the dispute proceeds to arbitration. and it will not be ordered in all situations when there is a bargaining impasse. Second or Subsequent Contract Arbitration. Another policy option. OTHER DISPUTE RESOLUTION METHODS In addition to the various forms of third-party assistance. the same person then acts as an arbitrator and decides the terms of the agreement. The individual assisting the parties first tries. the th ird party first acts as a mediator. Mediation-arbitration Mediation-arbitration is a two-step process. In some cases. the legislation sets out the terms of work instead of providing for arbitration. Also. These votes should be viewed as an alternative way to resolve a contract dispute.as a mediator. It orders the strike or lockout to end. 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. However. it was subsequently adopted by eight other jurisdictions. . There is also a concern that the person assisting the parties may obtain information in the mediation process that may improperly influence Ius or her decision as an arbitrator. is to make arbitration available in second and subsequent contract negotiations on the application of one of the parties. and industrial conflict. For example.4 percent of agreements in the private sector were ended by back-to-work legislation. According to this definition. Strikes. In some cases. and not engaging in any activity the collective agreement does not require. Alberta. a strike is not limited to a situation where employees walk off the job. T his is referred to as a work-to-rule campaign. and Lockouts USE OF THIRD-PARTY ASSISTANCE AND BACK-TO-WORK LEGISLATION In 1980. in concert or in accordance with a conunon w1derstanding. When unions held a national day of protest in the 1970s against anti-inflation guidelines. while at other locations they continue to work. 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. in which employees strike at some locations. The purpose appears to be to force concessions without completely shutting down the employer. The numbers in the public sector were affected by social contract legislation in the 1990s. The legal definition of a strike is broader than what may be expected. unions have used the slowdown tactic of following work procedures exactly. Most jurisdictions provide a definition similar to the following from the Canada Labour Code: [S]trike includes a cessation of work or a refusal to work or to continue to work by employees. Accordingly. a significant number of agreements in the public sector are settled after back-to-work legislation.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. T his difference in definition could mean that the same union action is considered a strike in one province and not in another. 17 percent of agreements in the public sector and 0. in the postal system the union could have employees strike in different cities on different days. and in some situations it could be regarded as a strike action because it is restricting output. In three jurisdictions--Manitoba. . 2 A work-to-rul e campaign is a work slowdown carried out by strictly adhering to work rules and the collective agreement. Where employees work at different locations. but the Board in at least one other province did not find this action to be a strike. Some would argue that this is a sign collective bargaining in the public sector is flawed . STRIKES AND LOCK OUTS STRIKES AND LOCKO UTS DEFINED Strikes and lockouts are referred to by various names such as economic sanctions. which provided for the reopening of public sector collective agreements and forced settlement if the parties could not renegotiate the contract. Possible reform of bargaining in the public sector is discussed in the next chapter. unions have sometimes used the tactic of a rotating strike. Even if the social contract legislation is viewed as an anomaly. a refusal to work for some other purpose would not be a strike.282 Chapter 10 Contract Dispute Resolution. In response to a rotating strike the employer might initiate a lockout. It has been held that employees who refuse overtime in collaboration with each other are engaging in a strike. in combination.98. Ro ta ting strikes occur when employees at different locations alternately stop working. industrial action. and without employees losing all of their income. and Nova Scotia. it also includes situations where employees continue to work but restrict output. this was found to be a strike in Ontario. Strikes may cause employers to lose business. 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. there has not been a lockout. Most strikes are peaceful and do not involve attempts by employers to use replacemenr workers. A strike during the term of the collective agreement is illegal. Strikes. There are still reasons why strikes are significant and could be a cause for concern. especially where the employees involved represent a significant portion of the workforce. A wildc<:~t strike is an illegal strike that has not been authorized by the union. Before examining the significance of strikes. . H owever. not the rule. and government action to curtail some strikes. and. 96 percent of collective agreements were concluded without a strike." It is important to note that there are two components to the definition of lockout.Chapter 10 Contract Dispute Resolution. 87 percent of collective agreements in the private sector were negotiated without resorting to a strike. In the period from 1980 to 1998.for example. hence. however. in Canadian labour relations. on its economy. in the long run. Some strikes cause inconvenience to the public. Strikes are the exception. Nine replacement workers were killed in a bombing incident at a mine in Yellowknife in 1992. a suspension of work by an employer or a refusal by an employer to conrinue to employ a number of their employees." 4 Labour Relations Issue 10-1 refers to one specific labour dispute. a lockout is the employer's refusal to allow employees to work in order to force the union to agree to certain terms of employment. and its effects. if a group of employees walked off the job to protest the discipline or dismissal of a co-worker. Strikes might have a significanr impact on the income of employees and in some cases lead to the loss of jobs. it should be noted that some perceptions about them may be incorrect. Some have led to violence and property damage. it should be noted that many public sector employees do not have the right to strike. and secondly there is a requirement that the purpose of the refusal to employ is to compel employees ro agree to terms or conditions of employment. If the employer suspends operations for economic reasons and there is no intent to force employees to agree to terms and conditions of employment. strike activities in Canada have an insignificanr effect on its trade balance. Periodically news reports contain references to exceptionally long strikes or clashes between pickets and police.. TI1e second requirement refers ro the subjective motivation of the employer. As is explained in Chapter 7. one study which considered the macroeconomic effects of strikes found that " . 283 A w ildca t strike is a n illegal strike that has not been a uthorized by the union. a strike is only legal at certain times and if the prerequisites for a strike including a strike vote have been mer. a reference to unions or labour relations leads to nega tive thoughts about strikes. Transit strikes in large cities have caused traffic gridlock. 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 college professor on strike in Ontario was struck by a car and killed when he was on the picket line in 2006. SIGNIFICANCE OF STRIKES For many people.. First there must be a suspension of work or a refusal to employ. Other businesses and charities in a community might be affected. and a few have led to a business being permanently closed. A strike might have a significant economic impact on a community. and Lockouts As explained below. the NHL lockout in 200~5. TI1e possibility of the public being harmed by strikes has led to restrictions on strikes in the public sector. It is an unfair labour practice to threaten an illegal strike.3 In the public sector. In most jurisdictions. It has also been suggested that strikes adversely affect the competitive position of the Canadian economy. Differences in information be tween unio n and employer 2. conflict emerges in a different form. Every contract negotiation is unique. and Lockouts What Are the Effects of Strikes and Lockouts? The lockout of NHL players and the cancel lation of the 2004-05 hockey season illustrate some of the potential impacts of a work stoppage. Bargaining histo ry 8. Legislative environment 9. A strike might also play a part in intraorganizational bargaining.284 Chapter 10 Contract Dispute Resolution. by bringing the expectations of bargaining unit members into line w ith what the bargaining team can achieve. The players lost $1. FACTORS A FFE CTING STRIKES T here is a large body of research examining the factors affecting rhe incidence and du ration of strikes. and unique economic factors. The lockout led to changes in the collective agreement. FUNCTIONS O F STRIKES Strikes serve several legitimate purposes in the labour relations system.1 billion in salary. T here is evidence that where strikes are not allowed. Prior to the salary cap. The relationship between the unio n and the employer 6. but the salary cap will prevent this from happeni ng and wil l require teams to manage their resources more efficiently. Negotiators' skill and experience 7. The NHL was the first profess ional league in North Ame rica to lose an entire season because of a strike or lockout. Although it may sound strange. Hockey Night in Canada. a free-spending team like the Toronto Maple Leafs could possibly buy a championship if it chose to. such as grievances. including a salary cap that imposes a maximum for individual players and a limit on the total amount paid to the team. Bargaining unit c haracteristics 4. Strikes. Inte rnal conflicts with in the union or employer 5. After a strike starts. the union and the employer will be forced to re-evaluate their positions. a unique bargaining lustory. The CBC lost $20 million in revenue when one of its programs. because it involves different employees and employers. strikes can be a way to resolve conflict. T lus section will review some of the variables that have been considered. was suspended. and the owne rs lost even more in revenue. 5 T he possibility of a strike may cause negotiators to make concessions that are required to reach an agreement. Economi c environment 3. Figure 10-2 lists factors that have been linked to strikes. it was found that the grievance rate for employees who were not allowed to strike was significantly higher than the rate for employees who could strike. Thousands of arena and league staff lost income when they were laid off. FIGURE 10-2 Factors Affecting Strikes 1. In one study. Worke r disconte nt . strike activity increases in periods of higher employment and decreases as unemployment rises. A strike during an agreement is likely caused by a non-economic dispute. which the union does not have. they may underestimate the union's commitment to issues. A possible explanation for this is that as the business cycle reaches its peak and unemployment is loweJ. seniority. which increases the likelihood of a strike. In some cases. Strikes. on the renewal of an agreement.Chapter 10 Contract Dispute Resolut ion. management representatives may lack the authority required to reach an agreement. Strike activity is lower in bargaining units that have experienced higher increases in their real wage during the previous contract. Barga ining Unit a nd Community Characteristics Some researchers have considered employee and communiry characteristics as factors affecting strikes. a dispute may relate to a non-monetary issue such as the establishment of seniority for the first time or compulsory union membership. such as a safety issue. T hese differences may mean that the union cannot agree on demands or concessions that are necessary to reach an agreement. they do occur. workers are more willing to strike because it is easier to find an alternative job. In larger bargaining units. Where the real decision makers are not involved in the negotiations. the parties may lack the objectivity required to reach agreement. there may be more alienation towards the employer. In some first contract situations. The employer will have access to information. Economic Factors Generally. age. Economic factors are more significant for contract renewal strikes. T his leads to the union and the employer having different expectations. there will be various interests and differences along the lines of gender. Negotia tor's Skills a nd Experience The negotiation skills and experience of the negotiating teams can affect the likelihood of a strike. there might be divisions within the management team that contribute to an impasse in negotiations. Rela tionship between the Union and the Employer The relationship between union and employer negotiators may be a factor affecting strike activity. Similarly. and Lockouts Informa tion Differences 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. Strikes might occur when the parties negotiate their first collective agreement. the employer may see tough times ahead and think that granting wage increases is not prudent. T he union may be forced to strike in some cases to get the real decision makers involved. or during the term of the agreement. Inexperienced negotiators are more likely to make errors such as 285 . such as sales and revenue forecasts. The union may think the future looks bright and the employer has the ability to provide a wage increase. and other factors. 6 A distinction can be drawn between different types of strikes on the basis of when the strike occurs. Generally it has been found that male-dominated bargaining units and larger bargaining units are more likely to be involved in strikes? It has been suggested that gender is a factor because female employees are more likely to quit to express dissatisfaction than to strike. Where there is hostility. 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. Although wildcat strikes during the term of an agreement are illegal. This is the basis for discontent. or pick up on the cues from the other side about settlement possibilities. and acted rationally. and replacement worker legislation. H owever. It has been found that while legislation requiring conciliation is largely ineffective in reducing the incidence of strikes. thus making a strike less likely. Strikes were found to be less likely to occur when negotiators had more experience. . Strikes. 10 This particular finding is interesting. it has been argued that a previous strike may have imposed costs that the parties will want ro avoid. mandatory strike votes have reduced the incidence of strikes. In some jurisdictions. If a previous strike was brief and did not cause employees to lose a large amount of income.U This approach notes that because strikes involve costs and uncertainties. not just by appealing to their economic self-interest. and will more likely be expressed by a strike when alternatives are not available. and Lockouts committing themselves ro a position they cannot withdraw from without a loss of reputation. Less experienced negotiators may not send out proper signals regarding where they would be willing to settle. workers must be convinced to strike on the basis of fairness and legitimacy. It has been suggested that a "collective voice" approach.9 The allocation of authority in labour relations matters to the provinces has led to differences in policy on issues such as the requirement for conciliation or mediation. Some jurisdictions have legislation that prohibits the use of replacement workers. A possible explanation for this is that the reopening provision allows the parties to resolve any problems before discontent accumulates and leads to a strike. Alternatively. It is contended that the employment relationship involves a subordination of employees to management. avoided negotiation errors. 12 The nature of many of the factors affecting strikes has led some observers to view strikes as mistakes. Previous negotiations and strikes might have caused hostility that in turn leads to an impasse. Strikes are more likely to occur where union leaders are under pressure to be more militant because of employee discontent.8 Bargaining History T he previous bargaining between the parties might affect the likelihood of a strike.286 Chapter 10 Contract Dispute Resolution. Employee Discontent Worker discontent and frustration may be a factor that affects strike activity. Lega l Environment T he legal environment might affect the frequency and duration of strikes. strikes are an expression of fundamental worker discontent and cannot be viewed as mistakes. Research has found that workplaces with more autonomy and progressive human resources management practices have lower strike levels. which views strikes as an expression of worker discontent. according to the collective voice approach. explains strike activity. which can be expressed in a number of ways. One study in the United States found that the experience of negotiators had an impact on the incidence of strikes. Inexperienced negotiators might also think that in order toestablish a reputation they must obtain more in negotiations and this leads to a bargauung tmpasse. It has been found that such re-opener provisions lead to a reduction in strikes.something that could be avoided if the parties had the same information. because unions have previously contended that a ban on the use of replacement workers would decrease the incidence of strikes. It has been found that legislation banning the use of replacement workers increases the incidence and duration of strikes. legislation allows for a contract to be reopened during the term of the agreement. The study also found that strikes were less likely to occur when the chief negotiators for each side had equal levels of experience. they may be more willing to support a strike. This leads to the question of whether employees not on strike. It is argued that if the union has more bargaining power. . <Applies to parts of the pub I ic sector. bargaining power plays an indirect role in the determination of whether they will occur. however. if strikes are viewed as a consequence of employee discontent.for FIGURE 10-3 Requirements for a Strike or lockout 1. Newfoundland and Labrador. who are covered by a different collective agreement. Alberta. not of strikes. which focuses on the parties' interests. Because there are so many variables. and fair treatment may help reduce discontent. Let us expand on these restrictions. These are listed in Figure 10-3. Strikes may be affected by numerous factors including negotiator experience. Noti ce of strike or lockouf> 6. Conciliation or mediati on process completed" 4 . and the likelihood of a strike is increased.tvlore centralized bargaining would mean that more experienced negotiators with more authority would be involved.Chapt er 10 Contract Dispute Resolution. If strikes are viewed as being an expression of worker discontent. it is difficult to deal with the question of how strike frequency and duration might be reduced. British Columbia. it will be necessary to take steps to reduce that discontent. bAppli es to federal jurisdiction. and O ntario. might also be beneficial in some situations. Strikes. It has been suggested that having employers adopt more progressive employment practices and enacting legislation that ensures satisfactory compensation. and Saskatchewan." 13 Alternatively. can refuse to cross the picket line of employees in other bargaining units. union negotiators will be under more pressure to be militant in bargaining. New Brunswick. Strike vote 5. If strikes are viewed as mistakes such as negotiation errors. Strikes should not be viewed simply as tests of economic strength. Nova Scotia. and Lockouts There is disagreement over the factors influencing strikes. It is apparent that the causes of strikes are complex. safe working conditions. the view that "differential bargaining power is a theory of wages. it will not necessarily affect the incidence of strikes. Hence. management has an incentive to increase its offer and avoid a strike. A lberta. Pri nee Edward Island. Nova Scotia. No collective agreement in force 2. The parties cmmot strike or lockout while a collective agreement is in force. A strike or lockout that does not meet therequirements is illegal. T he employees involved nught work for the same employer. Parties have bargained in good fa ith 3. and worker discontent. Essential services agreement in place' •Applies to federal jurisdiction. Mutual gains bargaining. 14 WHEN CAN THE PARTIES STRIKE OR LOCKOUT ? Several restrictions govern when a union ma y strike or an employer may lockout employees. Providing conciliation and mediation assistance may also help avoid strikes that are caused by nustakes. they might be avoided by improving the bargaining process. the legal environment. Some see union bargaining power as affecting the size of any wage increase. If discontent is high and union strike power is high. New Brunswick. 287 . the union's grievance was dismissed. and Lockouts 288 Hot cargo clauses allow employees to refuse to work w ith goods associated w ith an employer engaged in a labour dispute. some collective agreements have a provision that employees will not be required to cross a picket line. and will not prevent a Labour Relations Board from decla ring a strike illegal in most jurisdictions. Some unions have negotiated terms in collective agreements that give employees the right to refuse to work on. 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. The employer's pos ition was that the employees who refused to do the work were engaging in an illegal strike. employers can likely still pursue a remedy from the Board for an unlawful strike. To further complicate the matter. this type of clause has been found to be unenforceable. but they may not be able to discipline employees. handle. example. Such provisions are in conflict with legislation that prohibits a strike during the term of an agreement. or deal with goods coming from or going to an employer involved in a labour dispute. Labour Relations Issue 10-2 illustrates a situation in which an attempt was made to rely on a hot cargo clause. T he parties are not allowed to condone activity the legislation makes illegal. T he striking employees might work for another employer. In most jurisdictions. and employees must enter the second employer's place of business to make deliveries or provide services. Furthermore. and differences between jurisdictions. unfair employers or publications where lockouts or strikes recognized or authorized by the Printing. but there are exceptions.Chapter 10 Contract Dispute Resolution. Action taken by one employee cannot be a strike. Publishing and Med ia workers sector of the Commu nication Workers of America are in effect. a refusal to cross a picket line is an illegal strike. Accordingly. because a strike is defined as a collective refusal to work. If an individual refused to cross a picket line. The arbitration board that heard the matte r held that the refusal to do th e work assigned was a strike. Generally. Strikes. 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. H owever. Should a //Hot Cargo" Clause Be Enforceable? A collective agreement between a newspaper and the unio n representing its compos ing room employees provided as follows: "Article 16. /Should the parties be allowed to agree that e mployees a re allowed to refuse to do certai n work I 1 ~ ." The employer ass igned work to composing room employees that was normally done by employees belonging to the union who we re locked out at another newspaper. This decision illustrates that a provision in a contract relating to "hot cargo" may not be e nfo rceable. provisions like this may have significance if the employer disciplines employees who refuse to cross a picket line. because it is an attempt to contract out of the statutory prohibition against a strike or lockout during the term of the agreement. An arbitrator might refuse to uphold the discipline because of the contract provision allowing the refusal. because the parties are not allowed to con tract out of the legislation. the Board held that the article relied upon by the union was in conflict with the provisions of the Labour Relations Act providing that the re be no strike or lockout during the term of the agreement. where there is a provision in a collective agreement allowing employees to refuse to cross a picket line. In summary. The union filed a grievance allegi ng that the employer had violated Article 16 of the agreement. it would not constitute a strike. where production workers face a picket line set up by striking office workers. The union reserves the right to its members to refuse to execute all work received from or destined for struck offices. In the federal jurisdiction. a strike is prohibited. a special mechanism has been established to deal with labour disputes that may cause hardship. http :// www . both the employer and the Ministry of Labour must be given notice. AU jurisdictions require that a strike vote be held by secret ballot. a more restrictive provision because the union will have to obtain the support of a majority of employees. Some jurisdictions have a one-stage process involving a conciliation officer. and Alberta. there is a provision for the Labour Relations Board to order a longer strike notice where perishable property is involved. 15 In the six jurisdictions listed in Figure 10-4. the parties must have negotia ted and complied with the duty to bargain in good fait h. Other jurisdictions provide for a second stage involving a conciliation board. the parties must have completed a conciliation process before a strike or lockout is permitted. If this requirement is not met. In all jurisdictions. In Nova Scotia. British Columbia. 16 If a service is declared essential. a Labour Relations Board might order the parries to resume negotia t ions. the strike must be approved by a majority of employees in the bargaining unit. or an emergency is declared. In some jurisdictions. In si:x jurisdictions. In the event of a strike or lockout that causes special hardship. It has been found that mandatory strike votes reduce the incidence of strikes. legislation provides for the designation of essential services or an emergency in a strike or lockout.rhdcc-hrsdc .pdf.Chapt er 10 Contract Dispute Resolut io n. which ranges from 7 to 2 1 da ys . and Lockouts Before there can be a strike. In British Columbia. the union must give a strike notice ranging from 24 to 72 hours. as out lined in Chapter 8.gc . The details of the conciliation process are provided in the appendix to this chapter. In some jurisdictions. a strike must be approved by a majority of those who vote. instead of relying on special or ad hoc legislation. not just of those employees who actually vote. Reproduced w ith the permission of Her Majesty the Queen in Right of Canada 2010 . the process includes a cooling-off period after the conciliation officer or board has reported. Strikes. The parties cannot strike or lockout until after the cooling-off period. in others. FIGURE 10-4 Strike Notice Requirements jurisdiction Noti ce Required Canada 72 hours Alberta 72 hours British Columbi a 72 hours Manitoba None New Brunswick 24 hours Newfoundland None Nova Scoti a 48 hours O ntario None Prince Edward Island None Q uebec None Saskatchewan 48 hours Source: Human Resources and Skill Development Canada./eng/la bour/ labour_law/i nd_reljvotes .ca. In all jurisdictions except Nova Scotia. 289 . Restrictions on strikes and lockouts in the public sector will be discussed in the next chapter. the notice must be given to the employer. "General Private Sector Bargaining l egislation" . governments can pass special legislation ending the labour dispute. In most jurisdictions. we referred to legislation prohibiting the use of replacement workers during a strike in the federal jurisdiction. In all provinces except British Columbia. STRI KE ACTI V IT Y AND THE EN D O F A STRI KE Strike pay is mo ney paid by the union to emp loyees on strike . Some employees on strike may find other jobs. the employer or union may pursue remedies through the grievance and arbitration process. the employer should call it to the attention of union officials immediately. some picket lines are apparently set up and operated to block entry. 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. the union will acconunodate them by assigning them to alternative duties such as clerical work associated with the strike. or the Labour Relations Board. the employer is allowed to continue to operate. labour relations legislation does not extensively regulate picketing. While employees are on strike. 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. they will usually receive strike pay from the union. If employees cmmot engage in picket duty because of a disability. There is a difference between what the law allows pickets to do and what some actually do. and the differences between jurisdictions make this a complex area. Accordingly. Legally a picket line can only be established to inform or persuade the public. H owever. the employer can apply to the courts in most provinces for an injunction to limit the number of pickets. Even where the law allows replacement workers to be used. T he union will likely establish a picket line at the employer's place of business. . the union or the employer might also seek a declaration from the Labour Relations Board that there has been an unlawful strike or lockout. usually a relatively small amount of money linked to the number of dependents the striker has. The damages would be the amount required to compensate the innocent party for the breach of the agreement. Pickets will usually carry signs to advise the public abotlt the strike and may also hand out leaflets. It follows that in the event of an illegal strike. In Chapter 8. One court decision deserves mention. The union does not automatically have liability in the event of an illegal strike by employees. Strikes. The union or employer should seek legal counsel in its jurisdiction. for example at a .<\n arbitrator cmmot order employees involved in an illegal strike to pay damages. In order to receive strike pay. and if the matter is not settled an arbitrator could award damages. Picketing Secondary p icke ting refers to picketing a t a location othe r than the workplace oi striking employees. If pickets engage in such unlawful activity. The Board might order damages to be paid. the courts had held that secondary picketingpicketing at a location other than where striking employees work. In some strikes. It will only be liable if union officers are involved in the illegal activity or the union fails to take action to halt it. The possibility of obtaining a remedy in more than one forum. Pickets cannot trespass on private property. pickets may be excluded from areas such as shopping malls. unions have also attempted to inform the community by putting notices in newspapers and distributing leaflets to homes. Because an illegal strike or lockout is a breach of the collective agreement. British Columbia. and Quebec. the union or employer might file a grievance. and Lockouts Remedies for Illegal Strikes a nd Lockouts If there is an illegal strike or lockout. The law does not allow pickets to obstruct entry or intimidate. Until 2002. The union may arrange with the employer for some benefits to be continued by paying the relevant premiums. When employees go on strike.290 Chapter LO Contract Dispute Resolution. and picketing issues are dealt with in the courts. individuals must usually engage in picketing. Alberta. The strike rate referred to here is the percentage of collective agreements signed after a strike in the private sector. These agreements encourage the parties to put the strike behind them and move on.Chapter 10 Contract Dispute Resolut ion.Canada. if a strike by garbage handlers was causing exceptional difficulties. time lost because of strikes. " 17 \Vhat constitutes wrongful action has yet to be determined. a vote could be ordered. the parties have not reached an agreement and a strike has continued indefinitely. and the employer must reinstate him or her unless the work the employee normally performs is no longer done. If employees vote in favour of the offer made by the employer. TI1erefore. in the 1990s the strike rate was reduced to 9. the Supreme Court of Canada handed down a decision that secondary picketing only violates the law if it involves "wrongful action.7 percent in 1993. To avoid problems or disputes regarding the reinstatement of employees. and requiring any proceedings such as bad faith bargaining complaints to be withdrawn.9 percent in 1992 and dropped to 2. where employers are allowed to hire permanent replacement workers and striking employees do not have the right to reclaim their jobs. and Lockouts customer of the employer. In the future. End of the Strike In five jurisdictions. For example. British Columbia. Ontario. some jurisdictions could pass legislation to regulate secondary picketing. the strike rate was 15. A strike will usually continue until the parties reach a collective agreement. it will be the basis of an agreement and the strike will end. it should be noted that some forms of secondary picketing that were formerly illegal are now permissible. In a few cases. the union will seek an agreement with the employer to deal with the issue. In other jurisdictions that do not have an express right to reinstatement. Manitoba. 19 291 . Prince Edward Island. and the Canadian strike record are discussed here. In the 1980s. T his is another illustration of government as an actor in the labour relations system. EXTENT OF STRIKE ACTIVITY The incidence of strikes. because the right to reinstatement provided by the act could expire. any such regulation must not contravene the freedom of expression provisions of the Canadian Charter of Rights and Freedoms.1 percent. Until the law is clarified by additional court decisions or legislation. Incidence of Strikes Strike activity fluctuates a great deal from year to year. however. a union may call an end to the strike without a new contract being negotiated.4 percent. and Saskatchewan provides that when a strike has ended. the rate was 11. Quebec. This should be contrasted to the situation in the United States. Strikes. and Ontario-labour relations legislation provides that the Minister of Labour or cabinet may order a final offer vote by employees where it is in the public interest to do so.was automatically illegal. Legislation in the federal jurisdiction. Manitoba. however. Newfoundland and Labrador. 18 To illustrate how much the strike rate can change from year to yeat. The parties may enter into a back-to-work protocol that could include terms prohibiting discipline for actions during the strike. however. striking employees must be reinstated and given priority over any employees hired as replacement workers. In 2002. In Ontario the provisions for the reinstatement of employees have a qualification: an employee may make an unconditional application in writing to return to work within six months of the start of the strike. unions in Ontario have to be concerned about a strike lasting longer than six months. the union could file an unfair labour practice complaint if an employee was not reinstated. providing that there will be no discrimination or retaliation for actions during the strike. 06 0. 1980-2008 Year Strikes and Loc kouts Workers Involved '000 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 1028 1049 679 645 716 829 748 668 548 627 579 463 404 38 1 374 328 330 284 381 413 378 381 294 266 297 260 151 206 187 452 342 464 330 187 164 486 582 207 445 271 254 1 52 102 81 149 276 258 244 160 143 221 166 79 259 199 42 66 41 Person-days Not Worked '000 Percentage of Es timate d Working Time 9130 8850 5702 4441 3883 3126 7151 3810 4901 3701 5079 25 16 2110 1517 1607 1583 3269 3608 2440 2441 1644 2203 2986 1730 3185 4148 793 1771 876 0.08 0.02 0.11 0.09 0. and Lockouts Time Lost Beca use of Strikes Figure 10-5 shows the number of strikes. the work time lost because of strikes is less than the time lost due to absenteeism or workplace accidents. the average number of workers involved in strikes.35 0.05 0.17 0.09 0.13 0.37 0.05 0. Number 8.05 0.07 0.15 0.05 0. Volume 21.11 0.17 0.statcan . Although strikes attract attention.18 0.1 4 0.07 0. (Autumn 2009). T hese numbers confirm that strike activity has been very volatile.27 0. Cata logue 75-001-XPE.02 Source: Adapted from Sta tistics Canada publication Perspectives on l abour and Income.12 0. Strike activity has declined since the 1970s.23 0. page 75 a nd a lso available on Statistics Canada website http . FIGURE 1 0-5 Strikes and lockouts in Canada. and the percentage of work time lost to strikes from 1980 to 2008.12 0.08 0. Strikes.//www. Most of this decline has occurred in the private sector.09 0.05 0.292 Chapter 10 Contract Dispute Resolution. although the number of strikes in any year can be affected by the number of agreements negotiated.cajbsolc/english/bsolc1catna=75-001 -X . the wrong conclusion might be reached. 280 no-board report. and Lockouts Internationa l Comparisons When considering the Canadian strike record in comparison to other countries. Implications for Practice 1. in 2001 there were 379 strikes and lockouts in Canada and only 29 in the United States. conciliation and/or mediation are available to the parties through the government ministry responsible for labour issues or the Board. p. 283 work-to-rule. 277 conciliation officer. p. 280 wildcat strike. p. 281 mediator. Accordingly. Employers in most jurisdictions are required to reinstate workers at the end of a strike. all disputes in which 10 or more workdays are lost are counted as a strike. However. The union and the employer should also consider having a private mediator help them reach a collective agreement. reducing conflict within bargaining teams. The w1ion and the employer should reach an agreement that provides when workers who have been on strike will return to work. 280 mediation-arbitration. in some other countries. p. 280 hot cargo clause. p. 282 Review Questions 1. they only include those who are on strike. p . 278 narcotic effect. p . There are legal restrictions on strikes and lockouts. p. p. 278 back-to-work legislation. 277 cooling-off period. p. Strikes. 290 total package final offer selection. For example.Chapter 10 Contract Dispute Resolut ion. p. 277 fact-finding. TI1e Canadian strike data do not include employees laid off as a consequence of a strike. In Canada. 282 secondary picketing. In Canada. 2. and unions and employers should ensure these are met. despite these measurement problems. the time lost because of strikes in Canada is high by international standards. Strikes are caused by both economic and non-economic factors. p. 277 rotating strike. T his is largely because Canadian strikes generally last longer than those in other countries. In the United States. Identify the key policy variables relating to third-party assistance in contract dispute resolution. strike data also include employees laid off as a result of a strike. a strike is only included in the statistics if it is a work stoppage of 1000 or more workers. p. lockouts are not included. 3. 20 Unless the reader of these munbers takes into account the definition of a strike used in each country. strike data includes time lost due to lockouts. p. p. Countries have different definitions of what constitutes a strike. 278 final offer selection. In all jurisdictions. 281 chilling effect. and in some jurisdictions provide notice of a strike. p. 280 conciliation board. Key Terms arbitration. Unions must conduct strike votes. p . comparisons between Canada and the United States of the number of strikes are of little value. 288 item-by-item final offer selection. p. Unions and em- ployers may be able to avoid some work stoppages by exchanging information. 293 . 290 strike pay. p. In the United States and some other countries. and ensuring negotiators are experienced. 4. several measurement problems must be noted. p. Is it possible that some employees and unions would not want the right to strike? Explain. Determine the issues that have lead to a bargaining impasse.gc. to what extenr do you think strikes can be viewed as mistakes? 3. 3. 8. Discussion Questions 1.shnnl) provides information on major work stoppages. Strikes.ca/eng!labour/labour_relations/ info_analysis!bulletin/archive. The Workplace Bulletin (http://www. On the basis of your experience and the reading of this chaptet. A newspaper report indicates that a union can "legally" go on strike or the employer may lockout employees at midnight on a specified date. Go to the website for a union referred to in Chapter 3 or a union you are familiar with. Why do some individuals views strikes as harmful? 2 . What are the arguments for and against this policy? 5. Identify the factors that affect the incidence of strikes. Describe the possible problems that are associated with arbitration. What does the reference to legality mean? Why is the strike or lockout legal at midnight as opposed to some other time? 4. What information is provided regarding any strikes the union is currently involved in? 2 . Describe the functions of strikes. . List the legal requirements for a strike or lockout in your jurisdiction. What concerns may unions and employers have regarding final offer selection? 6.294 Chapter 10 Contract Dispute Resolution. Why is arbitration infrequently used in the private sector? 5. and Lockouts 2. 4.hrsdc. 7. Distinguish between conciliation or mediation. lubitration of second and subsequent contract disputes on the request of one party is provided for in only one jurisdiction. W eb Research 1. and arbitration. the manager was autho rized to investigate cost cutting meas ures includi ng movi ng the warehouse. Employees w ho w ished to remain w ith the company would be assigned to one of the new locations and their terms of work would be the same as other driver I salespeople operating outside of the capital city. 2010.Chapter 10 Contract Dispute Resolution. On Apri l 26. The union started a strike on December 4. and related products to grocel)' and convenience stores across the prov i nee. Employees outside of the capital city. The collective agreement contained a recognition article whi ch prov ided: "The company recognizes the union as the sole collective bargaining agent of all employees of th e company employed in the city of A nytown. A union was certif ied to represent the 10 driver/salespeople working at the company's Anytown location o n November 11. save and except superv isors and persons above the rank of supervisor." The manager of the Anytown locati on complained to the company 's head office that she could not o perate profitably if employees we re paid the same wages as employees in the capital. 2009. In Janual)' 2009. The company leases its warehouses. the company sent a memo to employees outlining an incentive bonus that would be avai Iable to employees over the next year. 2. the company made a formal announcement to employees indicating that it was changing its distributi on system. Explain the basis for any complaint by the union. 2009. none of w hom were unionized. ice c ream. The company empl oys driver/sa lespeople w ho ope rate out of warehouses in larger municipalities. Strikes. The union and the employer began contract negotiations o n March 12. . The company would be leav ing its warehouse in Anytown and relocating to four smaller warehouses in communities 5 to 10 km from Anytown. A collective agreement was eventually reached after the president of the company intervened and directed the manager of the Anytown locati on to ag ree to a contract providing that the Anytown employees would receive the same wages as provided in a collective agreement in the capital city of the province. 2008. Subsequently. Explain the outcome you expect in this situation. and it renewed a lease on its warehouse in Anytown for a five-year term i n Jun e of 2008. and Lockouts 295 Dairy Fresh Dail)' fresh distributes milk. Questions 1. they were not able to reach an agreement. were paid four dollars less per hour. however. Irving told the employees that w hat they were doing was w rong and th ey sh ou ld go back to work. a unio n vice-presid ent. a non-union company. promote. The collecti ve agreement between Coastal and the IWA contained the fo llowing provisio n: Section 3: No Strike Pending Grievance and Arbitration Procedure The Union agrees that it w ill not cause. he remained in the patio area. came to the workplace and to ld employees that they should return to work. the union started a legal strike on july 30. he left his too ls at his w orkplace and went to the lun chroom . M urray Irving was the local uni on president at Coastal. he advised his supervisor that he would not continue working. a district officer for the union. After making th is statement. the company called for tenders for concrete. sy mpathetic strike or other interference w ith work by the employees fo r any cause w hatso ever until all prov isions of this agreement relating to the grieva nce and arbitration procedure have been complied w ith. The Internatio nal Wood workers Association. diving boa rds. W hen Wayne Best. and Lockouts Coastal Forest Products Coastal Fo rest Products operates a plant that produces plywood. Irving to ld a superv iso r that he was engaging in a personal protest... Approximately a half-hour after Best arri ved. 2010. The collective agree ment between the empl oyer and the unio n expired on May 30. After negoti ations d id not lead to a renewal of the collective agreement. represented Coastal's productio n workers. he spoke to the employees and to ld them that by law he was required to tell them to go back to work . W hen Irving saw an M & K truck arrive to make a del ivery. How can the employer respond/ 2.296 Chapter 10 Contract Dispute Resolutio n. N on-unio n empl oyees w ere delayed by the picket line fo r ho urs w hen they entered or left the premises. Several custo mers of the company w ho were adv ised that there would be a delay in deli ve ry advised the company th at th ey were cancelling their o rders. slides. The contract was awarded to M & K Ready Mix (M & K). all employees returned to their workplaces. In the course of an expansion. The parties signed a protocol that prov ided that the union could delay management v ehi c les enterin g o r leav in g th e company property fo r up to 30 minutes. W hat action might the employer take in response to this situatio n/ 2. Fern MacGregor. Local 423 (IWA). Questions 1. The union claimed that there was an understanding that Coastal would use union suppliers. An hour later. Irving was told that a gro up of 40 employees had stopped working and we re gathered in a patio area. sit down. Irving went up to the gathering and saw that one of the employees there was a unio n steward . H e then returned to th e lunchroom. Strikes. About two hours after the disruption had started. and ladders. slowdown. The pic ket line established by the union prevented transport trucks fro m bringing in supplies and taking away fi nished products. W hen the M & K truck left Coastal property. sanction. The company employs 120 people w ho are represented by a union. inc luding pumps. W hat outcome do you expect in this easel Explain. was to ld about the M & K truck o n the property. approximately three hours after it had arrived. W hat remedies are available to the employer/ .. Questions 1. and jo ined the other employees in the patio area. o r authorize any strike. 2010. Sun Pool Accessories Sun Pool Accesso ries manufactures swimming pool equipment. 4.This appendix summarizes the key provisions relating each jurisdiction. 2. conciliation conunissioner. to third-party assistance in CANADA Complete details are set out in sections 71. appoint a conciliation officer. there is a report to the Minister and a strike or lockout is possible . or conciliation board will not be appointed. If the Minister notifies the parties that there wiU not be conciliation. advising that negotiations have not started within the time required or the parties have reached an tmpasse. CO NCILI ATI O N 1. or conciliation board. or 3. a strike or lockout can commence 21 days after such notification. If the Minister appoints a conciliation officer. and a 72-hour strike or lockout notice is provided. or on his or her own initiative where it is deemed advisable.79 and 81. or 2.87 of the Canada Labour Code. appoint a conciliation commissioner. Either party may send a notice of dispute to the Minister of Labour. the Minister may: 1. 3. notify the parties that a conciliation officer. After receiving the notice of dispute. or 4. establish a conciliation board. conciliation conunissioner. it is a one-step process. MEDIATION 1. At the request of the parties or the Minister. If one of the parties accepts the reconunendations made by the mediator. The Minister notifies the parties of the board's recommendations. and if no settlement is reached. The Minister may establish a disputes inquiry board. 3. 2. The parties may agree in advance that a conciliation commissioner's report or a conciliation board's recommendations will be binding. ALBERTA Complete details are set out in sections 64-70 and 105. The completion of conciliation or mediation is not a prerequisite to a strike or lockout. MEDIATION 1. the mediator either makes recommendations to settle the dispute. the parties may strike or lockout after a 14-day cooling-off period. or on his or her own initiative. they are incorporated into a collective agreement. . 5. the Minister may require the Director to appoint a mediator. 2 . The board attempts to reach a settlement.298 Chapter 10 Contract Dispute Resolution. If the mediator makes recommendations and both parties accept them. The Minister may appoint a mediator to assist the parties at any time on their request. a mediator may make recommendations for a settlement. If there is no settlement. DI SPUTE S IN Q UIRY 8 OA RD 1.which the parties are required to respond to within the time specifiedor notifies the parties that no recommendations wiU be made. or the time allowed to respond to the recommendation expires. and a strike requires a secret ballot vote. or the parties reject the recommendations.Minister. When conciliation is directed. Strikes. The parties may strike or lockout 21 days after the Minister directs that there will be no conciliation. Alternatively. 4.111 of the Labour Relations Code. it may ask the Board to conduct a vote on the acceptance or rejection of the recommendations by the other side. If the mediator does not make any recommendations. 5. DI STIN CTI V E FEATURE S 1. and Lockouts 21 days after the parties are notified of the receipt of the report and a 72-hour strike or lockout notice has been provided. A strike or lockout is also subject to a 72-hour notice to the other party. or the parties are advised of the results of a vote on the mediator's recommendations. the board makes recommendations to the . Either or both parries may ask the Director of Mediation Services to appoint a mediator. The parties may accept the reconunendations of the disputes inquiry board. 2. The fact-finder confers with the parties and makes a report to the associate chair of the mediation division. If the disputes inquiry board is established after a strike or lockout has begun. the board directs a vote of the members of the party. The mediator reports to the associate chair on the outcome of the mediation. BRITISH COLUMBIA Complete details are set out in sections 7 4. they become the basis for the terms of a collective agreement. the associate chair of the mediation division at the Board may appoint a mediator. When the parties are notified of the appointment. The parties must wait until 48 hours after the associate chair has advised them that he or she has received the mediator's report before they can legally engage in a strike or lockout. Unless a party notifies the Minister that it accepts the board's recommendations within 10 days. and any findings relevant to the making of a collective agreemem. 4. the mediator must also give a report to the parties. 3. The provisions to refer a mediator's recommendations to a vote are unique. DISTIN CTIVE FEATURES 1. Alternatively. each must provide the factfinder with a notice setting out the matters agreed upon and all matters remaining in dispute. 299 . A strike or a lockout is not legal during the mediation process. and Lockouts 2. 3.Chapter 10 Contract Dispute Resolution. setting out the matters agreed upon. Strikes. 2. FACT-FINDING 1. 2. a strike or lockout carmot begin untillO days after the parties received a copy of the board's recommendations or until 72 hours after the parties have been notified of the results of a vote on the recommendations. and the report may include recommended terms of settlement. The mediator's report is a prerequisite to a strike or lockout. the Minister may appoint a mediator who meets with the parties and works on resolving the areas of disagreement for a new collective agreement. they are binding upon that party. The associate chair of the mediation division at the Board may appoint a fact-finder. If requested by the parties. MEDIATION 1. those matters remaining in dispute. At the request of either party. and if the vote approves the recommendations. and if that is the case. 3. it has no effect on the strike or lockout. If a disputes inquiry board is established before the conunencement of a strike or lockout.78 of the Labour Relations Code. or directed by the minister. The legislation provides for mediation instead of conciliation as the primary method of dispute resolution. A strike or lockout is also subject to a 72-hour notice. 300 Chapter 10 Contract Dispute Resolution.118 of the Labour Relations Act. 4. At the request of either party or where the Minister deems it advisable. the . The associate chair of the mediation division provides a copy of the report to the parties and may make it public. 2. 2 . SECO ND O R S UB SEQ UENT CO NTR ACT A RBITRATI O N 1. The parties may jointly request that the Minister appoint a mediator they have agreed upon. MANITOBA Complete details are set out in sections 67. a nd Lockouts 4. Neither mediation nor fact-finding is a prerequisite to a strike or lockout.Minister may appoint a conciliation board. If a conciliation officer is not able to help the parties reach an agreement. and the Nlinister may make thereport public. the tvlinister may do so and may also appoint a mediator on his or her own initiative. T he Board inquires into the negotiations and determines if there has been bargaining in good faith and whether or not the parties are likely to conclude an agreement within 30 days if they continue to bargain. 3. 2. CO N C ILIATI O N 1. the . and there is a strike or lockout in progress. If the Board finds that the . and the Nlinister is required to appoint that person. DI STIN CTI V E FE ATURE S 1.Minister appoints a conciliation officer. The parties may agree that the reconunendations of the mediator will be binding. T he parties may agree that the recommendations of the conciliation board wiU be binding. MEDIATI O N 1. T he conciliation officer reports to the minister regarding the issues the parties cannot agree upon and any recommendations regarding further proceedings that could facilitate an agreement. The mediator reports to the tvlin ister. either party may apply to the Board for the settlement of the contract by arbitration. 3. The conciliation officer meets with the parties and tries to assist them to reach an agreement. If one party requests that the Minister appoint a mediator. Strikes. 4.68 and 95. Each party is required to advise the conciliation officer which terms and conditions are acceptable to them. 5 . When the parties have bargained with the assistance of a conciliation officer or mediator. The conciliation board reports to the Minister. the report is made available to the parties and may be made public by the Minister. The mediator provides an opportunity to each party to present evidence and also has the power to summon witnesses and take evidence under oath. and it is likely that an agreement will be reached within 30 days. Alternatively the M inister may appoint a conciliation officer on his or her own initiative. and a 24-hour strike or lockout notice has been provided. If the parries do not conclude an agreement within 30 days. 2. If a conciliation board is established. 301 . The appointment of a mediator terminates any previous appointment of a conciliation officer. If the Board finds that the party making the application is negotiating in good faith and the parties are unlikely ro conclude an agreement within 30 days. The Minister determines whether or not to appoint a conciliation officer. If the Minister decides not to appoint a conciliation officer. Strikes. T he provisions for the arbitration of a second or subsequent contract are unique to Manitoba. it directs that the contract terms be resolved through arbitration. the parties can strike or lockout seven days after the notification. provided that a 24-hour notice for a strike or lockout is provided.Nlinister. The parties can strike or lockout seven days after the release of the board's report. The parties may agree upon an arbitrator. The parties may agree to be bound by the conciliation board's report. DI STIN CTI V E FEAT U RE S 1. The conciliation board reports ro the . Either parry may request the M inister to appoint a conciliation officer. 3. it must allow bargaining ro continue and any strike or lockout ca n continue. At the request of either party or where the M inister deems advisable. 5. 2. T he report includes the officer's opinion as to the advisability of appointing a conciliation board. he or she may appoint a mediator. the Minister may appoint a conciliation board or advise the parties that a conciliation board will not be established. If the parties do not agree on an arbitrator. the officer meets with the parties and subsequently reports to the Minister.80 of the Industrial Relations Act. provided that a 24-hour strike or lockout notice is provided.Chapter 10 Contract Dispute Resolution. and the Minister releases the report to the parties. it hears the parties and tries ro bring about an agreement. and Lockouts parties are negotiating in good faith. CO NCILI ATI O N 1. a strike or lockout is possible seven days after the parties are notified. MEDI ATI ON 1. Upon receiving a conciliation officer's report. either of them may make a new application for the settlement of the agreement by arbitration. 3. When a conciliation officer is appointed. 4. the Board settles the terms of the agreement. If the Minister advises the parties that a conciliation board will not be established. Conciliation or mediation is not a prerequisite to a strike or lockout. NEW BRUNSWI CK Complete details are set out in sections 36 and 61. the Minister may appoint a conciliation officer. A mediator has the same responsibilities and authority as a conciliation board and reports to the Minister. The mediator confers with the parties and attempts to assist them reach an agreement. Strikes. T he M inister may decide not to appoint a conciliation board. T here can be a strike or lockout when the Minister declares that a conciliation board will not be appointed or 15 days have elapsed after the request was made to the Minister. The mediator reports to the !vlinister. The conciliation board hears the parties and reports its findings and recommendations to the !vlinister. or a two-step conciliation process involving a conciliation board. 2.or at any time-the Minister may appoint a mediator. DISTINCTI V E FEATURES 1. At the request of either party. 2.302 Chapter 10 Contract Dispute Resolution. NEWFOUNDLAND AND lABRADOR Complete derails are set out in sections 79-80 and 106-121 of the Labour Relations Act. and the parties may strike or lockout. The parties may agree that the report of a mediator will be binding. however. 4. T he conciliation officer confers with the parties and reports to the Minister regarding the matters they have been able to agree upon. The parties may agree that the report of the conciliation board will be binding. or on his or her own initiative. or on his or her own initiative. a one-step conciliation process. The Minister provides the report to the parties and may make it public. CONCILIATION 1. . The parties can strike or lockout seven days after the Minister receives the report of the conciliation board. When there is a request for a conciliation board. Each party is required to notify the M inister regarding which recommendations of the report it accepts and rejects. and the advisability of appointing a conciliation board. TI1e appointment of a mediator terminates any previous appointment of a conciliation officer. The time allowed for the Minister to respond is extended if a conciliation officer was appointed. the Minister may appoint a conciliation board. 3. 3. and Lockouts 2. 2. A strike or lockout cannot be declared unless a party has requested the appointment of a conciliation officer. There may be no conciliation. and the report of the mediator is treated in the same manner as the report of a conciliation officer. as noted above under conciliation. Upon the request of one of the parties after the report of the conciliation officer. MEDIATION 1. T he Minister decides whether or not to appoint a conciliation board. the legislation does not require an appointment to be made. The Minister may appoint a mediator at any time. and Lockouts DI STIN CTI V E FE ATURE S 1. A strike or lockout cannot be declared unless one of the parties has requested a conciliation board and the conciliation board has reported. 2. NovA S c oTIA Complete details are set out in sections 37-40. Strikes. Seven days after the Minister receives the conciliation board report and upon giving 48 hours notice to the Minister. 2. and a 48-hour notice of the strike or lockout is provided. 3. mediator. 303 . With the Minister's permission. ONTARIO Complete details are set out in sections 18-40 of the Labour Relations Act. The Minister provides the report to the parties. M ED IATI ON 1. DI STIN CTI V E FEATURE S 1. If no agreement has been reached. there may be a strike or lockout 14 days after the mediator's report has been su bmirted to the Minister. T he parties determine whether a conciliation board will be established. and it may be made public. or the Minister determines that a conciliation board will not be appointed. If the parties do not request a conciliation board. the M inister appoints a conciliation board that attempts to assist the parties to reach an agreement and reports to the M inister. the mediator's report takes the place of a conciliation officer's report. and the parties request it. TI1e mediator endeavours to assist the parties reach an agreement and reports to the Iviinister. At the request of either party. the parties may strike or lockout. or conciliation board has reported to the Minister and the relevant cooling-off period has expired. CO NC ILI ATI O N 1. 2. or on his or her own initiative. If the mediation is unsuccessful. A strike or lockout cannot be declared unless a conciliation officer. The conciliation officer confers with the parties and reports to the Minister regarding the matters that the parties have agreed upon. and any other relevant issues. the Minister may appoint a conciliation officer.Chapter 10 Contract Dispute Resolution. the parties may request a conciliation board as noted above. 61-75 of the Trade Union A a. The parties may agree that the report of the conciliation board will be binding. the matters they have not agreed upon. DI STINCTIVE FEATURES 1. PRINCE EDWARD ISLAND Complete details are set out in sections 25. is conunonly used. Strikes. The conciliation officer confers with the parries. and the parties may strike or lockout seven days after the mediator's report is released. the parties may strike or lockout 14 days after the notification. either of the parties may apply for a mediator to be appointed. Either party may request the Minister to appoint a conciliation officer. At the request of either party or on his or her own initiative. 2 . 2 . and the advisability of appointing a conciliation board or a mediator to endeavour to bring about an agreement. The report of a mediator has the same effect as a report of a conciliation board. If the Minister advises the parties that a conciliation board will not be established. The conciliation officer meets with the parries and reports to the JVlinister on the matters the parties have agreed upon. only the first step. Any time after the conciliation process has been completed. MEDIATION 1. CONCILIATION 1. and reports to the Minister. which is the common practice. Although the legislation provides for a two-step conciliation process. the Minister may appoint a mediator they have selected. 2. T he parties cannot strike or lockout until a conciliation officer. T he appointment of a mediator terminates any previous appointment of a conciliation officer. The mediator attempts to assist the parties to reach an agreement and reports to the Minister. 3.34 of the Labour Act. the matters upon which the parties cannot agree. The appointment has no effect on a strike or lockout.304 Chapter 10 Contract Dispute Resolution. If no agreement has been reached. T he parties may strike or lockout seven days after the report has been released. the . conciliation board.lvlinister may appoint a conciliation officer. attempts to assist them to reach an agreement. At the request of the parties. If a conciliation board is established. 4. The Minister releases the report to the parties. or mediator has reported to the Minister and the relevant cooling-off period has expired. it endeavours to assist the parties to reach an agreement and reports to the JVlinister. .Minister must advise the parties whether or not a conciliation board will be established. the . 3. and Lockouts C O N CI LIATION 1. a conciliation officer. 2 . Seven days after the report is filed with the l'vlinister. the parties may strike or lockout.24 of the Trade Union Act. The parties may agree that they will be bound by the board's recommendations. 2. 4. 2. SASKATCHEWAN Complete details are set out in sections 22.Minister may appoint a medi- ator instead of a conciliation board. T he mediator's report is provided to the parties and may be made public by the Minister. The appointment and report of a conciliation officer must precede the appoint- ment of a conciliation board or a mediator.Chapter 10 Contract Dispute Resolut ion. MEDIATION 1. At the request of either of the parties. the Minister may appoint a special mediator. 305 . T he parties may agree to be bound by the mediator's reconunendations. Seven days after the conciliation board report is filed with the l'vlinister the parties may strike or lockout. After the conciliation officer submits a report. The mediator attempts to assist the parties to reach an agreement and files a report with the M inister. The parties may agree that the conciliation board's recommendations will be binding. The board's report is provided to the parties and may be made public. the Minister may establish a conciliation board. or mediator has reported to the Minister and the relevant cooling-off period has expired. or on his or her own initiative. and Lockouts 3. If a conciliation board is not established. DISTINCTIVE FEATURES 1. The conciliation board attempts to assist the parties reach an agreement and reports to the l'vlinister. the . The Minister may appoint a conciliation board that attempts to assist the parties to reach an agreement and reports to the l'vlinister. 2. the parties can strike or lockout 14 days after the conciliation officer's report is filed with the M inister. At the request of either the parties. or on his or her own initiative. T he report is provided to t he parties and may be made public by the Minister. The special mediator assists the parties and reports to the Minister. 2. Strikes. conciliation board. CONCILIATION 1. T he parties cannot strike or lockout until a conciliation officer. MEDIATION 1. the parties cannot strike or lockout while the matter is pending before the Board. if a dispute has been referred to the Board. DISTINCTIVE FEATURE S 1. . The parties may agree to submit a dispute to the Labour Relations Board. However. or special mediator. T hird-party assistance is not required before a strike or lockout.306 Chapter 10 Contract Dispute Resolution. conciliation board. and Lockouts LABOUR RELATIONS BOARD 1. The Board hears the parties. and its finding is binding upon them. Stri kes. or a conciliation board or special mediator has been appointed. a discussion of the future focuses more on the survival-rather than on the flourishing-of public sector collective bargaining in Canada. In this context. 113 3. 109.Gene Swimmer and Tim Bartkiw 1.118 4.113 . Describe the distinctive features of labour relations in the public sedor 103. Identify the size and importance of the public sector 100 2. rather than play by the existing rules of the game.The past decade has seen unilateral action by the federal and provincial governments that have resorted to ad hoc legislation to resolve public sector labour disputes. Outline the development of labour relations in the public sedor 29. Outline recent trends in public sector labour relations 111 . 1 . indirectly in health." Many observers thought the back-to-work legislation was prompted by the upcoming 2010 Winter Olympics. social services. The unio n indicated that it would ag ree to arbitration to resolve the dispute. Subsequently the pa ramedics returned to work. we should check to determine how the public sector has been defined. we should clarify its definition. that it described as "repugna nt". "The decision to introduce this legislation was a difficult one and certainly not one that we take lightly. T he public sector is defined here as including three components: individuals working directly for local. and we need the people to contact their MLAs and tell them they must be accountable. prior to the vote being held. On the next weekend.308 Chapter II Public Sector Labour Re lations On April 1.6 percent increase over a three-year term. recent developments in public sector labour relations. the British Columbia Supreme Court ru led that such action would be illegal. we had to aa." When the union indicated that it planned to refuse overtime work. This accounts for 24. On November 2. back to work legislation to end the strike. but that puts us in a bad negotiating position. The British Colombia paramedics strike illustrates the essential nature of some public services and how governments can become involved in public sector labour relations as both an employer and a regulator. Wages were the key issue in the dispute. The legislation pro vided for a settlement on the terms of the employer's last offer: a 3 percent wage increase. so we have this big moral. and government business enterprises. to the membership for a vote. 2009. ethical dilemma. "The bottom line is we need the government to show accountability. We will consider the size and importance of the public sector. Th is incident also refers to three alternative contract dispute resolution mechanisms that will be referred to in tllis chapter: a strike. None of us are in this job to put people in danger. the acrimony caused by the strike lingered on. provincial. with a one-year term . The union also sa id that it would be asking the Labour Relations Board to reconsider the definition of essential services. and federal governments." Another union official commented. SCO PE O F THE P UB LI C S ECTO R Total employment in the public sector was 3. and education. As the strike continued into August. Bill 21 was passed on November 7. the union indicated that it would take the employer's offer. one union representative stated. 2009. and people who work for govenunent business enterprises and Crown corporations such as the Canadian Broadcasting Corporation.5 million as of December 31.5 percent of employment. provincial. Whenever we are considering reports and commentary on the public sector. THE P U BLI C SE CTOR : SIZE AND IMPORTAN CE DEFI N ITI O N O F THE P UB LI C S ECTO R The pub) ic sector includes all persons employed directly by local. But it was clear that after seven months of failed attem pts to reach an agreement and with no hope for a negotiated settlement in sight. differences between the public and private sectors. however. and a controlled strike. Before discussing the size and importance of the public sector. The employer was offering a 3 percer1t wage increase over a one-year contract. 3500 paramedics represented by the Canadian Union of Publ ic Employees in British Columbia started a province-wide strike.2 Employment in the public sector is . Some commentary on the public sector does not include individuals working in government enterprises. the employer would not agree to arbitration stating that an affordable solution had to be found. The "strike" was different because it was subjea to an essential services order issued by the province's Labour Relations Board that required the union to maintain ambu lance service. The health minister said. We can't take job aaion that might hurt the general public. In September. however. and compare public and private sector compensation. and federal governments. individuals who are indirectly employed by governments in health and social services and education. while the union was seeking a 13. the province introduced Bill 21. arbitration. 'We're trying to put pressure on the government without hurting the public. hundreds of pa ra med ics booked off sick in protest. There was also a concern that a unionized public sector would have too much power. In recent years (2002. Legislation establishing bargaining rights in 1944 in Saskatchewan covered both the public and private sectors. DEVELOPMENT OF COLLECTIVE BARGAINING IN THE PUBLIC SECTOR The development of collective bargaining in the public secror is fairly recent. in particular control over budgets. in view of the services provided. many public-sector employers are the only provider of their service. union density was 70. and 0 . Figure 3-6 showed that the two largest unions in Canada were concentrated in the public sector. It provides vital services such as health care. and federal govenunents. The public sector is an important component of the labour relations system. and they have had the same right to organize as private sector employees. The number of people employed makes it an important part of the economy.Chapter II Public Sector Labour Relations distributed as follows: 1. and slightly more than half of all union members are public sector employees. police. Most public sector employees were not allowed to unionize until the late 1960s and early 1970s.3 percent in the private sector. Also. and fire protection. 309 . Union density is much higher in the public sector than in the private sector. education. provincial. while public sector unions such as the Canadian Union of Public Employees have increased their membership by over 9 percent. the number had increased to 2.6 percent in the public sector and 16. where if an employer suspends operations customers can obtain services elsewhere. 1.4 million. some private sector unions such as the Canadian Auto Workers and the Communication. only 40 000 public sector employees were unionized. and tllis would lead to excessive increases in compensation. As of 2008. IMPORTANCE OF THE PUBLIC SECTOR The public sector is important for several reasons. It was also thought that governments should not be forced to give up control of the public sector. Unlike the private sector.1 percent of employees are covered by a collective agreement compared to only 17.3 million work in government enterprises. In 1946. by 2008. 75 .9 million are indirectly employed in health and social services and education.4 million are directly employed by local.7 percent in the private sector. most municipal employees other than police and fire services are covered by private sector labour relations legislation. T here were some exceptions. Energy and Paper Workers Union of Canada have suffered losses in membership. generally did not include the public sector. A strike could mean an interruption of the service. 4 The federal and provincial legislation that established collective bargaining rights in the 1940s and 1950s.2009). 3 In the public sector. The essential nature of some of the services provided was a concern. WHY PUBLIC SECTOR EMPLOYEES WERE NOT ALLOWED TO UNIONIZE Several reasons have been cited for the delay in extending the right to unionize to the public sector. referred to in Chapter 3. 310 Chapter II Public Sector Labour Re lations EMPLOYEE ASSOCIATIONS Prior to public sector employees being granted the right to unionize, they formed employee associations to promote their interests. T hese 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. T hey included members of management, and did not join labour federations. T he associations consulted with govenunents 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. T he 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 EX TEN OED TO THE PUBLIC SECTOR In 1967, the federal government enacted the Public Service Staff Relations Act (now the Public Service Labour Relations Act), which 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 en acted 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 w ere passed. There was a g reat d eal of variation with respect to the right to s trike in the provincia l legislat ion. In some provinces, government and other public sector emp loyees were given the righ t to strike. In other provinces, employees w ere not allowed to strike, and interest arbitration was established as the contract d ispute resolution mechanism. \V hether some public sector employees should be allowed to strike is an important question, which is referred to in Labour Rei a tions Issue 11-1. Should Teachers Be Allowed to Strike? In some provinces, teachers are not allowed to strike. The question of whether teachers should be allowed to strike has been an election issue in some provinces. Suppo rters of a ban on teacher strikes contend that publ ic education is an essential serv ice. Those who say that teachers should be allowed to strike claim that publi c education is not an essential serv ice. They admit that strikes may be inconvenient, but contend that public education is not in the same category as othe r essential serv ices, such as medical ca re. They also argue that the alternative to a stri ke, a rbitration , leads to higher costs. They point to cases in which a rbitrators have ordered higher wage increases than have been budgeted for and claim that this has caused cuts in other areas, which have harmed students. Finally, they claim that a ban o n teacher strikes would take away a fundamental freedom. Should teachers have the right to strike/ Chapter II Public Sector Labour Relations DISTINCTIVE fEATURES OF PUBLIC SECTOR LABOUR RELATIONS Labour relations in the public sector have distinctive features from those in the private sector. EMPLOYERS Several unique features of public sector employers affect labour relations. 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 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 contract outcomes. In some cases, governments have enacted legislation that rolls back compensation increases provided for in previously negotiated agreements. Divided Authority In the private sector, there is one voice for management, and it is usua lly known where the employer stands. In the public sector, ma nagement authority is sometimes divided. In a paper analysing a strike at the Un iversity of Manitoba, John Godard has referred to seven groups in addition to the employer bargaining team with potential direct or indirect involvement in the administration side, including the central administration of the university, the Board of Governors, and the government caucus. 5 In the public sector, it is possible that authority is divided between administrators the union usually deals with and elected officials. This may prompt union leaders to attempt to go around administrators and influence elected officials. 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 administrators negotiating for the employer, and it may attempt to pressure politicians to intervene. Political Bottom Line In the private sector, employers are profit-seeking organizations, and collective agreement outcomes are largely determined by economic factors. T he employer's ability to pay and retain customers is a key factor. 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 reelection, not profits. Strikes in the private sector are aimed at imposing losses on the employer so that it will agree to a wage increase. In the public sector, governments do not always incur losses during a strike; they may actually save money. The purpose of some public sector strikes is to influence 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 any dispute with the employer to maximize a favourable reaction from the public by referring to the quality of patient care or the quality of education. H owever, it is possible that some public sector strikes will not generate public interest. 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 311 312 Chapter II Public Sector Labour Re lations much public concern. H owever, if college or university professors strike, there will likely be calls for government action after a short time. Financia l 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. In view of the present economic and political climate, this does not appear to be possible. The deficit spending undertaken by governments in response to the 2008- 09 recession has left governments with increased debt that will make future contract negotiations more difficult. EM PL OY EE S A ND UN IONS Human Resources and Ski lls Development Canada website listing public sector labour relations legislation :http//www.hrsdc.ge .cq! eng/labour/labour_law/ind_rel/ index.shtml T here are more unionized white-collar and professional employees in the public sector than in the private sector. This may result in public sector unions having different priorities and objectives. Teachers in the public sector may be concerned with issues relating to class size and professional developmem. In the private sector, most bargaining unit members are men. In the public sector, most are women. This leads to increased concerns regarding issues such as pay and employment equity. The importance of public opinion will affect the methods unions employ. Public sector unions make greater use of media campaigns to achieve their objectives. Unions have placed ads in newspapers and magazines attacking government privatization policies. The Public Service Alliance of Canada has placed ads in bus shelters attacking the federal govenunent for offering a 2 .5 percent wage increase to some of its employees at a time when deputy ministers and members of Parliament were receiving larger increases. 6 LE G ISLATI V E FRAM EWO RK Private sector labour relations in each jurisdiction are regulated by a statute that provides a uniform set of rules covering union certification, contract negotiation, and contract administration. T his legislation also applies to municipal employees. All jurisdictions except Saskatchewan also have a general public sector labour relations statute that applies to goverrunent employees. For example, in British Columbia there is a Public Service Labour Relations Act, and in Nova Scotia, a Civil Service Collective Bargaining A ct. Police, firefighters, health care workers, and teachers are covered by the private sector legislation, the general public sector statute, or special legislation relating to one occupation, such as the Public Schools A ct covering teachers in Manitoba. 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 that possibly affect public sector employees, or there may be seven. To illustrate how varied the legislative framework is, teachers are regulated by the general public sector statute in the federal jurisdiction, by the private sector statute in British Columbia, and by special teacher legislation in Nova Scotia. The key point is that there is a patchwork of legislation across the cou ntry, and groups such as teachers and nurses may or may not have the right to strike depending upon the jurisdiction. ESTA BLI SH M EN T O F B A RGA I N IN G RI G HT S In the private sector, Labour Relations Boards determine bargaining units after receiving input from the parties. In the public sector, bargaining units in some cases are Chapter II Public Sector Labour Rela tions 313 set out in legislation. For example, the federal Public Service Labour Relations Act establishes bargainjng uruts based on occupation. There is considerable variation across the provinces regarding the number and composition of bargaining units provided for provincial employees. In British Columbia, the legislation has established three bargaining units. In some provinces, one province-wide bargainjng unit is established.? SCO PE O F CO NTRA CT NE GOTIATI O N In the private sector, the parties are allowed to negotiate aU terms of employment and also the scope of the bargaining unit. In the public sector, legislation often restricts the number of issues that can be the subject of negotiations. With the exception of Saskatchewan, provincial employees have been prohlbited from bargaining over pension plans. Most provinces prohibit bargaining over employee training programs and promotion issues. T he Public Service Labour Relations Act prohibits bargaining over pensions, promotions, and technological change. 8 It is not possible to list all of the restrictions on public sector employees in various jurisdictions here. It should be noted that the scope of bargaining in the public sector is narrower than in the private sector, and reference should be made to the relevant legislation. CO NTRA CT DISPUTE RE SO LUTI O N If the parties are not able to negotiate an agreement in the private sector, the final dispute resolution mechanism is a strike or lockout. In the public sector, because some services provided are essential, it is not always possible to allow a strike or lockout. Hence, four primary methods of dispute resolution have developed: an unrestricted right-to-strike model, a no-strike model that relies on interest arbitration, a designated or controlled strike model, and legislation. 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 workers, such as municipal clerks, doing work that is not essential. Some public sector employees have been granted the right to strike despite the fact that their work appears to be essential. H owever, in the event these employees actually exercise their right to strike, they could be legislated back to work very quickly. For example, in 1999 when Saskatchewan nurses had the right to strike, they were legislated back to work six hours after the start of a legal strike. No-Strike, Interest Arbitra tion Model Conventional interest arbitration as a method to resolve contract disputes was referred to in Chapter 10. Both sides submit evidence to an arbitrator or an arbitration board that decides the terms of the collective agreement. The replica tion principle is a fundamental feature of interest arbitration. This principle 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. Labour Relations Issue 11-2 refers to the related issue of whether an agreement reached by the negotiating teams, but not ratified by one of the parties, should be admissible at a subsequent arbitration hearing. In cases where the memorandum of settlement has been reconunended by a majority of the bargaining team, it has been given significant weight by the arbitrator. In one case when the memorandum of settlement had only been recommended by half of the union's bargaining team an arbitrator held that it should be The repli catio n principl e holds that a n arbitration award sho uld reflect the agreement that the parties would have reached in negotiations. 314 Chapter II Public Sector Labour Re lations Should a Rejected Memorandum of Settlement be Admissible in Arbitration? Thames Eme rgency Medical Services Inc. (Thames EMS) employs paramed ics who are represented by the O ntario Public Service Employees Un ion (OPSEU). In 2003, contract negotiations between the union a nd management negotiating teams produced a tentative agreement, subject to ratification by the members of the bargaining unit and the employer. The bargai ni ng unit ratified the agreement, but the employer did not. Subsequently, the dispute was referred to interest arbitration. At arbitration, the employer argued that Website providing an interest arbitration dec ision: http;//utfa.orglcurrentissues,lbarga ini ngupd/ W inkler% 20Award/ W inkler% 20fi les/ Universi ty%20of%20Toronto%20 Fi nai%20Award%20%281%29.pdf the tentative agreement should not be admitted as evidence, while the union contended that the agreement should be referred to. The arbitrator admitted the tentative agreement into evidence, saying that it was an important ind icator of what a negotiated settlement would be. Should a rejected memorandum of settlement be admissible in interest arbitration proceedings / What are the policy arguments for and against the admissibility of the tentative agreement/ 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 reconunended by the union bargaining team so that the chances of a higher award at subsequent interest arbitration are reduced if the agreement is not ratified. The employer could consider making an offer conditional upon unanimous approval of the union bargaining team. T he 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 taken into account factors such as inflation, productivity increases, and the need to maintain minimum living standards, especially for lower-paid employees. Arbitrators do not believe public sector employees should be required to subsidize taxpayers by being paid lower wages to avoid tax increases.9 T he margin note refers to a website that provides an interest arbitration decision. T he link is also available on the website that accompanies the text. T here is evidence that interest arbitration leads to higher increases in compensation than increases obtained pursuant to bargaining where a strike is the final dispute resolution mechanism. 10 In response to the possibility that arbitrators award higher compensation to unions than they would be able to obtain through the strike route, governments have passed legislation requiring arbitrators ro consider the ability to pay and other factors. In Ontario, legislation has required arbitrators in education to render decisions that comply with legislation regulating instruction time and class size. 11 T he federal government has at times suspended the use of interest arbitration for a period, for example in 1996 and 1999. 12 Designated or Controlled Strike Model In the designated or con trolled strike model, employees have the right to strike, but a specified number of emp loyees must continue working to provide essential services to the public. In the designated or controUed strike model, employees are given the right to strike, but an agreed-upon number of employees must continue working to provide essential services to the public. If this model was applied to workers maintaining roads in the w inter, some workers would have to remain on the job if there was a strike. This model is used in parts of the public sector in the majority of the jurisdictions in Chapter II Public Sector Labour Relations Canada: the federal jurisdiction, British Columbia, Manitoba, N ew Brunswick, Newfoundland and L1brador, Ontario, Quebec, and Saskatchewan. T he parties attempt to agree on who will continue to work in the event of a strike. If the union and the employer cannot agree on this, the dispute goes to the Labour Relations Board or a board created by legislation governing the employees involved. A hearing is held, and the Board resolves the issue. 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 workers as possible be designated essential so that the disruption of service is reduced; unions prefer that a smaller number of workers 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. The history and details of the designation process in various jurisdictions is beyond the scope of this book. The essential services model, including the designation of employees, is described in Strikes in E..~sential Services, which is recommended to the reader who wishes to obtain more information. 13 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 t he dispute between the union and the employer to be resolved by interest arbitration. H owever, 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. As noted in Chapter 2, the Supreme Court held in 2007 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. 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? To answer this question, we will consider the potential advantages and disadvantages of strikes, arbitration, and designated employees. Four criteria are considered in Key Considerations 11-1: how the method will affect the likelihood of the parties negotiating their own agreement, the acceptability of the outcomes, the efficiency of the process, and the extent to which the method ensures the provision of essential services. 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 exceptional. Interest arbitration means that the parties avoid spending time and energy negotiating a designated employee agreement. However, interest arbitration reduces the likelil10od that the parties will be able to negotiate their own agreement because of the chilling and narcotic effects referred to in Chapter 10. A study that contrasted interest arbitration and the strike in Ontario found that there was evidence of chilling and narcotic effects when arbitration is used. 14 T he study found that bargaining units using arbitration failed to negotiate a settlement 8.7 to 2 1.7 percent more often than bargaining units that could strike. The failure to negot iate a settlement was more pronounced in some sectors. A bargaining impasse was more likely in the health care sector, especially among hospitals. It was also found that a 315 Chapter II 316 Public Sector Labour Re lations Considerations 11-1 Advantages and Disadvantages of Alternative Contract Dispute Resolution Mechanisms No-strike, interest arbitratio n Potential Advantages Potential Disadvantages Essential services are prov idedminimi zes disru ption to public. Reduced like lihood of voluntary settlement due to chilling and narcotic effects. Avoids negotiatio n of agreement regarding designated e mployees. Outcomes may not be acceptable to the parties. May lead to inc rease in other forms of industrial confl ict . Unrestricted stri ke Des ignated employees, o r contro lled strike Avoids negotiatio n of agreement regarding designated e mployees. Potential for disruption of service and harm to the public. Increased likel ihood of voluntary settleme nt. Possibility oi back-to-work leg islatio n be ing required to settle strike. Avoids complete loss of services caused by a n unrestricted strike. Requires time and energy be spent on negotiation of desi gnated e mployee agreeme nt. Greater like lihood of voluntary settleme nt than interest arbitration. Designation leve ls may be set too high o r too low. Strikes mi ght last longer. centralized bargaining structure led to higher levels of impasse. T his may be due to the fact in centralized bargaining the parties are seeking a common solution to various localized problems. It was also found that the size of the bargaining unit was a factor. Smaller bargaining units (less than 21 employees) were 9.5 times more likely to reach an impasse using arbitration. T his may be caused in part by the fact that smaller bargaining units do not have as much power when the strike is the dispute resolution mechanism. Arbitrat ion would allow these bargaining units to press for demands when they could not do so using a strike. T he study made an interesting observation relating to unions that bargain under both strike and arbitration regimes. It was found that unions that went to arbitration more where arbitration was the dispute resolution method had higher strike rates in bargaining elsewhere where a strike was possible. T his suggests a narcotic effect- the inability to negotiate settlements that has developed under the arbitration regime has spilled over into negotiations where a strike is possible. Also, there is a possibility that when an outsider 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. T here is evidence that when strikes are banned and replaced w ith interest arbitration, other forms of conflict such as grievances and slowdowns are increased. Chapter II Public Sector Labour Relations Strikes. T he 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 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. For example, where teachers have the right to strike, it has been necessary to end some strikes through legislation. Designa ted Employees . T he 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. The first designated employee agreement has posed a problem in a number of cases, and the parties have become involved in proceedings in which the Board was required to resolve the matter. T here is also the possibility that the designation levels might be set too high or too low. Because the government is still able to provide some services, there may not be enough pressure to force a settlement and the strike might last longer. A recent study examined the use of the three methods referred to here in several provinces. It was concluded that the designation model was an improvement over the other two models because it "is the most conducive to adequate provision of essential services, to voluntarily negotiated collective agreements, and to outcomes that all parties can live with. " 15 The study noted that the designation model is gaining popularity and has replaced the other two models in several jurisdictions. RECENT DEVELOPMENTS IN PUBLIC SECTOR LABOUR RELATIONS Labour relations in the public sector have been affected by enviromnental variables, in particular by economic, political, and social factors. ECO N OMY In the early 1990s, a recession reduced government income and increased expenditures on social welfare. The federal govenunent's debt increased from $27 billion to $305 billion from 1975 to 1988.16 T he average provincial debt increased from 24 to 37 percent of gross domestic product between 1992 and 1994. The situation for the provinces was made even worse when the federal government reduced transfer payments to the provinces between 1995 and 1998. To deal with the debt situation, governments had two broad options available: they could either increase revenues by raising taxes or decrease expenditures by cutting costs and services. T hey perceived that the political enviromnent eliminated the first option. It has also been argued that globalization made the option of increasing taxes impractical because higher taxes would push capital to other jurisdictions. The recession of 2008-09 will put pressure on governments to reduce spending for years to come. The recession reduced revenues while governments engaged in stimulus spending to rejuvenate the economy, leading to budget deficits. In 2010, Ontario was projecting a $25 billion deficit, and other provinces including Alberta 317 In 2010. funding could be reduced so that employers would be forced to pursue reducing compensation in contract negotiations. Ontario enacted a Public Sector Compensation Restraint to Protect Public Services Act. which affected the health care sector by allowing for the privatization of health services. the Ontario government announced that it would "become more efficient by reducing the size of the Ontario Public Service by 5 percent over the next three years. Where government is providing funding to employers in the health and education sectors. the government indicated that when current collective agreements expire it would be seeking renewed agreements that imposed a two-year wage freeze.318 Chapter 11 Public Sector Labour Re lations were also facing deficits. unpaid days off. governments will have to be willing to bear a strike. and in situations where interest arbitration is the final dispute resolution mechanism. and successor rights." It appears that government moves to restrain public sector compensation will be politically acceptable. environmental factors will likely lead governments to seek reductions in labour costs. or the parties could develop other options such as early retirement plans that save money. T he demands might be supported by threats of contracting out or privatization. POLITI CAL AND SOC IAL EN V IRO NM ENT The political and social environments are interrelated and will be considered together. With few social programs left to slash expect them to directly attack unionized public sector wage bills. Some govenunents have enacted legislation and policies that are stated to be aimed at reforming or improving the public sector. This would involve demanding reductions in wages and benefits from the unions that govenunents negotiate with directly. One observer has summed up the political and social situation as follows: "Govenunents. • The third approach involves changing compensation and working conditions unilaterally through legislation. and job cuts across the country. Where employees have the right to strike. " 17 In sununary. governmems have three options: 18 • They can attempt to reduce labour costs through collective bargaining. Subsequently the jobs of 8000 Hospital Employee Union workers were contracted out to multinational service corporations. Alberta H ealth Services announced in October 2009 that it was imposing a two-year freeze on the compensation of management and non -union staff. In February 2010. Although this legislation did not directly affect union employees. In 2002. it will also be darkly popular. In 2009. share information. In the past. and attempt to resolve the issue. the NDP government in Manitoba warned public sector unions that they would have to accept a two-year wage freeze. To meet this objective. 2012. if not popular. faced with declining tax revenue and on the hook for so-called stimulus spending. the British Columbia Liberal government passed Bill 29. are already announcing plans to cut back. • A second approach is a cooperative one in which governments approach unions with the problem. the premier of Ontario said that public employees had been "sheltered" from the economic downturn. it is not guaranteed that . In this economic situation. Given the fact that almost everyone else in the country has already been whacked. The collective bargaining approach is slow and uncertain. there was talk of wage freezes. this has been done by passing legislation that imposes restrictions on compensation. or directly imposes the terms of a new agreement. eliminated no-contracting out language in collective agreements. which froze compensation of non-union employees for two years until March 31. Unions might agree to wage concessions in return for job security provisions. It will be mean and bloody minded. During 1991. .ca/ engila bour/la bour_law/i nd_rel/ index . 21 Given recent events in the public sector. said labourmanagement relations were poor. Swimmer observes that unions will have to come to terms with the new environment.96. and federal jurisdictions should refer to Public-Sector Labour Relations in an Era of Restraint and Restructuring edited by Gene Swinuner. The cooperative approach is no faster or surer. He notes that employers should consider the costs associated with rejecting the traditional collective bargaining model. one important question relating specifically to unions in the public sector will be referred to here. Has the unionization of public sector employees led to higher compensation in the public sector than in the private sector? Some members of the public apparently perceive that public sector employees are overpaid. Taking a "no concessions" position will encourage the government in taking unilateral action. the legislative approach is attractive to governments. He submits that it is in government's self-interest to return to the collective bargaining model instead of relying on legislation. It shows that from 1950 to 2007. because the Charter now protects collective bargaining. However. H oward Levitt refers to" . to eliminate job security provisions to allow downsizing. the successor government continued with the legislative approach. 2009.hrsdc. Sixty-two percent of labour leaders. For example. Gene Swinuner notes that although some governments that resorted to the legislative approach were nor re-elected. governments have relied more on legislation or the threat of legislation instead of the collective bargaining or cooperative approaches referred to. Accordingly. British Columbia. . He challenges goverrunents to think of employees as a source of value rather than a cost to be reduced. Readers interested in the Nova Scotia. Unless a government is willing to rely on the Charter's notwithstanding clause. there is little evidence that their handling of public sector labour relations was a factor in their defeat. However. Alberta. to impose wage cuts through days off without pay. PUBLI C SECTOR COMPENSATION The effects of unionization will be considered in Chapter 12. in a news item entitled "Voters Could Change Collective Agreements" published November 21. governments will have to ensure that they do not substantially interfere with the collective bargaining process.20 The details of developments in public sector labour relations in each province are beyond the scope of this book. A 2002 survey found that public sector managers and labour leaders have different perceptions about the state of labour-management relations. 31 federal statutes were passed to end or prevent a strike or lockout. or to intimidate unions into "negotiated" concessions.Chapter II Public Sector Labour Relations an arbitrator would award reduced compensation.shtml . and the prospects for the future. It is important to note that the governments that adopted the legislative approach were able to do so with om political penalty. 15 governments were in power in the 11 jurisdictions in Canada. as compared to only 28 percent of public sector managers.. " 22 Levitt recommends that candidates for municipal office be asked to clarify if they would " gut agreements" and that 319 Website w ith information regarding legislation ending strikes or lockouts: http. In jurisdictions where governments were replaced.//www. . Ontario. Manitoba.gc. Swimmer concludes that public sector labour relations have been permanently changed. the pessimistic view of labour leaders is not surprising. excessive wages and benefits of municipal employees. 19 T he website in the margin provides information on federal and provincial legislation preventing or ending strikes and lockouts. On the union side. In recent years.. and from 1959 to 2010 there were 105 provincial statutes. this will impose a constraint on the use of legislation to resolve disputes. including lost productivity. Eleven of these governments passed legislation to cancel collective bargaining by extending contracts. "T his eliminates the impact of a strike on the public. It was found that the cumulative wage increases gained by private sector employees were higher than the increases gained by public sector employees. effectively breaking it and ultimately compelling workers to accept management's terms. 3. public sector employers may need to reconsider an approach to labour relations that may harm the prospects for recruiting and retaining critical employees. If. Why are there restrictions on the issues that can be the subject of contract negotiations in the public sector? 6. 314 public sector. Outline the possible advamages and disadvantages of the three main methods of contract dispute resolution in the public sector. strike. How are public sector employers different from private sector employers? 4. The proponents of the designated strike contend that it meets public policy needs better than unrestricted strikes or interest arbitration.. Impli cations for Practice 1. and designated strike." It appears that claims that public sector employees are being paid "excessive wages" deserve scrutiny. tasks and responsibilities also conclude that public sector wages more often lag behind those in the private sector.320 Chapter 11 Public Sector Labour Re lations public sector employers take strikes using replacement workers. How are public sector employees and unions different from private sector employees and unions? 5. " 23 They have also examined wage increases in the public and private sectors between 1979 and 2007 in collective agreements covering more than 500 employees.. Consider the following employees: . Why were public sector employees not provided the right to unionize at the same time as employees in the private sector in most jurisdictions? 3. as some predict. 308 replication principle. In view of the willingness of some governments to legislate instead of negotiate outcomes. 2 ." Are these perceptions of the public sector accurate? Academics have noted that " Wage surveys comparing jobs similar in terms of qualifications. p. More governments may adopt the designated strike in the future. p. 313 Review Questions 1. p. union leaders have been advised by some to rethink "no concessions" policies. Discussion Questions 1.. Some observers are concerned with the state of labour relations in the public sector because of government reliance on legislation instead of negotiation. Thompson and Jalette conclude: "There is no support for the contention that unionized public sector wage settlements have outstripped those in the private sector since 1979. What is the importance of the public sector? 2. T hree key methods to resolve contract disputes in the public sector are interest arbitration. Based on their research. Key Terms designated or controlled strike. indeed the reverse appears true. there is a corning labour shortage for some critical occupations. the company opera tes several ferries cross ing waterways.Chapter I I Public Secror Labour Relations 32 1 clerical staff at Revenue Can ada. (9) A designation mad e under thi s section may be amend ed. The only gas stations and grocery store serving the community are also located on the east side. and in the event of an . In add ition to cl earing debris i n the summer. prov ide or maintain in full measure t hose faci li ties. prod ucti ons and services that the board considers necessary or essential to prevent immediate and serious danger to the health. One of the ferries operated by Roadway crosses a river at Beautytown. Residents can walk along trails and cross the river using a rai lway bridge near the center of town. seven days a week. varied o r revoked and another made in its place. and teachers. the c hair may. (3) When the minister makes a direction under subsection (2) the associate chair of the Mediation D ivision may appoint one or more mediators to assist the parties to reach an agreement on essential services designations. ••• Normally the ferry service operates 6:30A. the employer and the trade unio n must supply. and ploughing snow i n the wi nter. Which meth od of dispute resol ution w o uld be preferred by the union an d by the empl o yer ? 2. or (b) on the minister's own initiative considers that a d ispute poses a threat to the health.M. the company and the union entered into an essential services agreement in M arch 2010 that provided that if there was a strike the ferry would operate from 6:30 to 9:30A. (b) report the res ul ts of the investigat ion to t he minister. Is there m ore collaboration between em p loyers and unions i n rhe public or rhe private sector? D eren nine if t here is a ny commenta ry on rhe Web on this i ssue. or welfare of the res idents of British Co lumbia. Most of the municipality is located on the east side of the river. weekdays. There are two alternative routes to the ferry. Prior to the expiry of the coll ective agreement. on the chair's own motion or on applicatio n by either of the parties to the dispute. Do y ou think t hat reachers sho ul d have rhe righ t t o strik e? 3 . Ro adway Services Roadway Serv ices maintains highways in British Columbia pursuant to a contract w ith the M ini stry of Transpo rtation . t he mi ni ster may d irect the boa rd to designate as essential services those facil ities. police. producti ons and serv ices as essential serv ices. safety. Are ther e any reasons why l abo ur relatio ns would the p ublic sector as opposed ro rhe pr ivate sect or ? be m or e confrontatio nal in Web Research 1. Approximately 500 residents of the town I ive on the west side of the river. or they can drive one hour along the river one way to another ferry and then d rive back alo ng the other side. and fire services are headquartered on the east side. D et erm ine if t here is any commenta r y on rhe Web on t eacher collect ive bargaining for you r province. (a) investigate w hether or no t the d ispute poses a threat to (i) the health. Roadway employees are represented by a union. The relevant portions of the Labour Relations Code provides as follows: Essential serv ices 72 (1) If a d ispute ari ses after collective bargaining has commenced. 2 . safety or welfare of the residents of British Columbia. and the town's medical. air t r affic cont rollers.M. productions and services and mu st not restrict or limit a facility. prod uctio n or service so designated. to 10:30 P. •• • (8) If the board designates facil ities.M.M. safety or welfare of the residents of British Co lumbia. (2) If the mini ster (a) after receiving a report of the chair respecting a d ispute. and from 2:30 to 5:30P. Several farmers on the west side w ho normal ly use the ferry to transport produce were concerned that they had been forced to take the alternative road route. and employees had to be tracked down to o perate the ferry. Explain w hat you thi nk the Board's decision should be. and 1:00 to 2:00 P. On june 28. in july and August. Outline the argument that the employer w ill make before the Labour Relations Board. . there were on average five cars lined up on each side. the operatio n of the ferry was suspended because of high water. A strike started on April 16. At the end of the hours of operatio n provided in the essential services agreement. In the school yea r. Outline the response the unio n would make to the employer's request for a return to normal hours of operation. and the ferry operated pursuant to the essential services agreement until june. For three weeks in the month of june.M.322 Chapter II Public Sector Labour Relations emergency an additiona l cross ing would be arranged. Questions 1. There had also been an incident w hen an ambu lance was delayed cross ing w hen the ferry was not operating because there is no cellular phone serv ice in the area. 3. The employer opposed the reduction in hours and made a counter appli catio n requesting that the service hours be restored to normal hours of operation. at the end of the school yea r. A pregnant woman w ho required medical attention had walked across the railway bridge. The union's application also provided that the hours of operatio n be restored to those prov ided in the original essential services agreement w hen the new school year started. claiming that during the summer school break the service should be redu ced .M. Many res idents on the west side were using the railway bridge and wheelbarrows to obtain groceries. In july and August. the union f iled an appl icatio n w ith the Labour Relations Board to reduce the level of serv ice provided by the ferry. there are two large buses and three small buses using the ferry making round trips each day. there would be o nly one school bus making a round trip each day. 2010. The employer based its application o n complaints it had received during the operation of the essential services agreement and a few specific incidents. 2. The union proposed that the hours of operation be redu ced to 7:45 to 8:45A. 100-102 6. unionism can be a significant pitts to enterprise efficiency.If management uses the collective bargaining process to learn abottt and improve the operation of the workplace and the production process.98.98. 101 7 . Outline the implications of unionization for employees 96. 100. 100-102. Describe barriers to increased employee involvement 96. Identify alternative forms of employee involvement 96. On the other hand.98. Identify the factors affecting a transition to more collaborative labour relations 96. Identify the features of job control unionism 96. Outline factors affecting the future of unions 96.Richard Freeman and James Medoff Explain the effects of unionization on union and non-union employers 2.100-102 5 . if mat~agement responds negatively to collective bargaining (or is prevented by unions from reacting positively) unionism can significantly harm the performance of the firm. 100-102 3. 1 .102 4. 1 . and the distribution of income in society. Canadian Forest Products Ltd. the papers referred to in the series. at the employer's expense. U nions affect the level and structure of employee compensation. it has recently been described as " . The employer may provide benefits to employees superior to those outlined in the collective agreement (lump su m bonuses). "What Do Unions Do: A 20-Year Perspective. Manufacturing. Air Canada and the CAW have introduced a vacation purchase program for custome r service e mployees. The Calgary Public Library and the Canad ian Union of Public Employees expanded a skills training program for librarians and office employees.324 Chapter 12 Summary and Future of Labour Relations A review of recent collective agreements reveals interesting developments in labour relations. which is to be provided du ring regula r shifts where possible. be given sufficient training to acquire new skills. EFFECTS OF UNIONIZATION T he unionization of approximately 30 percent of Canadian employees affects all employers and employees. Employees will be able to buy one or two additional weeks of vacation through payroll deduction. A consultations process will gather comments and suggestions to encourage the use of alternative methods of transportation. at the rate of 2." T he papers reviewed the work of Freemen and Medoff and considered whether their findings held up. and return to the question posed in Chapter 1 regarding confrontation versus collaboration. the Journal of Labor Research published a series of 2 1 papers ent itled.. . have agreed to an employee investment plan. " 3 In 2004.05. All ied Industri al and Service Workers International Union. In this chapter. There is a maximum of six months of training. profitability. such as carpooling. The schedule for repayment is based on the company's financial results. . and depression. Energy. . and their reference material are recommended to readers who wish to explore the effect of unions in greater depth . some of which involve collaboration between employers and unions. there is a debate about t he effects of unions on productivity. in British Columbia.0 percent annual non-pensionable premium for nurses with 25 years of service. productivity. For example. if the employer determines that it is unable torecruit employees. The Government of Newfou ndland and Labrador and the Newfoundland a nd Labrador Nurses' Union have agreed to a conditional market adjustment provision. and salaries will be protected for a 12-month period if the employee is eventually re-classified. anyone interested in labor unions needs to read . The Pri nee Edward Island Department of Health and the Prince Edward Island Nurses' Union have established a retention program. The plan provides that employees will invest a percentage of their vacatio n and hol iday pay into company operations to upgrade equipment and improve sawmill efficiencies. employment levels. Montreal Airports and the Public Service Alliance of Canada have created a committee to investigate transportation issues related to the Montreal head office moving to Dorval. harassment. Paper and Forestry. Employees will not suffer a reduction in salary during the training period. Knowledge and thinking relating to the effects of unions have been dramatically affected by t he work of Freemen and Medoff. . and the United Steel. The plan provides for a 3. we will consider the overall effects of unionization. with the additional vacation awarded by seniority. a true classic . .0 percent of basic salary per additional week. the possibility of increased employee and union involvement in the workplace. . the most famous book in labor economics and industrial relatio ns . . NAV CANADA and the CAW have established a committee to develop recomme ndations for a Women's Advocate Program to provide confidential support and referral services for victims of domestic or workplace violence. . If technological changes are introduced which requi re new o r greater skills. affected e mployees can apply for a transfer or. who studied unions and produced What Do Unions Do?2 Al though What D o Unions Do? was published in 1984 . Rubber. Some of t he effects of unions are conrentious. T he original w ork. and definitive con clusions cannot be drawn. Quebec. 6 It has been suggested that the decline in the union wage premium has been caused by increased competitive pressure that has forced employers to reduce compensation costs. It is argued that because union employers tend to pay higher wages. 5 Studies in the U.S." associated with the representation of employees that could lead to improvements. recent evidence suggests that the tulion wage premium has declined. and less disruption of the workforce. however. and a largely positive " voice face. employment. T he adoption of a compensation package that meets the needs of employees will provide more satisfaction per dollar.4 However. Perhaps the most interesting and contentious conclusion reached by Freeman and Medoff was that unions had a positive impact overall and labour policy in the United States should be changed to encourage an increase in union density. H igher union wages might shock or force employers to adopt more efficient methods including better technology. In this situation. there is a limit on wage increases because the employer must remain competitive. investment. perhaps because dissatisfied workers stay and attempt ro improve their situation through the union instead of quitting. T he employment security provided to senior employees in unionized firms may reduce rivalry between employees and lead to more informal training and assistance. T he voice effect could improve communication with employees and might lead to higher productivity by reducing turnover. productivity. it was not tuliform.Chapter I 2 Summary and Future of Labour Relations Freeman and Medoff made a distinction between two aspects or faces of unionism. COM PEN SATI O N Union Wage Effect Numerous studies have examined the question of how much unions increase the wages of unionized employees above the wages of non-union employees.4 percent. At one time the union wage impact was estimated to range from 10 to 25 percent. Unions have a largely negative "monopoly face. and management practices. there is less potential for the union to increase wages. If the employer sells its product or service in a competitive market.S. there has been a decline in the union wage premium in that country. Employers may be forced to establish more efficient job standards and increase management accountability because of higher labour costs. have found that the muon wage premium has declined from the 1970s to 2001. We will consider the effects of unions on compensation." associated with their power to raise wages above competitive levels. and the extent to wllich higher wages are due to union representation. Utlion firms have lower turnover. A recent U. Freeman and Medoff contended that both the monopoly face and the voice face might lead to improvements in productivity. it is difficult to determine the extent to which higher wages are being paid for additional skills and experience. It is difficult to measure this impact because of possible differences in the quality of labour in the union and non-union sectors. The factors that would increase the union's bargaining power were referred to in Chapter 8. Accordingly. When the employer has market power and . Lower turnover is associated with reduced hiring and training costs. Lower turnover might encourage investment in training. profitability. The voice of employees expressed through unions might lead to increases in efficiency and more effective compensation packages. A study in the 1990s conducted by Stephane Renaud found that the overall union wage premium in Canada was 10. The decline was more significant in some industries and for women? The ability of the union to increase wages will depend upon the union's bargaining power and the employer's situation in the market. although tllis may also reduce employment. they are able to hire more skilled and experienced employees. study found that over the last two decades. such as profit sharing. gender. One explanation for the smaller impact on wages in larger firms is that unions may be more likely ro try organizing larger non-union firms.the output per worker. 8 One explanation provided for this is that unions are a voice for the average worker. occupation. Female employees have gained more from unionization than males. and merit pay. T he average worker is more likely to be older and have a family.4 percent. the union's ability to obtain wage improvements increases because the wage improvements may come from the firm's cost savings instead of price increases. it was only 3 . however. Unions may lead to higher wages for some non-union employees because of a threat effect . Th e cr owding effect is a downward pressure on non-union wages caused by an increased supp ly of labour in the non-union sector. stock ownership plans. including the industry. skill level of employees. This refers to the fact that higher wages in the unionized sector lead ro a reduction of employment in that sector. T here is a significant variation based on the location of employees.has been the topic of a great deal of debate. In firms that employed 19 or fewer employees. Employees at lower skill levels gain more from unionization than higher-skilled employees. If the employer has cost advantages over its competitors. Although some of this may be accounted for by the industry involved. and a resulting increase in the supply of labour in the non -union sector. however. Unions are generally opposed to individual pay incentives. such firms may have increased wages as part of a union avoidance strategy.9 percent in firms with 500 or more employees. it is argued that there is a crowding effect that may reduce wages in the non-union sector. Some non -union employers may increase wages to avoid unionization.326 Chapter 12 Summary and Future of Labour Relations can increase prices. T he overall effect of unions on the wage level of non-union employees is not clear.5 percent in Ontario to 16. and the size of the firm. the overall result of which is a compression of the wage structure. T he same study showed a significant variation based on the size of the firm. discussed below. they are less opposed to group incentives based on measurable criteria.6 percent for public administration employees. the wage differential ranged from 7. Conversely. its ability ro pass along wage increases in the form of higher prices increases the possibility of the union increasing wages. The effect on productivity must be distinguished from the effect on profitability.5 percent for non-public administration employees and a differential of only 3. It has also been suggested that benefits are a form of deferred compensation. to avoid this threat. the wage differential was 28. Freeman and Medoff found that generally unions increased productivity largely because of the voice effect referred to above. T he Renaud study showed that there was a union wage differential of 11. and employers may see benefits as a way to encourage employee interest in the continued success of the firm. The union wage impact varies according to a number of factors.6 percent in the Prairies. PR O DU CTI V IT Y T he effect of unions on productivity. Union Effect on Benefits Unions raise benefit levels more than they raise wages. Effect on Non-Union Wages The thr eat effect is an upward pressure on non-uni on wages caused by the possi bility that employees may unio ni ze. Subsequent . The increased supply of labour in the non-union sector might reduce the wages of non-union employees. Variable Pay a nd Incentive Systems Unions reduce the likelihood of variable pay plans. There is a larger union premium for blue-collar employees than white-collar employees. which makes benefits more attractive. found that the effect of unionization on investment varied according to the union density in the industry. 15 When the union density was less than 50 percent. In the public sector. however. product quality. if a union causes wages ro be increased to $15 per hout. This situation has been described as follows: "To date. . Some observers suggest that unions promote an adversarial relationship. For every study that finds a positive impact another finds a negative impact. there is evidence that unions have an overall negative effect on investment by employers. and a positive relationship to increased productivity. and customer satisfaction. The effect of unions on profitability may be a factor in employer opposition to unions. the evidence is too mixed to assign a clear grade. there was a negative effect on investment. A study in British workplaces found that management's response to worker voice practices was a critical factor affecting productivity. A poor relationship may well lead to reduced productivity. it still points ro the possibility that productivity gains could be obtained if management's response to employees was improved. howevet. 13 It was found that the managerial responsiveness ro worker voice affected the amou nt of the productivity improvement in non-union workplaces. a labour-saving capital investment might not be efficient. 14 Unions apparently shift some profits from shareholders to employees. At least one study has found that workplaces with more grievances. This may be due to the fact that employers would prefer to invest in non-union operations." 10 T he labour-management climate or relationship is a major factor affecting the productivity issue. They may reduce productivity by imposing work rules that reduce efficiency. For example. Although the study referred to was qualitative (based on perceptions of productivity instead of quantitative data).. It was found that a positive labour-management climate was associated with perceptions of favourable organization performance. which reduces productivity.Chapter I 2 Summary and Future of Labour Relations studies examining various industries in the private sector have had mi. Gunderson has found that" . productivity could be reduced. the same investment may now have ro be made. " 9 Unions may reduce the productivity of each dollar spent on labour by artificially increasing the price of labour. PROFITABILITY On average. have lower productivity. IN VESTMENT Although some employers may increase investment to substitute capital for )about. if non-union wages are $12 per hour. . once unions have organized most of the industry. T his relationship was not found in unionized workplaces. Studies have found that unionization leads to a drop in share values. 12 Further research is needed to determine if a positive labour relations climate leads to improved financial results. (Regarding) the effect of publicsector unions on productivity. the empirical score is about even. there was a small positive effect. which suggest a poor union-management relationship. unionized firms have lower profitability. and clear conclusions on the net impact are wanting. One study. If the application of seniority rules results in job vacancies being filled by employees who have less ability. 11 A Canadian study surveyed management and unions to determine the relationship between the labour-management climate and perceptions of organizational performance including productivity. It has been argued that unions lead to inefficiencies because they cause employers to invest more than the optimum amount in capital. which considered investment in Canadian manufacturing. when it increased to over 50 percent. unionization is no longer a deterrent to investment.xed results. consultant.S. A U. employment is an issue some unions are able to negotiate. EM PLOYER RE C RUITING AND SELECTION PRACTICES Except for the limited case of a closed shop. providing comments on A n Empirical Assessment of the Employee Free Cho ice Act: The Economic Implications: http://www. T he reduced recruiting effort might mean cost savings for unionized firms.ssrn. TRAINING Studies have found that spending on training is higher in unionized firms.S. has used Canadian data to argue that an increase in unionization following the passage of the EFCA would cause job losses. and they used newspaper ads and company recruiters less than non-union firms. Numerous Canadian academics have criticized Lynne-Farrar's methodology and results. including tra ining interviewers. employers will be encouraged to engage in more extensive use of screening devices such as skill and aptitude tests. Unionized employers are often requ ired to post jobs internally. The margin notes refer the Lynne-Farrar report and a series of papers by Canadian academics commenting on the advisability of the U. . Because unions raise wages and reduce turnover. study that contrasted the recruiting methods and selection procedures used by union and non-union firms found a link between the recruiting effort and selection methods used and unionization.S. the results were not as definitive. One of the reasons for this may be the "shock" effect on management caused by increased compensation. Employers should take steps to reduce such errors. 17 Un ionized firms were fow1d to use fewer recruiting sources. The Canadian academics reach the conclusion that " . losses by bargaining for restrictions on plant closings and requiring additional employer investment to keep plants operating. unionized employers may not have to engage in as much recruiting as non-union employers. in the Canadian case there is no consistent empirical evidence that Canada's more extensive union ization has affected employment or unemployment either way. passing the EFCA and reviewing the effects of unionization in Canada on employment.conjlso/3/papers. It has also been suggested that because unions make it more difficult for employers to terminate poor performers.328 Chapter 12 Summary and Future of Labour Relations EM PLO YM ENT Websi te w ith A n Empirical Assessment of the Employee Free Cho ice Act: The Economic Implications: http://papers. and more extensive use of testing. Unions also had an effect on the selection procedures." At the level of the firm.S. studies have found slower employment growth in unionized firms. However.. Anne Lynne-Farrar. where the arbitration procedure makes it more difficult for the employer to terminate an employee.. 16 As of this writing. however. levels and other outcomes. unions may have an indirect effect on recruiting and selection. This legislation would implement.php?page=toc&volume= l5 U. especially in the public sector where there could be collective agreement provisions relating to professional development. unions do not play a direct role in hiring. yorku. unions have been able to avoid or at least delay some employment. and a higher percentage of unionized employees were hired using aptitude and skills testing in some of the data sets used in the study.S. the U. cfm?abstract_id= l353305 Website for just Labour. In the auto industry. changes that should lead to union growth.18 Training could also be an issue that is raised in contract negotiations. certification based on membership cards and first contract arbitration. Employers should be aware that making a mistake in the selection process might have more important consequences in the unionized sector. More selection tools were used to select employees in unionized firms. Senate is considering the Employee Free Choice Act (EFCA). A U.ca/ index.justlabour. especia lly in discipline situations 9. which was satisfactory at a time when most jobs were narrowly defined. Standard wages across an industry that are not I inked to firm perfo rmance 4 . contracting out. A distrust of teams because they may involve peer pressure on workers and weaken the role of the union. OVERVIEW OF TRADITIONAL LABOUR RELATIONS In order to understand the magnitude and significance of the possible changes referred to later in this chapter. Job control unionism emphasizes protection of jobs by controlling management and entails an adversarial relationship. and subject to close supervision.Chapter I 2 329 Summary and Future of Labour Relations MANAGERIAL CONTROL AND DECISION MAKING Previous chapters covering collective agreement terms and the administration of the agreement have outlined how unionization might affect management control of the workplace. Communication w ith management through the union 8. the skills required were obtained on the job. Distrust of employee involvement 3. The collective agreements and approach of unions that developed on the basis ofTayloristic principles have been referred to as job control Wlionism. whose work at the start of the 1900s emphasized increasing efficiency by finding the best ways to do work. and increasing effici ency thro ugh specialization . Job control unionism includes the features listed in Key Considerations 12-1. introduce technological change. make workplace rules. A hi gh number of job grades 7. and formal rules regarding advancement. lay off employees. Seniority as the basis for allocation of jobs 2. Recall that management's ability to contract out. Jobs would be broken down into their simplest components with extensive repetition. slow to change. The collective agreements negotiated after the 1940s contained rules regarding hours. -~ \ Considerations 12-1 Features of job Control Unionism 1. It was the responsibility of managers to plan the best methods of work. and terminate employees might all be constrained by provisions in the collective agreement. which had only a few points of entry. and it was the role of workers to follow management instructions. and seniority provisions. Collective agreements established job classifications reflecting the breakdown between jobs. They might be viewed as entrenching or codifying what are called Tayloristic work principles. the father of scientific management. Emphasis on the grievance system as opposed to other forms of communi catio n w ith management 5. and movements within and across job classifications were subject to seniority rules. fill job vacancies. These job classifications and rules established an internal labour market. Taylor also advocated an improved climate of cooperation between workers and managers. 19 Tayloristic work principles incl ude the separation of management and work activities. and higher wages for increased output. limits on management rights. In this market. Narrow job definitions 6. Unions protecting jobs by limiting management authority . One of Taylor's principles was that there should be a separation of managemenr and employee roles. after Frederick Taylor. overtime. transfers. Pay tied to jobs as opposed to pay for knowledge 10. let us review the features of the traditional labour rela tions system that developed after Privy Council Order 1003 in 1944. The following description relies hea vily on the work of Ani! Verma and Richard Chaykowski in Contract and Commitment: Employment Relations in the New Economy. Some may be forced to adopt employee participation because of a crisis caused by a loss of business or some other external shock. which typically occurred every two or three years. some of the features of this system are viewed as being a mjsmatch with the realities of a world with increasing environmental challenges. joint employee-management committees. Management appeared comfortable with developing distinctions by way of symbols such as separate parking. CHANGING LABOUR RELATIONS AND EMPlOYEE INVOlVEMENT As mentioned in Chapter 2. T he admjnistration of the contract limjted any changes in the rules governing the workplace that might be required to adapt to a changing environment. sometimes called joint governance or strategic alliance. O thers may have adopted it in order to copy what is viewed as the best practice of other employers. Employee involvement may be adopted in conjunction with other workplace changes such as job sharing. and variable pay. Co-determination. Some have attempted to move towards a high-performance organization that includes employee involvement. washrooms. Employee involvement. employee problemsolving groups. T he system also involved a distinction between contract admjnjstration and contract negotiation. which will have a positive impact on retention and recruiting. employee work teams. Both sides supported the division between labour and management that developed. The change or development process was left to contract negotiations. increased training. T he traditional system has been criticized for the lack of union-management cooperation needed to respond to rapid change. and other status symbols. and increase productivity and quality. increase motivation. which are referred to below. new technology. and increased competition are forcing employers to change methods of operation. raises special concerns regarding the role of the union. or the high-commitment organization. and in some campaigns unions portrayed employers as exploiting employees. and co-determination. Employers may pursue these new approaches to utilize employee knowledge and expertise. Some employers may adopt changes such as employee involvement in order to increase employee satisfaction. However. and job rotation. Problem-sol ving groups are teams of employees that consider issues and make recommendations to management. employee participation. which frequently led to labour disputes.330 Chapter 12 Summary and Future of Labour Relations The traditional system involved an adversarial relationship between the union and the employer. In organjzing campaigns. Some have argued that the traditional system worked satisfactorily at a time when many markets were protected and the enviromnent was stable. Quality circles are groups of employees who investigate problems relating to quality and make recommendations to management for improvements. reduce costs. and ritualistic distributive bargainjng. FORMS OF EMPLOYEE INVOLVEMENT Quality circles are groups of employees who investigate problems relating to quality and make recommendations to management for improvements. In some cases. changes in the enviromnent such as globalization. Problem-solving groups are teams of employees who meet to deal with particular issues such as the . flexible jobs. also called worker participation. employee participation has been adopted as part of a program to deal with a deteriorating labour-management relationship. employee attitude surveys. includes a range of possible measures to increase employee input into business operations: quality circles. unions emphasized that employees have different interests from management. and the union plays a role in day-to-day business decisions. employee-management committees include representatives of both management and employees charged with the responsibility of making recommendations to the employer.22 L·uer. T he FFA outlines a new role for the union through an Employee Relations Review Committee (ERR C). One is a joint team production model that includes worker empowerment and the use of self-managed teams. a local of the United Auto Workers at a GM Saturn plant established the Saturn Partnership Agreement with General Motors. T he agreement contained four key provisions: (1) the workforce would be organized into self-directed work teams. Chapte r I 2 Self-directed teams o r selfmanaging work teams are groups of employees that take on functions previously performed by management. record keeping. Problem-solving teams make recommendations to management.. (2) decisions would be made through a consensus process. because of problems within the union. The Framework of Fairness Agreement between Magna and the CAW contains an element of co-determination. and (4) the organization would be governed by joint labour-management committees at all levels--corporate. budgeting. supplier and retail selection. (3) the union would be a full partner in all business decisions. and work scheduling. and joint presentations to. they take on tasks formerly undertaken by management. T he agreement provides that the conunittee " . The parties used interest-based bargaining to negotiate a collective agreement that committed the parties to cooperation. applicable government representatives on matters of importance to the Canadian automotive industry. Co-determination is rare in Canada and the United States. business unit. and department. Two brief examples will clarify this concept and its significance. In a subsequent collective agreement.. Website for the Employee Involvement Associatio n: www. Typically. work teams at Petro-Canada have taken on the tasks of tracking and distributing their own overtime. Co-determination is a system in w hich management shares decision-making authority w ith the union. For example.org .. T hrough this mechanism. Although it remains to be seen how much the union will actually be able to influence management decisions. training.Motors abandoning the Saturn brand." The agreement lists a number of collaborative goals and projects for the committee including working jointly to promote new investment and production opportunities. The union also had representation on labour-management conunittees that determined business strategy. This model is typically developed and implemented with collaboration between unions and management. will discuss . work planning. the agreement sets out a new role for the union.. The second is a lean production Employee-m anagement committees are o ngoing groups made up of management and employee representatives w ho advise management. Teams belonged to departments that were managed jointly by two department advisers. The ERRC consists of three company and three union representatives. the parties reverted to a traditional relationship. the union played a role in day-to-day operations. In the United States. and manufacturing policy. health and safety. technology and the general state of labour relations. Self-directed or self-managing work teams are distinctive because they have more autonomy and responsibility. they do not have the authority to implement their recommendations. A health and safety committee is an example. the Communications. top-level issues related to investment. As the name indicates. job assignments. quality. and at least 14 joint conunittees were established. Energy and Paperworkers Union and the employer established a labour-management partnership in 1991. and dialogue with. At Saskatoon Chemicals. and gainsharing. production. prior to General . manufacturing. absenteeism.eianet. half of whom were representatives from the union and half were General Motors managers. 21 Teams were responsible for employee selection.20 Co-detennination refers to a system in which management shares decision-making authority with the union. It has been suggested that there are two contrasting models of employee involvement. pay for skill. employment. the parties agreed on a system for work redesign.Summary and Future of Labour Relations 331 installation of a new computer system. The parties agreed to engage in continuous bargaining. however. as in the case of a problem-solving group established for one particular task. which increase stress on employees. Some unions have been more receptive to employee involvement programs than others. 24 A few union leaders believe that increases in efficiency and productivity will only benefit management. Some employee involvement initiatives may be temporary. Chaykowski fou nd that their influence was considerable. using groups with a narrower focus. and the term has been used (or misused). they are consultative bodies that make recommendations to management. T hey allege that management will use employee involvement to have employees work themselves out of a job. T here is also considerable variation regarding the amount of authority given to employees. and others work within the existing structure. They allege that teams lead to peer pressure and short-staffing. 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. These committees comprise equal numbers of management and union representatives. T he joint compensation wage study committee has a mandate to determine job descriptions and rates of pay. They view "working smarter" as a means to get employees to work harder. IM PLI CATION$ OF EM PLOYEE INVOLV EM ENT T he various forms of employee involvement vary on a number of dimensions. Collective agreements between Inco and the United Steelworkers of America have established committees regarding compensation. Quality circles do not involve a change in workplace organization. It should be noted that employee involvement is not one-dimensional. T hose who think there is a fundamental conflict between the interests of the employee and the employer are more likely to oppose such programs. The joint team production model involves the delegation of some decision-making authority to employee teams. and management retains sole decisionmaking authority. The lean production model involves only consultation with employees.332 Chapter 12 Summary and Future of Labour Relations model that is more management directed.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. training. and others may be permanent. . Some initiatives involve changes in the organization of the workplace. to cover a range of measures. but self-directed work teams do. Because employee involvement programs seek to have . After reviewing the activities of these committees. and the environment. employment security. The reasons for unions' possible support or opposition are referred to in Key Considerations 12-2.23 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. aimed at improving quality and productivity. Generally. Some union leaders view employee involvement as a management attempt to increase the pace of work so that more output can be obtained for the same wage. 3. Employees benefit from training. some union leaders view aspects of employee involvement as manipulation. In other words. Employee involvement increases effic iency and productivity and results in job losses. A union leader described the situation as follows: " Before. 3. Employee involvement programs have limited scope. it appears that participants have identified more closely with employer goals and some programs have been part of a strategy to eliminate the union. Programs have included training in language skiUs and computers. employees observed that tra ining in English allowed them to talk to the friends of their children for the first time. In the United States. T here is recognition that Tayloristic approaches to the workplace reduce output. 4 . s. the increases in job skiUs can be the basis for higher job classifications ( '\_ . N ow. at Weston Bakeries employees were trained and expected to solve workplace problems on their own as part of an employee involvement program. you waited for the foreman. 4 . union leaders fear that employees may develop a greater attachment to the employer's goals and objectives than those of the union. 2. Employee involvement is an employer tactic to avoid unio n representation . you're autonomous and you can make a decision.)€titi veness. Union observations of what has occurred in the United States may be a reason for this view. you are responsible. employees adopt company goals. when their objective is to take someth ing away from employees. Employee involvement increases job satisfaction . they will be better off if they get involved so that they have an opportunity to protect employee interests.'\]so. participants have tended to be individuals who are not support ive of the union . In one case. Employee involvement is a management tactic to increase the pace oi work.Chapte r I 2 Summary and Future of Labour Relations 333 Considerations 12-2 Possible Union Views Regarding Employee Involvement Reasons for Union Opposition Reasons for Union Support 1. Some union leaders believe that if change is to be undertaken. 1. Some view increased efficiency and competitiveness that may flow from employee involvement as a way to improve job security. For example. Some union leaders have questioned the scope of employee involvement programs. In some cases. Employee involvement can include increased training and skill development that leads to higher job classificatio ns. Employee involvement is a management tactic to eliminate unions. . instead of empowerment. Given that change is being made. which is not beneficial to employee interests. Involvement increases effic iency and com. pointing out that employers do not allow unions or employees to become involved in strategic decision-making questions such as investment. 5." 25 Employee involvement often involves training. w hich improves job security. This may have benefits for employees outside of the workplace. when a conveyor belt stopped. 2. They allege that employers turn to employee involvement programs only in a time of crisis. in companies that have adopted voluntary employee involvement programs withou t participation of the union. which may benefit employees. the union is better off being involved. It was found that the program violated the Code because it "could only undermine the union in the eyes of its members and have an adverse effect both on the administration of the trade union and its representation as the exclusive bargaining agent of unionized employees. and the employer was ordered to discontinue the program. Teams of managers and employees studied ways to reduce costs and improve the quality of various services provided by the employer. In sununary. people are rotating activities. Second. If a union directed employees to boycott an employer initiative. With better training. T he employer claimed that this refusal amounted to an illegal work stoppage. For example. Employers are allowed to communicate with employees where the subject matter of the conununication is an item that the collective agreement leaves to management's discretion. Some employees may benefit from a reduction in boring and mundane work. the employer can obtain input directly from employees without violating the union's exclusive bargaining rights. an employee involvement program cannot relate to matters covered by the collective agreement. In the case referred to. the employer might also pursue a remedy with the Labour Relations Board. First. In one case. questions regarding the legality of such programs and union opposition may arise. T he union filed a complaint with the Canada Industrial Relations Board. because the employer's evidence on the issue was inadequate and a cease-and-desist order was granted. unions cannot engage in a stoppage of work that would amount to an illegal strike. and unions must not prohibit employees from becoming involved in employer programs if the refusal amounts to an illegal strike. the union is the exclusive bargaining agent of employees. a program that solicited employee views regarding compensation or working conditions might be in violation of labour rela tions legislation. T here are two key points here. In one case. a municipality established a continuous improvement program with employee participation but without union involvement. 28 An arbitrator in this situation might award damages to the employer. which was upheld. because the boycott might be an illegal strike. . the CBC developed an "Opportunities for Change" program without union involvement. and most do not. Programs undertaken without union involvement have led to union complaints of unfair labour practices. the union directed employees to refuse to participate. Subsequently. If the collective agreement does not refer to methods of operation. and filed a grievance. The program solicited employee input on job categories and processes for complaint resolution. This is iUustrated by the foUowing quote from a union local president: "CAW members' jobs here are no longer as boring or mundane-that kind of work is disappearing. the arbitrator did not award damages.334 Chapter 12 Summary and Future of Labour Relations and increases in wages. " 27 If the union encourages employees to boycott an employee involvement program. Conversely. such action might be viewed as an illegal strike in violation of the collective agreement and labour relations legislation. " 26 EMPLOYER FREEDOM OF ACTION AND UNION REA CTION Where the employer implements an employee involvement program without the involvement of the union. The arbitrator held that the call for a boycott by the union was an illegal strike in violation of the collective agreement. employers must ensure that an employee involvement program un dertaken without union involvemenr does not violate the exclusive bargaining rights of the union. increasing job satisfaction. In the goods producing sector self-directed teams had the larger effect. Illustrating the complexity of employee involvement. It appears that employee involvement programs are difficult to maintain over time. 46.edu/ wpapers/pdf/71 . Most studies do show increased productivity. Some studies have indicated that the chances of productivity improving are increased if the union is involved. It was found that the death rate for employee involvement practices was significant: 35.berkeley. Researchers found that employee involvemenr programs could succeed without strict formal job guarantees if workers perceived that managemenr was doing their best to secure jobs. 29 Studies indicate a small increase in employee satisfaction where employee involvement programs have been undertaken. Also. the chances of success in an employee involvement program are increased when concerns over job security are reduced. Although it appears logical that employee involvement programs would improve productivity. and workplace conflict. that has not always been confirmed by research. Let us turn to the question of what might be done to improve their chances of success in unionized workplaces.1 percent of quality circle programs did not survive for three years. I M PLE M ENTI N G A N EM PLOY EE I NVO LV EM ENT PR OG RAM Employer Perspective Employers should think twice before adopting an employee involvemenr program without the union's participation.Chapter I 2 Summary and Future of Labour Relations 335 O UTCOM ES O F EM PL OY EE IN VO LV EM ENT Studies have examined the effects of employee involvement programs on productivity. 31 H owever. One study examined the survival of employee involvement work practices over a three-year period. the type of employee involvement that led to reduced conflict varied by industrial sector. one study has found that workers' expectations about job security have changed and they no longer expect unconditional job security.pdf .32 We have seen that employee involvement programs do not guarantee improved performance and may not be suitable for all workplaces.30 A study has confirmed that employee involvement programs reduce conflict in the workplace as measured by the grievance rate. 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. but there is significant variation in the outcomes and a few studies have found no improvement. It might avert a legal challenge to the program or allegations of unfair labour practices referred to above. However. The issue of job security has been a concern for the success of employee involvement programs.8 percent of joint employee-management programs.the union can perform a watchdog role. The author concluded that high-involvement work practices are fragile and do not often last very long.2 percent of problem-solving groups. 33 T he union's involvement may also protect employee interests so that success of the program is more likely. it runs the risk of union supporters not taking part. employee satisfaction. if management attempts to avoid union participation. Website w ith study regarding employment involvement and prod uctivity: www. It has been suggested that employers would have to make formal guarantees of job security in order for a program to succeed. and 59. there can be advantages to union involvement .34 In any event.iir. whereas in the service sector problem-solving groups had a greater effect. Although union participation may require a trade-off providing for job security. gc. 35 If unions do not become involved in employee involvement programs.Jabour. and they increase the chances that employers will use the program to influence employees against the union. In many union -management relationships. Even if the parties improve their relationship.336 Chapter 12 Summary and Future of Labour Relations Union Perspective Union concerns that employee involvement programs will cause employees to identify more closely with management objectives assume that employee loyalty is to either the union or the employer. History and adversarial relationship between the parties 3. 36 Barriers to Employee Involvement Key Considerations 12-3 lists some barriers in the way of the adoption of employee involvement programs in unionized workplaces. meaningful involvement does. the attitudes and beliefs of leaders on both sides may still pose a problem. hrsdc. a number of studies have found that employees have dual loyalty. Although some of the simpler forms of involvement may not require complete mutual trust.fabour/labour_ relation~partner__program.v.htm Website for Labour-Management Partnerships Program : http. Union leaders will have to abandon the belief that employer and employee interests are inherently in . which are available in some jurisdictions.l. Workers who were involved were more likely to get involved in union affairs and hold more favourable assessments of the union.>ng.fwww. the parties should make a special effort to clear up outstanding grievances. They might also take advantage of government programs aimed at helping them to improve their relationship.sk. they run the risk that they wiU not have input into communications with employees. However. The ministry responsible for labour issues in other jurisdictions may have similar programs.ca . T he relationship issue and the knowledge gap might be addressed by having the parties engage in joint information and training sessions on employee involvement and by making use of a facilitator acceptable to both parties.gol'. Knowledge gap between union and emp loyer leaders 4.Tesoll1ngconflict. The websites in the margin describe some typical programs available in Saskatchewan and the federal jurisdiction. which has led to an adversarial relationship and a lack of trust.ca. T he knowledge gap refers to the fact that management representatives may be more familiar with the techniques and advantages of employee involvement than union leaders. Employees believe that they can be concerned for the employer's interests and union supporters at the same time. Website for Saskatchewan pro gram regarding resol ving workplace conflict and joi nt problem solv ing: ww•.shtml there is a history of conflict. A study that examined employee involvement programs in organizations where the union was a joint sponsor of the program found that this arrangement was likely to have positive outcomes for the union. Considerations 12-3 Barriers to Employee Involvement 1. Knowledge gap.Telations. Labour relations legislation Relationship between the parties. Prior to starting a program. Leadership attitudes. Attitudes and be liefs of unions and employers 2. the changes expire with the contract and must be renegotiated. Unions have not reached a consensus regarding the extent to which they should become involved in joint efforts with employers. A consultation requirement is not beyond the realm of possibility. Some aspects of collaboration and involvement with employers pose a problem for unions. Subsequently the number of grievances rose significantly. Privatization and government concerns about deficits have led to confrontations between unions and government employers. Public sector unions need to find ways to convince the public that jobs in the public sector are important. Management cannot be forced to negotiate during the term of the collective agreement. though such efforts have not yet produced concrete results. a survey conducted by the local found that more than half of employees were dissatisfied with the level of representation from it. traditionalists replaced the 337 . t he collective agreements negotiated between the pa rties deleted the management rights article. In response. Unions may need to engage in a review of their objectives and methods. Current labour relations legislation does not encourage continuous bargaining or collaboration between unions and employers. and this lack of consensus may pose a problem. suggesting that for a time the union was not adequately representing employees. there is the potential for conflict between the union's new role and its traditional one. Management can withdraw from any agreements relating to employee involvement concluded outside of the collective agreement. a number of factors pose a challenge to Canadian unions in the future. H owever. The political and legal environment has become less favourable for unions in many jurisdictions.Chapter I 2 Summary and Future of Labour Relations conflict. More jurisdictions now require a vote in all certification applications. unions are attempting to develop links with unions in other countries. At the Saskatoon Chemicals plant referred to earlier. Where management does agree to negotiate changes during the term. In the Saskatoon Chemicals situation referred to above. Management will have to be willing to give up absolute control over operations in order for some forms of employee involvement to work. An NDP government in Ontario amended the Labour Relations Act to require consultation. the contract was modified to allow for additional union officials to be elected with the authority to write grievances. Labour relations legislation. l'vlanagement can make changes in operations without the union's involvement pursuant to the management rights article in the collective agreement. and the wages and conditions of work of public sector employees are a cause for concern. Where unions take on roles formerly performed by management. Some employers may view this as unacceptable. What if an employee wants to grieve a policy the union had a role in developing? At the Saturn plant referred to above. fUTURE OF LABOUR RELATIONS U NI ONS Unions in Canada have been able to avoid the decline in membership that has devastated the labour movement in the United States. Legislative changes have made the law less favourable for union organizing. though a Progressive Conservative government subsequently repealed the provision. Globalization reduces the ability of unions to take wages out of competition. These difficulties might be addressed by amending labour relations legislation to require employers to consult with unions. To deal with the situation. " In the 1990s. Only 6 percent of unions spent more than 20 percent of their resources on organizing. 58 percent had a formal strategic planning process. Organizers with more diverse backgrounds and demographic characteristics that better match the workers being recruited will be needed. With respect to HR practices. ending many of the collaborative practices. Union density in the private sector is declining. and to better serve their members. there may be a problem lying behind the numbers. home care agencies. . crimt. to move away from the limited role of reacting to employer initiatives.37 A 1998 study considered the human resources practices and strategic planning undertaken by unions in Canada. Union Administration To function in today's more demanding environment.orgAJnionrenel\-al. the presence of an opposition group within the union may prevent union leaders from being co-opted by management. performance appraisal. " 40 Although total union density has not declined significantly and there does not appear to be a crisis. unions will have to ensure that they are democratic and also engage in bargaining reform. . it was found that fewer than half of Canadian unions responding had written policies for headquarters staff in areas such as hiring. 74 percent of responding unions had an annual budget. Some observers think that the Canadian union movement is at a standstill. and salary review. some unions will have to adopt improved planning and administrative practices./1\WW. 38 Canadian Union Renewal Website w ith informati on regard. 39 Charlotte Yates has noted. and 21 percent spent no resources on organizing. and childcare workers. Howeve~. Some unions have used salting-encouraging union members to take jobs in non-union establishments. and having them work on organizing the workplace fro m the inside. and 50 percent had a committee for the future.41 If Canadian unions are going to revive themselves.4 2 This includes people working in hotels. T he bargaining reform may include tactics such as coordinated bargaining at a company or sectoral level. ng union renewal : http. To better represent workers interests. and only 22 percent had personnel directors. unions in Canada were relatively successful at rebuilding their membership through organizing and exploiting new opportunities.html Salting is the organizing tactic of encouraging unio n members to take jobs in non-union establishments. With regard to strategic planning practices. and the United States. A 1993 survey of na tional and international unions in North America found that only 24. there will have to be a new emphasis placed on organizing. sometimes with the union topping up their pay to the union rate. Using rank -and-file organizers as noted in Chapter 6 is another tactic. Union leaders may have to ensure that the necessity of increasing membership is explained to current members who might resent the use of resources on organizing instead of providing services for current members. unions will have to review organizing strategies and better represent workers interests. Britain. and a focus on reaching out to workers who have been perceived as being un-organizable or uninterested in unions. and this problem has been masked by growth in public sector employment and unionization. Salting has been found to increase the success of organizing drives.338 Chapter 12 Summary and Future of Labour Relations union leadership that promoted a cooperative effort.01 survey of unions showed that only about one half of unions considered organizing a priority. and having them work on organizing from the inside./. To accomplish this.'\!though some unions have claimed to place increased emphasis on organizing. But in many instances this progress seems to have stalled in the last ten years.4 percent of respondents engaged in long-range planning. A 2000. it appears that organizing is still not given the attention that it deserves. the NDP has not formed a government. the voice of labour in the party will be weakened. Some of these policy differences. There has been no significant improvement in density rates in private services such as finance. does not seem likely. Decentralized bargaining leaves weaker local unions on their own to deal with employers. The current social and political environments do not seem conducive to major changes in legislation that are favourable to unions.43 They point out that union density rates in the economic sectors that have posed the most difficulty for unions have not changed. In Europe. At the federal level. are teclu1ical matters that will not affect the prospects for future union growth. Ten important issues have been sununarized in Figure 12-1 Policy Issues Affecting Union Growth. All of the policy alternatives that are more favourable to unions have been adopted in at least one jurisdiction. where it has remained at less than 10 percent for a decade. nor has the party held the balance of power that would allow it to bring about legislative changes that would benefit unions. Past union growth has been linked to a fa vourable economic environment a nd legislative change. The density rate for part-time workers in 1987 was 20 percent. unions should benefit from the 2007 Supreme Court of Canada decision in the Health Services case that protects collective bargaining from substantial interference by govenunent. reducing the cost to employers significantly. Policy differences between jurisdictions. It is argued that centralized bargaining is advantageous to unions because it lowers employer resistance. although 90 percent of employees at the major manufacturers are unionized. which make the legal environment more or less favourable to unions.Chapter I 2 Summary and Future of Labour Relations although this will likely face employer opposition. T here was anot her period of growth following legislation that extended collective bargaining rights to public sector employees in the 1960s. such as the requirements for a strike notice. Joseph Rose and Gary Chaison are pessimistic about the future of w1ions in Canada and the United States. There is also the possibility that as the NDP attempts to increase its support by broadening its base. Recall the growth in union membership during the boom following World War II and Privy Council Order 1003 . T he United Steelworkers union has negotiated benefits for security guards that involve dental clinic in union halls. insurance. At the provincial level. T he issue of benefits for small employers illustrates a possible bargaining reform. and by 2008. However. NDP governments in British Columbia and Ontario were defeated in the 1990s. Rose and Chaison say that unions have not been able to bring about the changes necessary to revive unions.5 percent. and subsequently amendments were made to labour relations legislation that were unfavourable to unions. it had increased to only 22. which is now more competitive with outcomes determined by the market. centralized bargaining increases the union influence on wage determination. But at this poinr. Rose and Chaison point out that the decentralized structure of collective bargaining in North America is not favourable to union revival. and accommodation and food. 339 . a change in the economy. T he prospects for union revival and growth would be enhanced if more jurisdictions adopted policies favourable to unions such as determining union support on a certification application by way of cards instead of representation votes. In the political and legal arena. Other policy issues have the potential to affect union organizing efforts and success in contract negotiation. have been considered in previous chapters. Benefits for small employers are very costly. only 45 percent in the independenr auto parts industry are unionized. In the auto industry. Replacement workers during a stri ke Prohibit use of replacement workers 8. First and second contract a rbitration Make arbitratio n ava ilable whe re parties can not negoti ate agreement 9. It appears that environmental factors are a barrier to increased union -management collaboration. including a requirement that the employer facilitate unionization and the union giving up the right to strike. and t his will lead to attempts to . and the question of union-management confrontation versus collaboration was raised. or it remains an exception to the traditional labour relations model. coercion or intimidation of employees e ngaged in uni on activity. is a significant development. and the Magna -CAW Framework of Fairness Agreement tha t entails more collaboration has been referred to. and some employers have claimed that by encouraging unionization. Uni on d iscipline and terminati on of membershi p Eliminate prov isio ns preventing unio ns fro m te rminating me mbership for a ny reason othe r than non-payment of dues 10. Determination of union support on an appl icatio n for certifi catio n Membershi p cards instead of representation vote 2. the economy might also be a cause of conflict. Reinstatement of employees at the end of a stri ke Require e mployers to re instate e mployees CONFRONTATION OR COLLABORATION? In Chapter 1. T he agreement. 4 . Uni on membershi p Allow labour relations board to certify unio n without a vote Compulsory 6. Employers will continue to be forced to do more with less. T he possibility of inc reased collaboration through approaches such as interest-based bargaining and grievance mediation has been considered.340 Chapter 12 Summary and Future of La bour Relations fiGUR E 12-1 Policy Issues Affecting Union Growth Issue Policy Favourable to Unions 1. Although the increasingly competitive economic environment has been noted as a factor that might encourage the parties to move towards a more cooperative relationship. T ime will tell if the agreement is the beginning of a fundamental shift in labour rela tions towards collaboration that will be widely adopted. management at Magna have abdicated their responsibility to educate employees about what they perceive as the negative aspects of tmion membership. Uni on dues Compulsory check-off 7. O nus in unfair labour practi ce Reverse o nus o n employer compla ints against e mployer re lating to te rmination. It should be noted that the agreement has critics among both employers and unions. Some union leaders have expressed concern about giving up the right to strike. Figure 12 -2 contrasts traditional la bour relations to the provisions of the Framework of Fairness Agreement. a framework for labour relations was provided. Level of support required for a certificati on appli catio n Reduce req uire ments for certificatio n appli catio n to less than 50% 3. Remed ies for employer unfair labour practi ces during uni on orga ni zing 5. Subsequent chapters considered the environmental factors affecting labour relations. and the processes the parties engage in. such as grievance mediation. T he past has been marked by conflict and employer opposition to unions. all of which will bring the employer into conflict with the union. T he political environment does not seem to encourage collaboration. The Wagner model of labour relations involves the union -management relationship starring with a conflict over union certification.Chapte r I 2 Summary and Future of Labour Relations FIGURE 12-2 Traditional Labour Relations v. T he processes presently in use are often inherently adversarial. It is important to note that unions are political and social organizations. Subsequently much of contract negotiation can be viewed as an attempt by the union to limit management control of the workplace. including interest-based bargaining.44 One of the questions asked in the survey concerned the extent to which organizations valued people. It may be difficult for union leaders to cooperate with employers on a project in one area. in so me cases e mployer manages and union reacts Gri evance proced ure and rights a rbitratio n Employee Relations Review Committee prov ides union opportunity ior input Dispute resolution procedure including hotline and Fairness Committee Contract ad ministratio n contract out. e mployer may c hallenge application Employer recomme nds uni oni zation to employees Employer agrees to vote. however. Collaboration requires a basic level of trust. Union leaders who wish to move toward collaboration may have to hope that w1ion members have short memories. Fifty percent of union officials felt that management viewed cooperative programs as a way to reduce union power. the approach has not yet been widely adopted. Approximately 91 percent of employer respondents indicated some agreement with the statement that people were the organization's most important asset. has not developed further: the beliefs and values of managemenr and union leaders. T he extent to which the legal environment is conducive to collaboration has been questioned. recognizes union when union has majority support Contract negotiation Distributive bargaining. Terry Wagar conducted a survey of union officials and employers from 1977 to 1998 and found that they had very different perceptions of labour relations issues. and a consensus on the importance and role of employee involvement. Grievance arbitra tion produces winners and losers. and limit compensation. With regard to innovation in the 341 . where governments have passed legislation eliminating commitments made in collective agreements. while the employer is eliminating jobs and increasing discontent.strike or lockout in event of impasse No strike or lockout. Traditional distributive bargaining appears to be a barrier to collaboration. however. Although there have been calls for the adoption of interestbased bargaining. Framework of Fairness Agreement Traditional Labour Relations Framework of Fairness Agreement Employer strategy before barga ining rights obtained How bargaining rights are obtained Employer attempts to prevent unionization through union avoidance Union appli es to Labour Relations Board ior certification. T his is especially the case in the public sector. with some politicians trying to make political points by attacking both public and private sector unions. and 48 percent of union officials expressed some level of agreement with the statement that the interests of the union and the employer are in conflict. introduce technological change. inte rest arbitration in event of impasse Management of operations Labour-management committees possible. only 40 percent of union officials thought that the employer valued employees. T his brings us to a key reason why collaboration. 77 percent of union officials disagreed with the statement that the organizations supported bargaining unit members who tried new things and took calculated risks.342 Website for Worl<place Bulletin: http. it may be advisable to involve the union. 3.//www. Productivity may be reduced. p. 2. p. A union has just organized a company's employees. 331 crowding effect.1abour_relations/ info_analysisjbulletiiJ(archil'e. and employee commitment to the organization. 331 job control unionism. Improving the union-management. 2 . employee job satisfaction. .gc.ca. Key Terms co-determination. p. some unions may have to improve their knowledge and administration. 330 quality circles. the employer's ability to recruit and retain skilled employees. Explain and give examples of the following: threat effect. Implications for Practice 1. Although employers can pursue employee involvement programs without union involvement where such programs do not impinge upon provisions of the collective agreement. p. Typically.kng/ Jabour. and unions. Employee involvement has the potential to increase productivity. This would involve the adoption of longrange planning and human resources management practices such as performance appraisals. Because the union-management relationship is critical. Unions and employers might make use of programs available from the ministry responsible for labour iss ues to assist them in improving their relationship. p. Describe the possible effects of unionization on human resources management. crowding effect. In Chapter 1. Let us end by expressing the hope that the three key actors in the labour relations system. The unionization of employees has significant consequences for employers. unionized employers will find that compensation costs are increased. the importance of labour relations for all Canadians was noted. 326 employee-management conunittees. 326 Review Questions 1. employers should take measures such as establishing a labour-management conunittee to deal with problems and issues as they arise. 331 Tayloristic work principles. or increased depending on the rela tionship between the employer and the union. shtrnl Chapter 12 Summary and Future of Labour Relations workplace. Wagar found that union leaders see only moderate support for cooperative programs on the part of supervisors and upper management. p. Hopefully further research regarding methods to build the foundation required for union -management collaboration will be conducted. employers.hrsdc. p. 329 problem-solving groups.can find ways to improve labour rela tions processes and outcomes despite the enviromnental challenges that lie ahead. p. 4. 330 salting. 329 threat effect. 338 self-directed or self-managing work teams. p. p. maintained. Overall.government. These findings suggest that the foundation of trust and consensus between the parties regarding the role of employees does not exist. In order to deal with the challenges they face. relationship is necessary to move towards more collaboration. The Workplace Bulletin website provides information relating to developments in Ia hour-management issues. circulation. Find the L1bour-Managemenr Partnerships Program at H uman Resources and Skills Development Canada. advertis ing. and what you have read in this book. and ad min istration. In addition to the newspaper. publishes a newspaper in a city with a pop. what is your opinion regarding the effect of unions on productivity? 2. What concerns and hopes would you have if the employer introduced an employee involvement program? 3. The offices and pri nting facilities are in the same building. On the basis of your experience. The reporting staff consists of 10 full-time and part-time employees. 2. Which of these barriers will be the most difficult to overcome? Discussion Questions 1. Outline the barriers to increased employee involvement in unionized workplaces. and the dismissal of unionized employees. a nd each of these departments has a manager who reports to a ge ne ral manager. The newspaper has a circulation of 10 000 copies per day and is in competition with another newspaper in the same city. Most reporters spend the majority of their time worki ng on sto ries in one of the following areas: sports. ulation of 275 000 people. Outline the challenges that unions will have to overcome if they are to increase membership. a nd from time to ti me the newspaper uses freelance writers for special projects. What are the factors that determine the size of the union wage effect? 4. In the printing area. Do you think that it is possible or desirable that unions and employers are more collaborative? Web Research 1. T here are alternative arguments that unions increase and reduce productivity. The office manager has performed some human resources management acti vities . Observers have conunented extensively on the possibilities for union renewal.Chapte r I 2 Summary and Future of Labour Relations 343 3. the company has a printing department that prepares material such as brochures. Prior to reading this book you may have had a positive or negative opinion towards unions. and department ma nagers have been left to deal with human resources issues as they arise. Reference has been made to labour relations being more or less confrontational or collaborative. T he overall union wage effect is expressed as a range. The company does not have a human resources manager. family-owned and in operation for 60 years. has your opinion been changed or confirmed? Referring to any other issues discussed in this book. there is one manager responsible for the production of the newspaper and another manager responsible for the outside printing work. and family. who is also the newspaper's editor. Determine the purpose of the program and any information on how the program works. and flyers for area businesses. Assume you are a union leader. local news. business. Referring specifically to what you have learned about seniority. What information can be found about this issue on the Web? Trout lake Printing Company The Trout Lake Printing Company. observations. The main departments in the newspaper are reporting. the union's duty of fair representation. has your o pinion regarding unions been changed or confirmed? 5. 4. menus. It is expected that the company w i ll have to adopt newer technology in the future. when the printing area has fallen behind. what implications might a collective agreement have for the company I . and hours have been extended and overtime used. however. Management of the company would appear to be paternalistic in some ways. paying the overtime rate provided for in employment standards legislation. most want to ea rn extra in come. In the printing area. In the past. Employees at the company have never been represented by a union. Questions 1. Because the company does not have a human resources manager. The company has not adopted computer and information tech no logy as quickly as its competito rs. In the hol iday season. selection decisions have been based upon interviews of candidates. the newspaper printing manager and the outside printing manager have handled the problem of absenteeism diffe rentl y. The company has fi lied job openings by referring to resumes submitted or placing advertisements in the Help Wanted section of the newspaper. Approximately 20 percent of candidates have not been hired as full-time employees. one employee became pregnant. to 5 p.344 Chapter 12 Summary and Future of Labour Relations suc h as record keeping and the admini strati on of benefits. The company operates f ro m 8 a. O n a few exceptio nal occas ions. office employees have been called in to help. and it was suggested that she take a leave of absence although she wanted to work for two more months. management representatives on the committee dismissed the matter. If the union organizing the printing and reporting department employees is successful. there are no plans to hire one at th is time. A safety incident in the printing department appeared to trigger the o rganizing drive t11ere. W hen a reporting position became available. however. managers have chosen employees for ove rtime work on a rando m basis. Two recent situations have led to a union trying to organize the newspaper w riters and printing employees. and this could result in a loss of some jobs. The owner has considered hiring an HR manager when managers have complained about HR matters taking up too mu ch of thei r time. th ere is some additional printing work to be do ne. The company pays the premiums for group life insurance and has a dental plan. The company has experienced some problems w ith turnover. Although some employees would rather not work add itio nal ho urs. last year. quietly providing financia l assistance to upgrade home computers. The company's vacation pol icy is as follows: two weeks after one year. there are few formal established HR policies. The newspaper faces an o ngoing battle with the competing newspaper for circulation and advertisers . but w hen the incident was raised at the health and safety committee. the manager filled the position by reviewing recent resumes she had received and hiring a person w ho had not previously worked for the employer. w ho establ ished websites to market their products and provide services online. as employees w ho have gained experience have moved to other newspapers o r competing printing businesses when the opportunity arose. m. In the reporting department. It is rumoured that a few members of the owner's family who work in the business always receive at least the maximum bonus allowed. especially in the production area w here the company appears to rely on the probatio nary period. except in the peak holiday season. The company has tried to keep compensatio n costs down. wages are sli ghtly lower than those of the competing newspaper and other printing businesses. but this approach has recently caused several employee complaints. The company provides the holida)'S req uired by employ ment standards legislation . Managers have handled employee behaviour and perfo rmance problems o n a case-by-case basis. and th ree weeks for employees with more than five years of service. the employee leading the uni onization drive left the company. while she has told other reporters they must work at the newspaper. There was some talk of a unio n organizing the printing employees several years ago. while the printing manager has usually issued fewer warnings and dismissed problem employees. saying it was the employee's fault.m. An employee was slightly injured w hen she was lifting a box of paper. O ne of the printing area employees had completed a journal ism studies program as a part-ti me student. hoping to be hired as a writer. The manager responsible for reporters has dealt w ith the issue of employees worki ng at ho me in an uneven manner. The newspaper manage r has tended to be more lenient and has issued numerous warnings before taking any further action. The company has an annual incentive bonus plan that provides for payment of 1 to 3 percent of employees' salaries on the basis of performance. She has all owed some reporters to work at home. The se lection procedures used by the company have been simple. T he union constitution prohibited union members from crossing a picket line. and other HR tasks. Samuels applied for union membership. his contract would have been terminated. T he position was in the bargaining unit. L·uer he was advised that an objection had been made to his membership application. Samuels crossed the union picket line and continued his non bargaining unit work in the HR department. Samuels's duties included safety and WHMIS training. and could be asked questions. T he collective agreement between the union and the employer provides that all employees in the bargaining tmit must become union members. Samuels made a submission and acknowledged crossing the picket line to do non-bargaining unit work. He stated that if he had not done so. The agreement also provides that the union will admit all employees to membership subject to the provisions of the union's constitution.COLPOY'S BAY NEWS John Samuels worked two days per week as an independent contractor in the human resource department of the Colpoy's Bay News. call witnesses. During a strike at the newspaper. Samuels was advised that he could attend a meeting of the union's executive board at a specified time. when the issue of his application for membership and the allegation that he had crossed the picket line would be dealt with. Energy and Paperworkers Union of Canada. based on his crossing the picket line during a strike. Samuels was provided with a copy of the union's constitution and bylaws. At the meeting. After the strike. He was advised that he would be given an opportunity to be heard. Samuels was hired for a part-time position in the promotions department of the newspaper. It was noted that Samuels would be holding . Employees at the newspaper are represented by the Conununications. Samuels was asked again if he would cross a picket line in the future. labour relations legislation provides t hat a union cannot expel a member or suspend membership for any reason other than the failure to pay union dues. in light of the fact that he would be holding two positions. When he was asked if he would cross a picket line in the future. and his application for union membership was rejected because he had crossed the picket line at the Herald. and if he had to cross the line he would resign his union membership. Samuels replied that he would have to consider the situation at the time. Are you in favour of such a provision? HAY lAKE MANUFA CTURING T he Hay Lake Manufacturing Co. located in Winnipeg. At the local council meeting. The members of the appeals cotrunittee were advised that they were to treat the proceedings as a new application for membership.. Samuels was notified that the executive board had decided against granting him union membership and he could appeal this decision to a local council. what would your decision have been? 3. H e responded that he might cross a picket line to report for his work in the HR department. T here are 300 full-time production workers in the bargaining unit. and he was asked whether he would cross a picket line in the future.346 Appendix A Cases two positions. manufactures high-pressure cylinders for the storage of propane. and if he had refused to do so he would have been terminated. If you were on the appeals committee. What is your assessment of the fairness of the union procedure? 2. He also made an unconditional commitment at the appeal hearing that he would not cross a picket line in the future . and in 1995 the plant's production workers were organized by the United Steelworkers of America. save . Samuels was given an opportunity to speak to the cotmnittee. He was later told that his membership application had been dismissed because of his position regarding the crossing of a picket line. The appeals comtnittee denied Samuel's application for membership. T he following is a summary of some of the terms of the current collective agreement between the company and the union: Article 2 Recognition: provides that the union is recognized as the bargaining agent for all employees of the company in Winnipeg. T he original company was established in 1990. l'vlanitoba. Manitoba. Samuels and the committee members were given an information sheet that referred to previous cases in which individuals had been denied union membership and the outcome of their appeals. he responded that he might be forced to resign his union membership and cross a picket line. Subsequently. The appeals conunittee consisted of individuals in the local who had no previous involvement in Samuels's application. Samuels was advised that he could present his case at an appeals committee at the annual congress of the local. QUE STI O N S 1. Sneling had been hired by the News as a sports editor. one in the bargaining unit and the other outside of the bargaining unit. Subsequently. Sneling said he was ordered to cross the picket line at the Hope Bay Herald. In some jurisdictions. Prior to the appeals committee hearing. One case involved an employee (Sneling) who was transferred from the United States to the Hope Bay Herald during a strike. At his appeal. The employer disagreed and took the position that the jobs were not covered by the agreemem. and also claimed that at least one of the jobs was a management position. inspect for damage. and when in the company's opinion skill. and move them into their designated area.'\rticle 4 Bargaining Unit Work: provides that no work shall be performed by persons outside of the bargaining unit when qualified employees are available or on layoff. Assume that you are the arbitrator hearing this matter. office. the employer shall promote or transfer employees based upon skill. Singh does most of the paperwork and computer entry. there was an increase in business and the company needed additional warehouse space. and job knowledge required. while Olson does most of the moving and unloading of materials. Subsequently the company hired two new part-time employees. clerical. hotel. . Singh and Olson. The employer denied that the two employees were performing bargaining unit work.Appendix A Cases and except quality control technicians.'\rticle 21 Job Posting: provides that job openings shall be posted for three days and applications for open positions will be accepted for three additional days. The invemory system at the plam is still based on a manual or paper system. persons above the rank of supervisor. which sets out the positions in the bargaining unit and their wage rates. three kilometres from the plant. as warehouse coordinators. In 2005. and explain what your decision would be. using a forklift truck. In 2010. supervisors. ability. . The policy provided that male guards were required to 347 . it adopted a grooming policy. ability. how would you respond to the employer's position? 2. Security guards at Lakeshore are represented by a union.'\rticle 20 Seniority: provides that in the event of a job vacancy. They work four hours per day. the plam manager noted that the collective agreement was signed prior to the time that Hay Lake owned the business. which alleged that the warehouse coordinator position was bargaining unit work and the company was in breach of the collective agreement. T he warehouse coordinators receive materials and parts. five days per week. T he warehouse coordinator position is not listed in Schedule A of the collective agreement. At a grievance meeting. If you were a union officer. Hay L1ke purchased the company. The union filed a grievance. and sales staff. and job knowledge are equal. Q UE STI O N S 1. LAKESHORE CASINO Lakeshore Casino operates a convention center. The union approached the company shortly after the jobs in the warehouse were filled and claimed that the jobs were in the bargaining unit and should have been posted. After the purchase. tag them. and casino facility. seniority shall be the deciding factor. there was no warehouse at the time the collective agreement was signed. After Lakeshore received a complaint about the appearance of one of the male security guards who had longer hair. . the company leased a warehouse in Winnipeg. T he new warehouse includes a computerized system that allows the company ro keep track of all materials and inventory. enter items into the system. Olson takes day-to-day direction from Singh. and furthermore. . The agency's counsellors are covered by a collective agreement that provides new counsellors are on probation for the first six months of their employment. After White had her baby. 2 . and White's manager asked her to defer the start of her maternity leave for one week. Jones was terminated because he was wearing a 1/4" stud earring in one ear. Assume that you are the arbitrator hearing this matter. One earring was permitted in each ear. Earrings were not to be worn on duty. The agency was experiencing staffing problems. How could the union respond to this termination? Include any arguments that might be made at an arbitration hearing. White gave her employer notice that she wished to start a pregnancy leave at the end of August. transfer. White was called to a meeting and advised that she was still on probation and that she was being terminated. QUE STI O N S 1. For females the policy provided that hair was not to extend below the shirt collar more than 1 inch at the back or below the eyebrow in the front. which provides that "A probationary employee may be discharged at the sole discretion of and for any reason satisfactory to the employer. White declined this request. layoff. Earrings had to be a stud type." The agreement also contains an article relating to probationary employees. and without restricting the generality of the foregoing. What arguments could the employer make at an arbitration hearing? 3. At the end of her first week back. she advised the employer that due to complications with her child's health she wanted to work half days for the first three months after her return. and explain what your decision would be. When White asked if the termination was prompted by the fact that she had not agreed to defer the start of her pregnancy leave or her request to work half days. 2010. Jennifer White started to work at the agency as a counsellor on April 1. In July. confirming that she wished to start her leave on the original date requested. the union acknowledges that it is the exclusive function of the employer to hire. White returned to work. One month after the policy was adopted. recall and to suspend discipline or discha rge employees. fi nancial. The collective agreement also contains a management rights clause. and were otherwise to be dean-shaven. Mark Jones is a male security guard who has been employed at the casino for six years. promote. Jones has one written warning in his personnel file for reporting to work late one year ago. direct. TIMBERWOLF fAMilY COUN SElliNG Timberwolf Family Counselling provides assistance to individuals with marital. and four days later she did not yet have a reply to her scheduling request. which provides the following: " The union recognizes that the management of the operations and the direction of the employees are fixed exclusively in the employer and shall remain solely with the employer . H air was not to extend below the collar at the back or eyebrows at the front . the employer representatives at the meeting did not . classify. and other personal problems.. demote." T he collective agreement provided that employees were entitled to pregnancy and parental leave in accorda nce with employment standards legislation. not exceeding 1/8" in diameter and makeup had to be moderate.348 Appendix A Cases keep moustaches trimmed so that they did not go below the lip or the corners of the mouth. " Secondly. record of offenses. and Drew Roberts. and he made changes that caused employee discontent. ancestry." White discussed her dismissal with a union steward who in turn reviewed the situation with management. First. dismiss or otherwise penalize an employee or threaten to do so. and established a new formal policy relating to employees changing shifts that made a shift exchange more difficult. place of origin. Prior to the appointment of White as store manager in January 2010. Eat Rite Ltd. EAT RITE LTD. T he situation was made worse by the fact that there was a personality conflict between Coulis and the new store manager. White was still on probation at the time of her termination. b) If you were required to make a decision on the merits of the grievance. White directed that overtime would not be approved except in emergencies. age. The head cashier's responsibilities include training new cashiers. Diane Parker. When White asked why she was being terminated. and (2) in any event. The union steward raised two issues with the employer. and it has a large deli department and bakery. In order to reduce costs. sex." The agency's director of human resources indicated that it was the employer's position that: (1) because the collective agreement did not contain any discrimination provision the matter was not arbitrable. a) If the employer responds to the grievance with an argument that the grievance is not arbitrable. ensuring continuity of service during breaks. Some employees felt they were being pressured to work additional time without compensation. Assume that you are the arbitrator hearing this matter. she was told that management had determined that she was not suitable for the job as she was not a "team player. explain what your decision would be. the employer was in violation of the reprisal provisions in employment standards legislation which provided that "No employer or person acting on behalf of an employer shall intimidate. checking and verifying the accounting clerk's cash count at the end of the day. because the employee asks the employer to comply with this Act and the regulations. the assistant store manager. explain what your decision on that issue will be. T he management team in the store is comprised of Max White. family status or disability. what remedies would you order. creed. citizenship. operates a chain of grocery stores across the province including a store in Yourtown. sexual orientation. he directed that the time allowed for breaks and lunches be strictly adhered to. Sandra Coulis was hired as a cashier in 2002 and promoted to the position of head cashier in 2005 . the store manager. the bakery manager. Coulis was particularly upset and frustrated with the changes implemented by White. the employer was in violation of human rights legislation that provides: "Every person has a right to equal treatment with respect to employment without discrimination because of race. c) If you upheld the grievance. Lucy Hightrees. color. same-sex partnership status. QUESTIONS 1.Appendix A Cases respond. employee relations had been positive. The Yourtown store is the largest in the province. and locking up the store and setting the alarm system. \Vhite was "aU business" 349 . Also. he was directed to improve the store's performance that had declined in the previous year. When White was hired as the store manager. the deli manager. ethnic origin. How will any grievance filed in the situation be worded? 2. marital status. The union may take you on strike and we will have to hire and train new employees. if she had signed a union card. Coulis was involved in an incident that subsequently led to her contacting the Retail Workers Union about the possibility of unionizing the store. When he raised the possibility of terminating Coulis with the HR advisor at Eat Rite's head office. and she was told that if her performance and behaviour did not improve. Subsequently. The assistant manager rold Coulis she had been issued a set of interview questions to ask applicants and had been di rected not to hire applicants who had worked for a unionized employer. When a union gets into a workplace it is impossible to remove the union. You will have to maintain your union membership no matter what the union says or does. further discipline would be imposed. and if the clerk was delayed in preparing the report. and if she knew how many other employees had signed cards. When management heard about the organizing campaign. The union may tell you that it will be able to obtain wage increases. Signing a union membership card is a serious step which cannot be undone. While she was absent. White was further advised that unless there was more serious misconduct that amounted to just cause. and because she was not there to reset it. Coulis was further upset when a friend of hers applied for a job at the store and was not hired. If you do not maintain your membership the law requires us to terminate your employment. Coulis could not be terminated without providing her rea sonable notice. Perhaps because of her increasing frustration and dissatisfaction. T his led to tension with Coulis because she had ro sign off on the cash report at the end of the day. White was told that the alarm incident was not serious enough to justify terminating Coulis. In August 2010. White advised employees not ro sign union cards until the employer had an opportunity to respond. Coulis contacted the union and the union began an organizing campaign at the store on November 2. Union organizers will tell you that everyone else is signing a union card when in fact that is not the case. a disciplinary letter was provided to Coulis. and he was advised to give her a formal letter of warning instead of dismissing her. Coulis started ro take extended coffee and lunch breaks. Management also distributed a brochure that read as follows: A union? Think about it! We do not believe that the union will advance the interests of employees. Be careful when you talk to a union organizer and know what you are signing. White was told that reasonable notice for Coulis would be at least six months. the store alarm went off. Coulis was required to stay until the report was finished. T he employee reported that she was asked if she knew who had contacted the union. she left the building on a break. . On one occasion. This incident disrurbed White so much that he wanted to fire Coulis. Coulis on the other hand enjoyed joking with her colleagues and thought that the workday should involve some fun. Coulis asked the assistant store manager why her friend had not been hired. Some of our competitors are unionized and when employees in those stores unionized they started to pay on average over $600 a year for union dues. the alarm went on for 45 minutes. there was a prompt response. this led to the accounting clerk taking even more time to track down errors to reconcile the count.350 Appendix A Cases and spent little time discussing anything other than job responsibilities. contrary to store policy. Managers asked employees what issues and concerns had led to the union orga nizing attempt. One of the employees who knew that Coulis had initiated the union campaign told her that she had been called into the store ma nager's office for a meeting tha t included the regional manager. No one can make such a guarantee in this economic climate. The assistant store manager told CouJis her friend was not hired because she had previously worked in a unionized store. 2010. When White insisted that the errors in the cash count at the end of each day be reduced. an employee from exercising any right conferred on the employee by this Act. When White heard that Coulis had left the store. including the details of any complaints that would be filed. TI1e 351 . told his employees that the company would not operate with a union and certification would lead to closure of the store. Assume that you are the HR manager responsible for the store. 2(1) No employer or employers' organization and no person acting on behalf of an employer or employers' organization shall (a) refuse to employ or to continue to employ any person or discriminate against any person in regard to employment or any term or condition of employment because the person is a member of a trade union or an applicant for membership in a trade union. or to discharge employees for proper and sufficient cause. QUESTIONS 1. Roberts. The relevant labour relations legislation provides as follows: 1(1) No employer or employers' organization and no person acting on behalf of an employer or employers' organization shall (a ) participate in or interfere with (i) the formation or administration of a trade union. Coulis was involved in another incident. The company also uses 20 drivers who own their own vehicles and drive for the company part-time. he terminated her after checking with head office on November 25. transfer or lay off employees.Appendix A Cases On November 23. (c) seek by intimidation. the deli manageJ. officer or representative of a trade union. (2) An employer does not contravene subsection (1) by reason only that the employer expresses the employer's views so long as the employer does not use coercion. 2. by the imposition of a pecuniary or other penalty or by any other means. After November 26. threat of dismissal or any other kind of threat. 3. or has the effect of restraining. she left the store and wem to a nearby bar to have a drink. and outline the response that you would recommend to the employer to any union complaints. The company employs 30 full-time drivers who drive vehicles owned by North Tea. or (ii) the representation of employees by a trade union. When she determined that there would be a delay in the cash counr for the day. promises or undue influence. Nothing in this Act detracts from or interferes with the right of an employer to suspend. Outline how you would proceed. He referred to Coulis' dismissal as proof that the employer would not tolerate a union. On November 26. intimidation. NORTH TEA TRUCKING North Tea Trucking transports shipping containers to and from ports. dismissal. She returned after one hour to complete the cash count for the day. Assume that you are a national representative of the Retail Workers Union. threats. the union was not able to obtain any signatures on union membership cards. (b) impose any condition in a contract of employment that restrains. to compel an employee to refrain from becoming or to cease to be a membeJ. The owner of North Tea made a proposal to all of the drivers that if they agreed to a 15 percent reduction in their pay. All of the fulltime drivers who agreed ro the proposed terms and signed the document were rehired. when the agreement was referred to the bargaining unit for ratification. North Tea suffered a decline in business. However. On January 9. and Jamaal did not sign the document. Subsequently. 2009. however. In October 2006. the employer was able to resume operations by hiring replacement workers . When he was asked abom the three employees. 2009. the union started a strike. the union and the company had reached agreement on all but two issues: shift premium and wages. Employees subsequently voted 85 percent in favour of a strike. mirrors.352 Appendix A Cases part-time drivers also work for other businesses. the drivers who had been laid off approached the owner to rerurn to work. this was not enough to stem the loss of business. and North Tea's competitors reduced the rates they charged. and the work stoppage ended.10 per hour apart on both issues. RELIABLE AUTO PARTS Reliable Auto Parts produces trim. The company agreed to this proposal. By January 8. On December 20. and other related accessories for the auto industry. and more people would be working. and 15 full-time drivers were laid off. business would increase. What issues are raised in this situation? 2. hubcaps. However. TI1e drivers and owner-operators agreed to this proposal. when business smrted to improve. The most recent collective agreement expired December 15. and the work available for drivers was reduced. and the employer made a revised offer to the union. After the rejection of the agreement. The union and the employer met prior to the expiry of the agreement knowing that the company was in financial trouble. The union bargaining team did not accept the employer's final offer. T he parties were $. The employer bargaining team refused to make any further concessions and told the union that it had received the employer's last and final offer. the bargaining teams resumed negotiations. the union and employer bargaining teams reached a tentative agreement. Pinder. Employees at the company are represented by the Canadian Auto Workers union. it was rejected by 88 percent employees. In September 2006. 2010. the owner-operators refused to do any more work unless they were paid the same rates as unionized drivers in the area. the manager said that there was not enough work available yet to rehire all of the drivers. Q UE STI O N S 1. the rates charged to customers could be reduced. In June 2006. Jones. 2010. In the first two weeks of the strike. Explain any action that could be taken by any of the parties and the likely results. it was anticipated that new investors and a recovery in the auto industry would put the company back on sound financial footing. the Canadian Auto Workers began an organizing campaign to represent both the full-time and part-time drivers at North Tea. and subsequently there have been renewals of the collective agreement. the demand for trucking services declined drastically. and they were not rehired. The union was certified to represent production employees in 2002. T he union and the company reached a first agreement in 2003. T hey were presented with a document to sign that provided that they agreed to work at reduced rates and cancel the application for certification made by the Canadian Auto Workers. Jackson felt ill. the removal of restrictions on supervisors doing bargaining unit work. and she followed school procedure and called her supervisor. 2010. RAYSVILLE S C HOOL BOARD T he Baysville School Board has a separate school for exceptional children who have cognitive difficulties and/or physical conditions that require special assistance. a reduction in the number of days allowed for union leave. On the evening of January 11. Include any complaints that would be filed with the Labour Relations Board. a reduction in the overtime provisions to the minimum provided in employment standards legislation. the Board should order. At the meeting. T he strike continued with several incidents of violence on the picket line but the employer was able to continue operations. The employer responded that there was no contract because the January 8 offer that the union had purported to accept had expired. Telephone calls from the union's lead negotiator to the employer were not answered. the employer sent a new offer to the union that included the following: a wage freeze. Following standard operating procedure. Rhonda Fraser. it stresses the importance of modeling good behaviour and the ability to interact with colleagues so that a positive environment is maintained for the students. Explain the decision that you think the Labour Relations Board would make in this situation. T he union conununicated the acceptance of the offer to the employer and inquired a bout a return to work under the terms of the new contract. and other concessions. the union bargaining team made calls to the employer's representatives to resume bargaining. On March 23. Patrice Jackson was hired as an educational assistant in August 2009. the union held a meeting for bargaining unit employees. the bargaining unit agreed to accept the offer made by the employer on January 8. On April 18. Assume you are a union official involved in the situation. The employer representative responded that he did not see any point to resume the negotiations on the basis of discussions with employees on the picket line as he was entering the premises. there was a confrontation between the union and employer lead negotiators. T he next morning Fraser forgot to advise the school secretary that Jackson would be absent. changes in the dental plan decreasing benefits to coverage from every six months to nine months. the school secretary phoned Jackson at home to find out if 353 . When employees are hired at the school. The employer representative also said that the employer would not talk to the union while the violence on the picket line was ongomg. Explain your position and supporting arguments. Include the remedies. to advise her that she would not be able to attend work the next day. a reduction in the shift premium.Appendix A Cases and using employees who crossed the picket line. The union spokesperson demanded to know why the employer had failed to respond to requests to resume negotiations during the strike. Q UE STI O N S 1. if any. Those employees told him that the union was not willing to change its position. Two weeks into the strike. the calls were not returned. The parties agreed toresume negotiations. 2. Teachers and educational assistants follow a program that is individually designed for each child. however. T he union claimed that the employer had not indicted that the January 8 offer would be " off the table" if there was a strike. At the first meeting of the negotiating teams. Jackson replied that it did not matter because the students could not understand anyway. At the end of the week. The superintendent suggested that a meeting be held with Jackson to review her behaviour. One week later when the minutes of the meeting were circulated. On April 1. Minutes for this meeting were prepared by Tim Parker. Will the employer be able to defend the dismissal? Explain.354 Appendix A Cases she was going to be attending work. At the meeting. and she spoke to a superintendent at the school board about the situation. a staff meeting of teachers and educational assistants was held. and she was provided a notice of termination on the next day. . Fraser was in a private meeting with a teacher. One of the individuals that Jackson spoke to reported the conversation to the school principal on the same day. did not plan on changing her behaviour. Fraser apologized for failing to advise the school secretary of Jackson's absence and attempted to explain that she had been called to an emergency situation on her way into the school on the morning in question. On February 18. Jackson called him over to her and in a loud voice complained about the "God damn" minutes. When Parker walked through the area. taking a student away from the school on February 18. Fraser outlined the school's concerns regarding the absence call in incident. On April 12. and Jackson was vocal about several issues. Jackson stated that she would be refusing to attend further staff meetings and the school could deduct her pay accordingly. Jackson had a discussion with a national representative of the Provincial Teachers Union. Rhonda Fraser's assistant. On April 20. Jackson interrupted and said that the school could "shove" the call in procedure. Jackson was called to a meeting with Fraser and the school board superintendent on April 23. 2010. explaining that she had to go home because her bull had gotten out of its corral. On the basis of Jackson's response at the meeting. Fraser emphasized the importance of modeling good behaviour for students and positive relationships with co-workers and indicated that she hoped Jackson would change her behaviour. What action could you take to deal with Jackson's termination? 2 . Jackson interrupted the meeting and asked the teacher for her car keys. Jackson indicated that she had done nothing wrong. QUE STI O N S 1. She obtained union membership cards for her co-workers to sign. the principal was transferred to another school. Jackson confronted Fraser in the staff lounge in the presence of several teachers and educational assistants and in a loud voice told her that she did not appreciate being called at home when she was sick. T he national representative and Jackson planned to start an organizing campaign at the school after Jackson had spoken to a few other employees who she thought would also take part in an organizing drive. Jackson was offended because she was referred to so often in the minutes and she felt that some of the suggestions attribute to her were inaccurate. Fraser became concerned with Jackson's behaviour. On April 6. and the confrontation with Parker regarding the staff meeting minutes. Jackson took the teacher's car and the student she had been assigned to for the morning to her home and returned two hours later. On January 13. Assume that you are the national union representative that Jackson has contacted. Jackson was working in an open computer area with a small group of students. When Parker suggested that they should talk about the issue at another time and place. Jackson spoke to two educational assistants about the possibility of joining a union to improve wages and working conditions. What does the employer have to do to justify Jackson's termination? 3. and reiterated that she would not be attending staff meetings in the future. Fraser and the superintendent decided that Jackson should be terminated. and swore and gestured at T homas with a pair of scissors that were at the workstation. Thomas left the area. the company discharged Rano. to tell her to report to the inspection area when she arrived for work. her supervisor. relish. The company discharged Rano later the same day. what would your decision be? Provide reasons for your decision. decided that another employee should be trained on Rano's regular job so that there would be a replacement available if Rano were absent. Rano became outraged. T he union filed a grievance challenging the dismissal. At the arbitration hearing. produces processed foods. The production workers of Goodtime Food Products Ltd. T homas instructed another employee who spoke the same language as Rano. Rano spoke to the shop steward. Thomas told Rano to get back to work. Employees at Clarity are covered by a collective agreement between the company and the Telecommunications Employees Union. Goodtime Food Products Ltd. T homas went to the inspection area where Rano was working. O ne year ago. Occasionally when there was not enough work.Appendix A Cases GOODTIME FOOD PRODUCTS lTD. When the company posted three openings for the job of teclu1ical advisor. A few minutes later. 45 candidates applied. are covered by a collective agreement. Rano worked at a packing station monitoring a machine that filled pickle bottles with small cucumbers. one of the employees in the bargaining unit. what arguments would be presented by the union? 2. picked up a knife that was on a workbench. She then walked a short distance to another workstation where T homas was speaking to another employee. She had worked for the company for seven years with out incident prior to the day of her dismissal. and canned vegetables. and shouted and made slashing gestures about three feet from Thomas' lower body. The company used an automated online application system to determine a short list for interviews. Ed Thomas. what arguments would be presented by the employer? 3. At the arbitration hearing. She swore at Thomas. Rano had been moved to another job inspecting bottles. after an incident in the plant. When Rano arrived for work and Battaglia told her she was being taken off of her regular job. she became outraged and swore about Thomas. Because Rano spoke very little English. QUE STION S 1. he crumpled it up and threw it in a wastebasket. T he collective agreement requires that vacancies be posted and the company has established a testing and review process to determine the successful candidates. The steward immediately prepared a grievance. Lucy Battaglia. T he system included a 355 . including pickles. If you were the arbitrator. and the arbitration hearing is next. Fifteen minutes later. When Rano and the shop steward presented the grievance to Thomas in his office. The matter has gone through the grievance process. CLARITY CALL Clarity Call is a telecommunications company providing cell phone services. On the da y of the incident. Christine. Smith applied for the nurses' aid position. The collective agreement provides as follows: 8. He or she does not provide any medical treatment or nursing care. OTTAWA HOSPITAL Rolf Smith was one of several hospital orderlies working in the orthopedics ward of Ottawa H ospital. and Peter all applied for the position and went through the online application process. including language. 3. using his limited French and sign language. Explain how you think an arbitrator would dispose of the grievance. Explain the employer's response to the union's grievance. 8. and Ramada and Peter did not achieve the cut-off score. HoweveJ. Ramada. experience. Smith filed a grievance claiming that he should have been awarded the job. Scores were calculated for the remaining candidates. but may have to communicate patient problems to a nurse. 2 . and answers call signals for assistance. a valid driver's license. The hospital serves a large number of francophone patients. knowledge of word processing. . None of them were granted an interview. Smith had managed to get by when communicating with francophone patients in the past. The position involves significant amounts of interaction with patients. the Internet and computer operating systems. Other questions were referred to as "asset questions. qualifications. Assume that you are the employer representative responsible for this matter. The collective agreement provided that " In matters of promotion. some of which related to minimum requirements for the position that were referred to as "knock out" questions. he had received a failing grade. T here is one nurses' aid on duty who moves patients ro and from beds. The knockout questions related to education. some of whom are unilingual French-speaking. T he hospital referred to a policy requiring nurses' aides in the dialysis unit to be bilingual. both times Smith had taken French proficiency tests provided by the hospital. provides snacks. and awarded the position to an employee with less seniority who spoke French and English. abilities.356 Appendix A Cases number of questions." The collective agreement also prohibited discrimination on a number of grounds. aptitude and seniority of the applicants being considered. and being able to work with minimal supervision. The formula used to calculate the scores was weighted as follows: abilities 95 percent and seniority 5 percent. and individuals with scores higher than a cut-off were granted an interview. Christine did not attain the minimum required on the knockout questions. and staff transfer appointments shall be made of the senior applicant able to meet the normal requirements of the job. Outline the basis for the union to file a grievance. Interviews were granted to employees who had less seniority than all three. T he job of nurses' aid in the dialysis unit of the hospital was posted." Applicants who did not meet the requirements for the knockout questions were eliminated.04 The Company will select the most suitable individual based on its assessment of the skills.03 To be considered an employee must meet any minimum requirements or restrictions specified in the job posting. QUE STI O N S 1. good health. They ensure that schedules are met and signs are correctly displayed. T he test used was developed after input from current inspectors had been received and an analysis of the inspector's job had been completed. and when skill and ability are equal. while Voakes had scored 68 percent. written communication skills." The agreement also contained the following management rights clause: "The Commission has and 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." Five individuals applied for the inspector job. mathematics.her first application for an inspector's job. three years' experience in the transit industry. and were not told about the test in advance. was one of the applicants. the ability to deal with the public. It was also found that he had written the same test six months earlier as part of a previous application for an inspector's job. another applicant who had less seniority but a higher test score. The job posting provided that the minimum requirements were as follows: Grade 12 education. and health and safety. demotions and transfers. What arguments might the employer make at the arbitration hearing? 3. suspend. As part of the selection process. It was later determined that Akers' score on the test had been 38 percent. He had improved his score by 22 percent. QUE STI O N S 1. discharge. promote. seniority will prevail. the right to hire. The collective agreement provides that "Seniority shall always be given utmost consideration in making promotions. problem solving. Inspectors act as lead hands and are not supervisors. Jill Akers. T he applicants were tested when they were interviewed. the Conunission gave all five employees a test they had first used for the inspector's job six months earlier. and allocate authorized overtime. the ability to make decisions. Explain the decision you expect the arbitrator to make. REGIONAL TRANSIT COMMISSION The Regional Transit Commission operates buses in a city with a population of 250 000. and the ability to walk for extended periods of time. demote and discipline any employee for just cause. What arguments might the union make at the arbitration hearing? 2 . Employees of the Commission are represented by the Canadian Auto Workers. What arguments might the union make at the arbitration hearing? 2. It included questions regarding terms of the collective agreement. The Commission posted a job opening for an inspector. Explain the decision you expect the arbitrator to make.Appendix A Cases QUESTIONS 1. deal with complaints from the public. distribute monthly passes. The position was awarded to Voakes. approve the trading of shifts by drivers. the ability to complete projects and meet deadlines. who had been employed as a full-time driver for 10 years. Voakes had not been provided with a copy of the first test or been advised about the test results. 357 . Akers filed a grievance claiming that she should have been awarded the job. What arguments might the employer make at the arbitration hearing? 3. This is a reminder that illegal drugs and alcohol are not permitted on company property at any time. . there was an incident in which a timber cutter was severely injured. including the residences occupied by employees. They live in trailers provided by the company. In the course of his work. In June 2010. A subsequent investigation determined that the employee had been smoking marijuana in his trailer prior to the accident. It has been determined that some employees are using illegal drugs including marijuana on company property. The company and the union are concerned abour the use and possession of drugs and alcohol. Individuals who have been drinking alcohol or using illegal drugs are a risk to themselves and others. Employees are flown in for 14 workdays and then flown out for 14 days off. The company hired Hank Bradford as a timber cutter in 2005.NORTHERN TIMBER COMPANY Northern Timber Company operates lumber cutting sites in remote areas of the province. This includes an employee's residence. Bradford was advised that no drugs or alcohol were permitted on company property. The company adopted this policy after it was determined that an employee who had been killed on the job had been consuming alcohol the night before an accident. There have been incidents in which employees have been found to be in possession of illegal drugs and/or alcohol on company property. The company's policy is that the use or possession of illegal drugs or alcohol on company property is cause for inunediate dismissal. Employees nmst be alert and safety conscious. T he company and the union issued a joint announcement to employees as follows: The company and union are committed to the safety of employees. Prior to being hired. Bradford operates a chain saw and other potentially hazardous equipment. They are covered by a collective agreement between the company and the Timber Workers Union. and outline the argu ment that could be made to an arbitrator to uphold the termination. 2. Bradford stated that he had been smoking marijuana for over 10 years and in fact he smoked two or three joints every day. It was found that Bradford had not been involved in any previous misconduct or health and safety violations. Outline your decision. On August 10. Assume that you are the manager responsible for this file. a decision was made to terminate his employment. They found a pipe. the management team reviewed the situation. Bradford denied that he had stolen any company property and stated that he sometimes brought tools back to his residence at the end of the workday instead of returning them to a tool crib. the termination would stand. the smell of marijuana emanated from Bradford's trailer. Prepare a notice of ter- mination that would be provided to Bradford. and together they investigated. and provide any documentation involved. and two company hand tools. Bradford allowed the security guard and health and safety officer to search his residence. Assume that you are the manager responsible for this file. the company indicated that because Bradford had violated the zero-tolerance policy.AppendLx B Grievance and Arbitration The company provided a copy of the announcement to each employee and required employees to sign an acknowledgment that they had received the statement. providing reasons. 2 grams of marijuana. The management representatives reminded Bradford about the company's employee assistance plan that was available to employees. Assume that you are the union officer responsible for this file. he sought treatment for his marijuana use and joined Narcotics Anonymous. The next day Bradford was called to a meeting with the site manager. and the health and safety risk. and the health and safety officer. 4. The union reported to the employer that Bradford had abstained from marijuana use for the previous 10 days and requested the employer to reconsider his termination. After Bradford left the meeting. The site manager suggested that Bradford had been stealing company tools to pay for marijuana . The health and safety officer asked Bradford how often he smoked marijuana. Within a week of Bradford's termination. Assume that you are a union steward whom Bradford has contacted after receiving a termination notice. T he security guard reported this to the health and safety officer. a security guard thought he smelled marijuana in the area of Bradford's trailer. Bradford admitted that the marijuana found in his residence was his and he had been smoking it. Bradford's supervisor. however. 5. In reply. 359 . At the meeting. Proceed as instructed or complete the following: 1. Assume that you are the arbitrator in this situation. Outline how you would proceed. and outline the argument that could be made to an arbitrator to have Bradford reinstated. including one in the morning before he went to work. When Bradford was reminded that company policy required all tools to be returned at the end of each workday. When they knocked on Bradford's door and he opened it. 3. Bradford signed an acknowledgment that he had received the statement. he did not reply. T he casino opened five years ago. located in the capital city of the province. table games. The rise in the value of the Canadian dollar and the opening of new casinos in the United States have reduced the number of U. roulette. TI1e current agreement expires on the date specified by your instructor.S. and a restaurant/bar. T he casino has three revenue-producing departments: slot machines. the number of games a dealer can run determines the pay rate. The job classifications are shown in Schedule A of the collective agreement.DIAMOND CASINO You will be provided with further information and instmctions regarding an analysis and a possible renewal of the collective agreement provided below between the Provincial Lottery Corporation and the Gaming Employees Union. Assume that the casino operated by the corporation is located in the capital city of your province. including blackjack. running three 8-hour shifts employing 400 people. . and baccarat. It appears that the novelty of the casino has worn off and new marketing efforts may be required. The casino operates 24 hours a day. which is expiring shortly. which was certified four years ago. and employees at the casino are represented by the Gaming Employees Union. As shown in Schedule A. The parties negotiated their first collective agreement. patrons. Attendance and revenues have been declining over the term of the agreement. Dealers may be trained and experienced in one or more table games. BACKGROUND T he Provincial Lottery Corporation operates the Diamond Casino. poker. Another employee was extremely upset when her mother died because she had to travel 2000 km each way. Temporary Shift Supervisors The agreement provides that employees in the bargaining unit may temporarily work as shift supervisors. Some employees think that they should receive a voucher to cover the cost of a meal in the casino restaurant. In the last round of contract negotiations. T he employer has interpreted this provision to mean that employees do not accumulate seniority or pay union dues while serving as a shift supervisor. Employee Appearance As part of its dress code. the same employee was absent because he was attending the funeral of a cousin. Several employees have been disciplined for absenteeism. the employer scheduled more employees to work each shift than it currently does. The union filed a grievance. and the allowance has not increased over the term of the agreement. the union filed a grievance. When the employer directed employees to remove the pins. Absenteeism and Turnover Absenteeism has been a problem. Subsequently. Work Done by Management When the casino first opened. however. and some employees are now wearing the pins. The union is concerned because the $5.00 meal allowa nce when employees work overtime is not sufficient to cover the cost of a meal in the casino restaurant. The union wants the leave to be increased. The casino has found that absenteeism is 50 percent higher than normal on days before and after public holidays. The union eventually withdrew the proposal. the union put forward a demand that employees on temporary shift super assignments would accumulate seniority and have dues deducted from their pay. The casino suspended the employee for three days. Supervisors have been used by the employer to cover employee breaks and on occasions when employees leave early. Meals Neither party is pleased with the current contract provisions relating to meals. and she was advised that the agreement provided her with only two days' leave. the suspension was reduced after the union filed a grievance. On another occasion employees started to wear dime sized union pins. T he employer is not pleased with the overtime provision because there is no minimtun munber of overtime hours that must be worked. Some employees have worked only a few minutes of overtime and are still entitled to the meal allowance. the employer adopted a rule prohibiting male security guards from wearing earrings. In one case. Many employees who have quit have given only a few days notice. Several managers strongly feel that the pins are inappropriate.Appendix C Co ntract Negotiation Simulation ISSUES ARISING UNDER THE CURRENT AGREEMENT A number of issues have arisen during the administration of the current three-year collective agreement. Some managers would like to see the contract 361 . The union is concerned that the employer is not scheduling a sufficient number of employees for some shifts and is using the supervisors to do bargaining unit work. an employee who did not come to work because he was attending a friend's funeral was given a written warning. An arbitrator upheld the grievance. Maternity Leave Both parties are concerned with the current provisions relating to maternity leave. and an arbitrator found that the rule was unreasonable and ordered that it be deleted from the policy. 01 The employer shall deduct from the wages of each employee in the bargaining unit the amount of union dues as determined by the union. and policies to be observed by employees. regulations. regulations.Management Rights 3. The employer is considering the possibility of contracting out some of the work done by employees in those departments. The w1ion acknowledges is that it is the exclusive ftmction of the employer to discipline or discharge probationary employees.02 With an employee's agreement. 1.362 Appendix C Contract Negotiation Simulation provide that an employee could be required to commence a maternity leave when they think that a pregnancy interferes with the employee's work. FUTURE 0 EVEL O PM ENT S T here have been informal discussions between the union and the employer relating to the work done by the maintenance and security departments.02. to maintain order and efficiency in its facilities. save and except Shift Supervisors and persons above the rank of Shift Supervisor. LOCA l 1 ARTICLE 1 . the methods and schedules of performance and equipment to be used. reasonable rules.Union Security 2 . the work to be performed. ARTICLE 3. provided such action is not motivated solely by bad faith and recognizes that such discipline or . and policies shall not be inconsistent with the provisions of this agreement. Such rules.01 shall be remitted to the union within a reasonable period of time after the deductions are made and shall be accompanied by a list of names of all employees from whom deductions have been made.Recognition 1.01 The Employer recognizes the Gaming Employees' Union. AND THE GAMING EMPlOYEES' UNION . to determine the location of its facilities. and remit the dues to the union in accordance with article 2 .02 The amounts deducted in accordance with article 2. and alter from time to time. Local1 as the sole bargaining agent for all employees of the Diamond Casino in the City of _________.01 The union recognizes the right of the employer to operate and manage its business in aU respects. COllECTIVE A GR EEMENT BETWEEN PROVIN CIAl LOTTERY CORPORATION. T he union further acknowledges that the employer has the right to make. All changes in the posted rules and regulations and policies must be discussed with the union prior to being implemented. 2. he or she may fill the role of Shift Supervisor on a temporary basis. The Employer will provide the union with copies of all new policies and changes to existing policies prior to implementation. Economic forecasts for the first year of the new collective agreement indicate that inflation is expected to range between 1 and 2 percent. ARTICLE 2. conventions. 6. 6. 7.An employee who has a grievance shall.01 Step I . or reasonably should have become aware of. within five calendar days of the date he or she became aware of.Human Ri ghts 4. provided that the operations of the employer are adequately maintained.08 T he employer shall supply the union with a glass-enclosed locked bulletin board in each staff break room. ARTI C LE 7 .Grievance Pro ce dure 8. attending any other meeting called by management. and seminars. ARTICLE 8.Union Business 6.02 A union representative shall not suffer any loss of pay as a result of undertaking the following responsibilities during their regularly scheduled work hours: investigating a grievance.04 T he stewards shall obtain permission from their manager before leaving their work area for the purposes of union business.Di sci pline 5. ARTI C LE 5 .06 A leave of absence without pay and with accrual of seniority shall be granted: (a) to employees representing the union at conferences. Such permission shall not be unreasonably withheld.02 An employee who has a disciplinary record placed in their personnel file may request in writing the removal of the record if 36 months have passed since the disciplinary record was issued and no other subsequent disciplinary records have been issued.02 Upon successful completion of the probationary period.07 A leave of absence without pay and no accrual of seniority shall be granted: (a) to employees elected to public office.01 The employer shall not discriminate against any employees and confirms that it will comply with provincial human rights legislation. 6. 5 . ARTICLE 4 .Appendix C Co ntract Negotiation Simulation discharge is not subject to the grievance/arbitration procedure set out in this agreement.01 The employer shall have the right to discipline employees for just cause. 363 . subject to the operational requirements of the employer being met.01 N ew employees shall be on probation for three months from the start of their employment.05 An employee shall not suffer any loss of pay as a result of meeting with management to deal with a grievance during their regularly scheduled hours. (b) to employees elected to the union's national executive.03 The union stewards may investigate and process grievances during regularly scheduled hours of work. 6. seniority shall beeffective retroactive to the date of hire. ARTI C LE 6 .01 The union shall elect a body of officers and stewards and will advise the employer in writing of the names of the individuals representing the union.Probationary Employees 7. 6. 6. except where such bad faith can be established. (b) to up to three representatives on the union's bargaining committee to carry out negotiations with the employer. meeting with management to deal with a grievance. 6. Within 14 calendar days of the meeting at Step I.04 In the event that the time limits prescribed in this grievance procedure are not complied with.02 T he arbitration board shall hear the parties and shall issue an award in writing. The recipient of the notice shall within 14 calendar days inform the other party of the name of its appointee to the arbitration board. A group grievance is a difference involving more than one employee. it may be advanced to Step III. Step III . or should reasonably have become aware. ARTI C LE 10 . . At the request of either party. the decision of the chair shall be the decision of the arbitration board. Step IV . appoint a third person who shall be the chairperson. At the request of either party. of the issue giving rise to the grievance. Policy grievances shall conunence with Step III and shall be filed within 14 days of the date a party became aware.06 Tite union may submit group grievances. a meeting shall be held at this Step. the grievance shall be deemed to be abandoned.Within 14 calendar days of receipt of the Step II response.01 The parties agree that during the term of this agreement there shall be no strikes or lockouts. The two appointees shall within 14 calendar days of the appointment of the second of them. 8.Se niority 10. (b) retires. in the case of an employer grievance. (c) is dismissed for cause and is not reinstated.364 Appendix C Contract Negotiation Simulation the event prompting the grievance. and the parties shall each pay one-half of the expenses of the chairperson. 8. ARTI C LE 9 -Strikes o r Lockouts 9. a meeting shall be held at this Step.If a settlement is not reached. the union shall submit the grievance in writing to the General Manager. a formal grievance shall be submitted in writing to the Operations Manager. first discuss the matter with his or her Department Manager and attempt to resolve the grievance informally.01 Seniority is defined as the length of an employee's continuous employment. 10. Step II .02 Seniority rights and employment shall cease when an employee: (a) res1gns. In the event that it is not resolved. If the grievance is not settled at this stage.03 Each party shall bear the expense of its respective nominee to the arbitration board. may refer the grievance to an arbitration board by providing the other party notice in writing within 14 calendar days of receiving the written response at Step III.05 Either the union or the employer shall have the right to submit policy grievances arising from the interpretation and application of this agreement. T he decision is final and binding upon the parties and upon the employee(s) affected by it. When there is no majority decision. 8. The Operations Manager shall reply in writing within 14 days of receiving the grievance. The decision of the majority of the board is the award of the arbitration board. 8. Tite notice shall contain a statement of the grievance and the name of the party's appointee to the arbitration board. 8. it may become a formal grievance at Step II. provided it is submitted in writing in accordance with the following provisions. the union or the employer. 10. In the event the employee proves unsatisfactory in the position during the trial period. the recall shall be done on the basis of seniority within an employee's classification. The employer shall determine the employees to be laid off considering the seniority and ability of employees as provided in tlus article.02 T he employer shall lay off employees in reverse order of seniority.05 When employees are recalled.01 Employees may be laid off by the employer. skill. 10. A job description may be requested by interested employees. 12. skill.03 If two or more employees are considered by the employer to be relatively equal in knowledge.04 An employee who accepts a new position shall be on a trial period of three months. skill. provided they have the necessary knowledge. An employee fotmd to be unsuitable may grieve the decision commencing at Step III of the grievance procedure. and ability to do the job they move to. and ability required for a position. It is the responsibility of the employee to provide the employer with a current phone nwnber. Employees shaU respond to a recall within five calendar days. or (e) fails to respond to a call back from the employer within five days. 365 . at his or her former salary.Layoff and Reca ll 12.Appendix C Contract Negotiation Simulation (d) is laid off for a period in excess of 12 calendar months. The decision at Step III is final for such grievances and is not arbitrable. 12.03 A seniority list will be prepared by the employer by January 31 of each year based on service to and including December 31 of the previous year. T he notice shaU specify the knowledge. and a copy will be provided to the union. he or she shaU be retu rned to his or her former position.Job Posting 11.04 Employees who are laid off are entitled to two weeks' notice. ART IC LE 1 2. 12. A newly hired employee could be released. Employees displaced may retain their employment by bumping junior employees. or if the employee finds he or she is unable to perform the duties of the new position.03 Employees who are laid off may retain employment by bumping junior employees. 11.04 If two or more employees have the same start date.06 On a recall. 11. and ability required for the position. provided that they have the required knowledge. 11. The list will be posted in all break rooms. Employees must indicate if they intend to exercise this right within two days of being notified of a layoff. the order of their seniority shall be determined by their birth dates. and the termination of employment. Failure to respond to the recall within five days wiU result in the employee's name being removed from the recall list. Subject to satisfactory performance the position shaU become permanent after the trial period of three months. the employer shall notify the employee by phone. and ability to do the job that they move to.02 Applications for posted positions shall be submitted to the employer within eight days of the job being posted. the employer shall refer to seniority as the determining factor. The older employee shall be deemed to have the most seniority. 12.01 All vacant or new positions in the bargaining unit shall be posted for six calendar days. Any other employee promoted or transferred because of the re-arrangement of positions shall be returned to his or her former position at the former salary. 12. ART IC LE 11 . skills. 02 Employees are required to purchase required uniforms. (b) Vacation requests submitted on or before January 1 shall be approved on the basis of classification seniority and the employer being able to meet its operational requirements. . 15. 15. the employee may take an additional day's vacation at a later date of the employee's choice.366 Appendix C Contract Negotiation Simulation ARTICLE 1 3 .03 Employees are responsible for the cleaning of their uniforms. (b) An employee who has completed one to five years of service at the conclusion of the vacation year is entitled to two weeks' vacation leave.03 Annual vacations shall be scheduled as follows: (a} All employees shall submit their requests for vacation leave on or before January 1 of each year for vacation to be taken during the year. T he vacation leave is to be taken in the next vacation year. 15.Severance Pay 13. ARTICLE 15 -Vacations 15. Employees are entitled to vacation pay when they take their vacation equal to 4 percent of their wages in the vacation year. (c) An employee who has completed six to nine years of service at the conclusion of the vacation year is entitled to three weeks' vacation leave. Uniform purchases may be processed through payroU deductions.Uniforms 14.01 A vacation year is equivalent to the calendar year. 14. The cost of the uniform to employees shall be equivalent to the cost incurred by the employer. 14. Employees are entitled to vacation pay when they take their vacation equal to 4 percent of their wages in the vacation year. T he vacation leave is to be taken in the next vacation year. Employees are entitled to vacation pay when they take their vacation equal to 6 percent of their wages in the vacation year. an additional day's vacation may be added to the vacation with the agreement of the employee's immediate supervisor.01 Upon termination of employment. T he vacation leave is to be taken in the next vacation year.04 Where a statutory holiday fa Us within the vacation period of an employee. employees shaU be entitled to pay as provided in provincial employment standards legislation.02 Employees are entitled to vacation leave and pay as follows: (a} An employee who has completed less than one year of service at the conclusion of the vacation year is entitled to leave at the rate of 4 percent of regular hours worked in the concluding vacation year. ARTICLE 14. Failing such agreement. (d) An employee who has completed ten or more years of service at the conclusion of the vacation year is entitled to four weeks' vacation leave. Employees are entitled to vacation pay when they take their vacation equal to 8 percent of their wages in the vacation year. T he vacation leave is to be taken in the next vacation year. Requests submitted after January 1 may be granted subject to the operational requirements of the employer.01 Employees are required to wear the uniform provided for in the employer's policies. The employee's sick leave credit shall be reduced by the number of hours paid by the employer when the employee is absent.Appendix C Co ntract Negotiation Simulation ARTICLE 16 . an Employee shall be entitled to four special leave days without loss of pay. ARTICLE 20.01 Unpaid leaves of absence may be granted when it is deemed reasonable by the employer. mother-in-law.Pers ona l Leave 20. through other means. have been foreseen by the employee and which requires the employee's immediate attention or makes the employee's attendance 367 . ARTI C LE 19 .01 Each calendar year. child. father-in-law.Bereavement 17. 19.Maternity and Parental Leave 18. 20. or to arrange in advance time off work when needed through other means such as shift trades. ARTICLE 17 . parent.0 1 T he parties agree t hat the holidays provided in provincial employment standards legislation shall be holidays for the purposes of this agreement.Sick Leave 19. time off in lieu. sister. as either family leave or pressing necessity leave. ARTICLE 21 -S pecia l Leave 21. (ii) Pressing Necessity Leave A pressing necessity is a sudden or unusual circumstance that could not.02 Sick leave credits shall accumulate at the rate of three hours per 75 hours worked.Holidays 16.02 Personal leaves of absence are only available to employees who have completed one year of service. common-law spouse. brother.01 Employees are entitled to sick leave when they are unable to work because of illness or injury as provided in this article. Employees are required to provide the employer with notification of leave requirement as early as possible after determining the need. and grandchild. An employee who works on a holiday shall be paid double his or her regular rate of pay. or vacation. to change the time when they need to be in attendance. (i) Family Leave Family leave is intended to provide employees with a way of attending to the health needs of members of their immediate family.01 Employees shall be entitled to two days' leave upon the death of a member of their immediate family. Immediate family means a spouse. It is for use when the employees' attendance is necessary and they are unable.01 Employees shall be entitled to maternity and parental leave as provided in provincial employment standards legislation.04 Employees who will be absent for any reason shall notify the designated employer representative at least three hours prior to the commencement of their shift.03 T he employer may require the employee to provide a medical certificate from a qualified practitioner that the employee was unable to work as a result of illness or injury. 19. grandparent. by the exercise of reasonable judgment. 19. ARTI C LE 1 8. 02 When the employer intends to introduce technological change. ARTI C LE 23. the employer may require employees to work overtime to meet operational requirements.04 Employees will be off at least 11 hours between shifts. eight-hour shifts per week. TI1e employer shall not incur any additional cost as a result of a shift exchange. exclusive of unpaid breaks.04 Employees who work overtime shall be allowed a meal allowance of $5.In carceration Leave 22. the employer will not penalize the employee under the employer's attendance policy where the incarceration duration is confirmed to be a maximum of ten calendar days.Overtime 23. This may include sudden or unusual circumstances involving a need to attend to members of their inunediate family. T he call-ins will be offered to part-time employees in the job classification required on the basis of seniority. ARTI C LE 22 . technological change means the introduction of new equipment into the employer's operation. . it will provide the union with 90 days' notice prior to the date the change is to be effective.01 For purposes of this article. Each shift will have a half hour unpaid meal-break. Part-time employees may be scheduled to work less than eight-hour shifts.05 Employees may exchange shifts with the approval of their manager. exclusive of any unpaid breaks. Overtime shall be allocated to those employees on the list on the basis of their classification seniority. 24.02 The overtime rate shall be 1-1/2 times the employee's regular rate of pay and shall be paid on hours worked in excess of 8 hours per day. ARTICLE 25.03 Part-time employees may be called in to fill in shifts.03 TI1e employer shall establish a voluntary overtime sign-up sheet for each day.Te chnologi ca l Change 25. 22. 24.01 An employee convicted of an Offence under the Criminal Code arising out of the operation of a motor vehicle and who is absent from work as a result of such conviction for a period not to exceed 12 consecutive months shall be treated as though he/she is on a leave of absence without pay or benefits.368 Appendix C Contract Negotia tion Simulation at work impossible.01 T he employer may require employees to work overtime.Hours of Work and Scheduling 24. If there are insufficient volunteers to work overtime. 23. ARTI C LE 24.01 Where an employee is incarcerated pending charges or arraignment and subsequently scheduled for work. 24. however.02 The employer will post a 28-day schedule two weeks in advance for both full-time and part-time employees.01 Full-time employees shall work five. in no event will a shift be less than three hours. 24. which affects the security of employment of a significant number of employees. 23.00. provided that the employee has the knowledge and skills required for the work available. 23. and on hours worked in excess of 44 hours per week. coJtunencing on Sunday. An employee incarcerated under this clause will be considered on an incarceration leave of absence for a period not to exceed 10 calendar days. 25. Contracting Out 2 7. The written request for review must be received within 10 days of the employee having been provided with a copy of the performance and development form and provide the details of the alleged inaccuracies.04 Minutes of health and safety committee meetings shall be posted in staff break rooms. T he employee shall have the right to place his or her comments on the performance and development form. A review under this process is non-grievable.Duration of Agreement 30. In the third year. ARTICLE 23. ARTI C LE 28.02 A health and safety conunittee consisting of at least three union repre sentatives and three employer representatives shall be established.02 If the employee perceives the performance and development form is an inaccurate assessment. the employer will provide the union with 120 days' notice. 20xx. In the second year of the agreement. which are alleged to be unfair or inaccurate. 28.01 This agreement shall be effective for three years. T he parties shall meet to discuss the reasons and possible alternatives to the proposed contracting out and shall attempt to avoid job losses through retraining and/or reassignment of employees.01 When the employer proposes to contract our work and there will be a layoff of employees in the bargaining unit as a result.Pe rformance Appra isal 28.H ealth and Safety 26.01 The wages for the first year of the agreement are set out in Schedule A. 26. 26. ARTICLE 27.03 A copy of the employee's performance evaluation shall be placed in the employee's personnel file.ee shall carry out the duties assigned to it by provincial health and safety legislation.01 T he employer and the union recognize the importance of health and safety and agree to cooperate to prevent accidents and establish a healthy workplace.Wages 29. 26. wages will be increased by 3 percent over the level in year two. the employee will be provided with an opportunity to read the assessment before the employee is required to sign the formal assessment indicating that he or she has read it. from _ _ _ _ _.03 T he employer shall provide all available information relating to accidents and occupational diseases that occur in the workplace. wages will be increased by 2 percent.Appendix C Co ntract Negotiation Simulation The parties will meet to discuss the steps to be taken to assist the employees who could be affected. 20xx to . 28. The general manager shall meet with the employee in an attempt to resolve their concern(s).01 Where a formal assessment of an employee's performance is made. the employee may submit a written request to the general manager to initiate a review of the contents of the form. 369 . ARTICLE 26 . The comrnitt. ARTI C LE 29. 50 13.52 12.75 14.88 19.09 17.88 15.48 12.70 15 .00 19.30 16.98 14.13 13.50 18.90 11 .00 14.28 23.99 18.75 Slots Slot Technician Slot Attendant Change Attendant Dealers Dealer 1 (one game) Dealer 2 (two games) Dealer 3 (three games) Dealer 4 (four or+ games) Finance Count A ttendant Cashi er A uditor Kitchen Chef Cook 1 Cook2 A ide Restaurant Host Bartender Server Guest Services Door Person Coat Attendant Maintenance janitor Lead Hand G rou ndskeeper Repair Perso n Information Technology Computer Technician A udio Visual Techni cian Systems A nalyst Purchasing and Recei vi ng Buyer Purchasing Clerk Stores Clerk Office Receptionist Mai I Attendant Sched uling Clerk Marketing Clerk Marketing Coordinator Security Security Officer Security Coordinator .00 24.00 14.97 17.47 16.90 11 .00 17.19 21.88 17.20 17.25 14.40 11 .30 16.90 18.75 16.00 15.80 16.00 11 .13 16.50 19.09 17.00 17.65 13.63 14.40 16.13 18.75 14.19 11.31 19.00 14.70 13 .78 16.15 14 .85 16.27 13.50 17.00 15.00 19.19 18.00 19.06 16.80 15.13 18.50 21.00 15.98 11.82 23.75 17.00 21.44 17.58 20.00 17.58 17.88 14.30 13.50 19.88 19.32 17.13 26.63 17.75 17.82 11.25 12.75 1 5.50 14.20 11.52 20.00 15.13 13.31 14 .63 17.63 16.88 19.13 14.15 21.00 16.75 15.92 15.25 18.97 15.75 18.70 12.10 16.50 10.75 17.42 16.00 15.88 18.93 13.50 15.60 12.370 Appendix C Contract Negotiation Simulation Schedule A Wages Classification First 1 3 weeks From 14 to 52 weeks After 52 weeks 18. 462 491.016.888 109.545 184.203 94 5.458 36.340 34.175 272.303 121 .342 341.932 20.462 491.340 34.458 12.454 63.524 818.818 43.201 Restaurant Chef Cook 1 Cook 2 Kitchen A id Host Bartender Wait Staff Total D irect Staffing Costs 2.538 66.Appendix C 371 Co ntract Negotiation Simulation You may be referred to the foUowing income statement for the casino. 180.121 19.002 903. 175 272.596 89.402 Indirect Staffing Cost s: Allocat ed to the three departments 1/3 per department Finance Count Attendant Cashier Aud itor Guest Services Door Person Coat A ttendant Maintenance Janitor Lead Hand G roundskeeper Repair Person Information Technol ogy Computer Techni cian Aud io Visual Tech.932 20.676 146.676 146.596 89.303 363.349 2.670 104.175 272.636 336.212 112.203 945.101 64.212 93. 161 30. 120 926.538 198.101 78.818 43.861.815 31 .796 6 1.212 112.932 20.101 64.810 194.458 12.375 31.782 23.302 193. Systems analyst Purchasing and Recei ving Buyer Purchasing Clerk Stores Clerk Offi ce Receptioni st Mail Attendant .201 463. 538 66.060.101 236.340 34.911 388. 151 2 1.346 963.545 184. 303 121 .346 963.909 12.1 20 926.212 31 .121 19.151 21. Diamond Cas ino Income Statement For the Year Ending December 31 .670 104.750 48.911 388. 212 109.161 30.019 102.781 11 3.010 66.212 31.502 104.161 30.670 312.815 31.445 95.221 852.483 90.454 130.221 852.781 113.358 402.810 194.002 903.212 112.303 121.364 59. 121 19.068.060 Gaming Tables Dealer 1 Dealer 2 Dealer 3 Dealer 4 463.101 78.101 64.863.873.815 31.804.151 21.826 6.349 7.781 113.060 402. 2XXX Revenues: Expenses: Direct St affing Costs: Slot Machines Slots Techni cians Slot attendants Change attendants Sl ot M achines Gaming Tables Restaurant Total Casino 18.636 2.615 78.818 43. 670 11 .441 21. insurance.670 11. T he income statement shows revenue and expenses for the three areas of the casinos operations.594. T he direct staffing costs show the costs for employee compensation in each of the three areas of operations.323 4.272 34.272 34.611.817 102.058 36.010 34.272 34.381.783.195 14.353 18.705 .980 21.670 11 . 3.594. for the most recent year.960.705 13.793.353 3.798 Other Expenses and Ove rhead Allocated 1/3 to each depa rtme nt Net Income (Loss) 4. and utilities that have been divided equally between the three areas of operattons.101 1. 557 4.793.262 327. and the restaurant. T he other expenses and overhead show additional costs including depreciation. gaming tables. 4.817.099.322 Securit y Security Officer Security Coordin ato r Total Indirect Staffing Costs: Net Income Before Other Costs 327. slot machines.579. .303 4.793.44 1 21'980 21. 2 . T he indirect staffing costs are shared costs that have been divided equally between the three areas of operations.543.441 65.305.372 Appendix C Contract Negotiation Simulation 21.510 981.353 15.027 327.939 65.980 21.11 4 22.684 Sched uling Cle rk Marketing Clerk Marketing Coordinator 1.1.250.705 10.101 1.594. 101 1. 3. subordinates and internal clients. 1. Develops policy and governance requirements to safeguard the confidentiality of H R information ensuring compliance to applicable legislation and regulations. 6. The RPCs that are supported in the text are listed here. 91. Develops procedures for the defensible termination of employees. 32. 89. Advises clients on matters of sub-standard performance and discipline. goals. 96. Develops and maintains the trust and support of collaborators including the immediate supervisor. Develops and implements a human resources plan that supports the organization's strategic objectives. Identifies and masters legislation and jurisprudence relevant to HR functions. referring to the RPC number used by the CHHRA. Contributes to the development of the organization's vision. Contributes to development of an environment that fosters effective working relationships. 29. Provides support and expertise to managers and supervisors with respect to managing people. . 90.The Canadian Council of H uman Resources Association has identified 187 Required Professional Capabilities (RPCs). workplace or employment violations. 33. 40. Leads an appropriate organizational response to formal or informal complaints or appeals related to alleged human rights. Advises on alternatives to terminations. and strategies with a focus on human capabilities. and termination. 116. Reconunends and/or initiates actions in response to known or suspected incidents of misconduct. 118. discipline. Identifies strategies for the application of appropriate corrective action. Provides advice on the interpretation of the collective agreement. Defines. 113. 107. Develops policies and procedures for ensuring a respectful and inclusive workplace. Prepares the organization for collective bargaining. . Collects and presents information required for decision-making in the bargainmg process. 112. Formulates bargaining strategies consistent with the short and long-term needs of the organization. 109. 104. Provides consultation and risk assessment in arbitration. Analyzes and provides advice on employment rights and responsibilities. Researches. 100.374 Appendix D Canadian Counci l of Hun1an Resources Associations' Required Professional C1pabiliries 98. 117. 115. 102. 110. Takes appropriate actions at the organizational level in response to known or suspected complaints and conflicts . and implements HR policies. 111. Provides advice on the establishment. Anticipates and prepares the organization for work disruptions and return to work.chrp. 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Allen Ponak. 16. • Public Sector Collective Bargaining in Canada. • Relations Indtt. p. no.strial Relatiotts." in Canadian Labour and Emplo)'mcnt Relations. accessed May 14. 38. 40 (2001). 1998 (Toronto: lancaster House. Ani! Verma.strielks.J in Cam1da) 4th cd. no. 35. 26 (2005). joumal of Labor Research." Labour Arbitration Yearbook. 381 Re City of Waterloo and Canadian Union of P11blic Employees. Peter Berg. vol. 57. "E. vol. 48 (1993).R." Relations Industrielles. job Control UfltOflism vs. 3 (2002). 1 (2002) 31 http://www. Group-Based Incentives.x. vol. Ani! Vccma.tmagcmcnt Jnuovatiou in Canada (Ottawa: Minister of Supply and Services) 1994).•ww.s Ind11strielks. 6. . 2001). Local1542. I (Spring 2002). 681. 27.U.strielles. 463. 44.B. 31.ca/indc. Anil Verma and Daphne Gottlieb Taras. Anil Verma. Broadcasting Division. Innovation nnd Change in Labour Organizations in Canada: Results of the National 2001-01 HRSDC Survey. val. 21.. William Cooke. Richard Cha)'kows~ "Adap<ation Within the Traditional Industrial Relations System: The Development of Labor Relations at Inoo 33. 39. 1999). O N: IRC Press. vol." Industrial and Labor Relations Review. john O'Grady.lations Indu. vol. 31. vol.R. and Company Performance: A Union-Nonunion Comparison. Bur . Terry Wagar. cd. Lautsch." j11st Labo11r. "Long-Range PlaMing in North American Unions: Preliminary Findings." Rt. p. "Product Quality Improvement Through Emplo)'ee Participation: The Efkcts of Unio nization and Joint Uniorrf\1anagcment Administration.. "Missed Opportunities and Forgotten Futures: Why Union Renewal in Canada Has Stalled" in Trade Unio11 Revitalizatiou: Trends aud Prospects in 34 Countries. vol. "Employee Involvement in the Workplace. vol. "Decision-Making in rhe Workplace: A Union Viewpoint. Pradecp Kumar and Gregor . 22.justlabour.M:anagcmcnt and HRM Policics. Pradccp KumaL "'Wither Unionism: Current State and Future Prospects of Union Renewal in Canada.E. 4. 401. 29 (1998).opseu. http://v.. 594. 46 (1992). Saul Rubinstein. 2007). Hwnan Resources Dc:vclopmc:nt Canada. 250. 34. p. "Employee Participation Programs. The Survival and Death of High Involvement Work Practices. (2nd) 110. 28 ( I 989).lvlurra)'. 27 C." HRM Research Quarterly. 32. 36. 29.ting Corporatio11 and C.·ol.. 4 (2004).yorku. 119. 59. 28 (1989). "Unionism in Canada and rhe United States in the 21st Century: The Prospects for Revival. 50 LA. and Norman Solomon. Gil A. 43. "Joint Participation Prosrams: Self-Help or Suicide for Labour?" Industrial Relations. Paul Clark. 41. 23. 189. Craig Phclcn (New York: Peter Lang. 415. 25. Charlotte Yates. "Joint Participation Prosrams: Sclf·Hclp or Suicide for Labour?" Industrial Relations.orglcommittees/equiry/PradcepKun>ar WhithcrUnionism. 42.' Relations Indu. 54 (1999). .oc.pdf 40. (1994). (4th) 197. Ltd. "What Do Unions Do to the Workplace? Union Effects on . 37. lndliStrial and Labor Relations Revrew.Endnotes 18. Hwnan Resources Development Ca nada. 19. 28. Colvin. no. "Workplace Change and Continuous Bargaining: Sasbtoon Olcmicals Then and Now.P. Lois Gray.. 1994)."<panding Labour's Horizons: Union Organizing and Strategic Change in Canada. 56. no."(june 2008 ). 76. 01arlotte Yates. Hwnan Resources Development Canada. ON: IRC Press. 4. Canadian Broadca. Labottr-M. Labour-Management JnJtovatioll in Canada (Ottawa: Minister of Supply and Scrvi~s. 405. 26. the N ew HRM Model (Kingston. vol. S. Terry Wagar. • A Different Kind of Union: &lancing Co-Management and Rc:prcSientation. 179. •Considering Labour Managerrn:nt Relations Issues: Are the Views of Unions and Emplo)"<:r5 AU That Different?" Workplace Gazelle. • Relatio1. Yonatan Rcshef and Kay Stratton-Devine.p. •The Relationship lxrwcen Emplo)'cc Involvement and Workplace Dispute Rcsolurion. 57. 54 ( 1999).. vol. Buzz Hargro. vol. p. vol. Ka)' Gilbert... • lt~dustrial Relations. 169. 5 I 7. "The Effect of Formal Versus Informal Job Security on Employ<:e Involvcrrn:nt Prosroms." Contract a11d Conrmihnent: Employment Relations in the New Economy (Kingston.· Industrial Relations. Preuss and Brenda A. 47 (1994).n jourual of Labor Resl'orch. Labour-Mnnogement Innovatio11 in Canada (Minister of Supply and Services. vol. 1994)."' Union-Management Re lation. no. "The Effects of High Performance Work Practices on Job Satisfaction in the United States Srcellndusrry. "'Administrative Practices: A Comparative Analysis. 1995). 20. 34. 1998). Ill. vol.phplpagc=rocS(volumc= I 30.C. Joseph Rose and Gary Chaison. 56 (200 1). Alexander J." Relations Indu. 24.strielles. (Toronto: Pearson Education Canada. Louise Clarke and larry Haivcn. "Seemed Like a Good Idea.L. 261 acconunodarive relationship. 229 BFOQ. 270 Alberta Federation of Labour.18. 223. 21 382 B back-re-work legislation. 123--124 bargaining power. 210-211 bargaining units. 36-37. 68 c Canada. 35.156 managerial exclusions. 148.36. 7 4 Auromorive Investment Srraregy. 17. 150 rhird-party assistance in conrracr disputes. 245 arbirrarors. 17 3. 206 unionization of. 9. 24. 278-280 cosr of. 182 British Columbia Courr of Appeal. 53. 56. 312. See also labour relations legislation appropriate bargaining unir. 88. 245.225 bargaining srrucrure. 101. 20-21 high-performance work systems. 85.90 . 243 argument in rhe alrernarive. 166 AT&T Canada. 284. 21 governmenr assistance.191 union effect.149 occupational exclusions. 261 Algoma Steel. 244 articles of collective agreement. 59 alcohol dependency. 123 variables affecting. 154-155 managerial exclusions. 60 American Federation of Labour (AFL). 324 airline industry. See bona fide occupational qualification (BFOQ) bona fide occupational qualification (BFOQ). 242 mediarion-arbirrarion.124 arbirrabiliry. See also unions in Canada divided jurisdiction. 115.ollecrive agreement. 148. 151 certification procedure. 63. 63 Alberta Human Rights.282 banking industry. 23 agreed sraremenr of facrs. 39. 245. 297.20 economic policy. 68 "6 and 5" program. inreresr arbitration. 209 Bell Canada. 123. See also grievance and arbitration process. 326 bereavement leave. 292 accommodation. 281 narure of. 19. 209 inregrarive bargaining. 210 automobile industry. 70 bumping. 185.305 British Columbia Nurses Union. 154 cerrificarion procedure.299 union discipline. 194 Beyond the National Divide: Regional Dimensions of Industrial Relations . 165 British Columbia Labour Relations Code. 246 righrs versus inreresr. 251 remedies. 214 bargaining types arrirudinal structuring. 7 3 appropriate bargaining unir significance of. 245 arbitration. 33 and union membership.40 British Columbia Federation of Labour (BCFL).212. 211. 243 for conrracr disputes. 23 aging workforce. 18 British Columbia Labour Relations Board. 251. 97. 26.210 inrraorganizarional bargaining. 39 benefits in c.A absenteeism. 243 Air Canada.246 decisions.285 bargaining unir work.212 actors/parries in labour relations. 210 distributive bargaining.174 A Behavioural Theory of Labor Negotiations: An Analysis of a Social Interaction System (Walron and McKersie).256 inreresr arbirrarion. 32 Alberta Labour Relations Code. 243 business agent. 37.209 bargaining reams. 246--247 defined. 123. 29. 77 British Columbia Teachers' Federation (BCTF).313 and mikes.10 age discrimination and. 73. 186 burden of proof. 41 British Privy Council. 268. 169 disciplinary issues and ourcomes. See also labour relations legislation appropriate bargaining unir. 148 occupational exclusions. 242 arbitrators. 58.64 British Columbia Human Rights Code. 263. 2. 206. 209.30 economic dependence on rhe Unired Stares. See also appropriate bargaining unir in public secror. 298. 190. 281. business unionism. 32 British Columbia Human Righrs Tribunal. mediarion-arbirrarion arbirrabiliry. 26 arrirudinal srrucruring. 4 Beyond the Walls of Conflict: Mutual Gains for Unions and Management. Citizenship and Multiculturalism Act. 150 rhird-parry assistance in conrracr disputes. 211. 52 of workforce.74. 155. 315. 101. 345. 352. unfair labour practices application process. See also decertification. 61. 153. 3 Requ ired Professional Capabilities (RPCs).265. 53 consrirurion. 109. 153 managerial exclusions.126 bargaining unit. 114-115 employer identification. 154 free-speech provisions. 82 Canadian Cenrre for Living Standards. 141.163 organizing campaign. 111 . 284.241 Canadian Union of Public Employees (CUPE). 357 Reliable Auto Parrs. 110 raiding. 167. 334 CCF.334 Canada Labour Code. 69 Canadian Council of Human Resources Association. 53 cases Baysville School Board. 39 limitations of. 349. 55 contract negotiation.. labour negotiation and employee involvemenr. 166 collective agreemenr terms. 148 strikes. 351. 81 Canadian Charter of Rights and Freedoms. 181. See Co-operative Commonwealth Federation (CCF) CCL. 110 successor rights. 196. 26 Canadian Union of Postal Workers. 332 check-off. 38. 259 Canadian Labour Congress (CLC) . 76. 176 co-determination. 188-189 383 .154 decertification procedure. 2. 187 technological change. 38.352 Orrawa Hospital.188 holidays and holiday pay. 355 Hay Lake Manufacturing. Richard. 193. 57 political activity. 163 duty of fair representation. 13 collective agreement. 38 and discrimination. 30 producriviry growth. 153.348 North Tea Trucking.351 Goodrime Food Products Ltd. 81 Canada Industrial Relations Board. 65 Canadian Labour Arbitration (3rd Ed) (Brown and Bearry). 353. 190 Canada Post. 25. 356 Regional Transit Commission. 128 represenrarion vote.347 Lakeshore Casino. 241 Canadian Auto Workers (CAW). 181. See Congress of Industrial Organization (CIO) Citizenship and Multiculturalism Act. 187. Gary. 141. 100 caucus. See Canadian Auto Workers (CAW) CBC. 118 legislation governing procedure. 174 summary of. 190-191 contracting our. 179. See cost-of-l iving allowances (COLA) collaboration (versus confrontation). 32 closed shop. 332 enforcement of. 346. 67 Canadian Radio-television and Telecommunications Commission (CRTC) . 151 certification procedure. 355.Index labour reform legislation.353 Ttmberwolf Family Counselling. 38 application of. 373 Canadianizarion of unions.193 recognition. 52. 331 COLA. 29 appropriate bargaining unit. 192 leave. 48.180 discipline and discharge. 56. 311 CAW. 339 Charter. 48. 190 wages. See Canadian Charter of Rights and Freedoms Chaykowski. See also grievance and arbitration process. 153 employer commu nica rion. 280.179 other possible terms. 66. 175 vacations. 174-175 health and safety.124 employee status and exclusions. 48. 62 Canadian Congress of Labour (CCL).209 certification process. 207. 128.316 CIO.142 trade union status.182 duration or term of agreemenr. 70 freedom of expression. 348-349 Catalyst Paper. 118.35 6 Colpoy's Bay News.63 Canadian Labour Union.177 chilling effect. 114 Chaison. 128 purpose of. 259 Canadian Labour Arbitration Summaries. 177. 347. 120 successor rights.354 Clariry Call. 332 importance of.110 formation of. 122. 62 social unionism. 187 overtime. 113.ollecrive agreement terms. 297. 41 implications of. 87 legal requirements for. 65 local unions. 180-181 discrimination. 76. 230. 126 restrictions on applications.306 Canada Pension Plan. 153.357 Ear Rite Lrd. 55. 165.199 union security.39 purpose of. See Canadian Congress of Labour (CCL) cenrralized bargaining. 244. 192. 103. 173-174 benefits.194 union business. 194-196 management rights. 189 hours of work and scheduling. See also c.143 third-parry assistance in conrracr dispures. 175. 167 strikes and lockouts. 68 Canadian Cancer Society. seniority bargaining unit work. 119. 82. 62 purpose o f union. 257 confronrarion (versus collaboration ). 5-7. 69 consntunon of Canadian Labour Congress (CLC).384 Index collective bargaining. Energy and Paperworkers Union of Canada (CEP).279 conciliation officers. 15 constructive layoff. 33. 60. 182 Canadian Charter of Rights ami Freedoms. 55. 313-314 differentiation. 115-116 deregulation. 88 direct discrimination. 13. 24 courts. 181 duty to accommodate . 281 public sector labour relations. 26 seniorit y. 54. 247. 170. 74 conciliarion and mediarion and certification. 136-137 deemed termination. See also labour negotiation and Canadian Labour Congress (CLC). See also certificarion process defined. 135 unionizarion a nd. See Canadian Radio-relevision and Telecommunications Commission (CRTC) culminating incident. 255. unions and. A Iron. 29. 32 bona fide occupational qualification (BFOQ). 297-306 conciliation board. 180-181 elisa bled employees. 181 rypes or forms of. 15 dispute settlemenr. 254 collective agreemenr rerms. 329 contracr dispure resolution. 189 costs. 91 Conciliation Act (1900). 342 Crown Employees Collective Bargaining A ct {Ontario). 136-137 additional grounds for. 25-26. 258 containmenr-aggression relationship. 53 versus industrial unions. 13 Congress of Indusrrial Organization (CIO). 33 I Communisr Parry of Canada. 258 discipline. 277. 220-223 diversity in workforce. 253-254 possible discipline. 252. See also discipline and discharge remedies againsr. 187 comperirive srraregy. strikes back-to-work legislation. 33 meaning of. See Canadian Union of Public Employees (CUPE) D DaimlerChrysler. 62 direcrory rime lim irs. 281-282 final offer vore. 258 deindustrialization.256 grounds for. 326. 211 Contract and Commitment: Employment Relations in the l\"ew Economy (Verma and Chaykowski). 69 cooling-off period. 26 dependent contractor. 53 Craig.30 constructive dismissal. 5 Communications. 264 deemed termination. 263 CUPE. 313 contractors. 74 decentralized bargaining. 84-85. 34 discipline and discharge. 33 sexual orientation. 70. 4 government support for. 42 directly chartered union. 60 consrirurion. 66. 62 Constitution Act. 85. 140 employee application. 27 5-276 contracting our. 33. 197 disability benefits. 66. 339 decertification. 62 in the public sector. 23 divided jurisdiction. 251-252 implications for employers and unions. 256-257 lasr chance agreement (LCA). appropriateness of pena lty. 102-103 craft unions defined. 226 legislation by jurisdiction. 211 conflict resolurion. 58 labour·manag emem partnership. 33 duty to accommodate . 277 Co-operative Commonwea lth Federation (CCF). 34. 67 cost leadership. 10. 9 crowding effect. 179. 33-34 dismissal. 72 compensanon for unfair labour practices. 68.34. 69 common law.208. 256 nondisciplinary measures for absenteeism. 25 Delphi. 326 comperirive ability clause. 62. 207. 253-254 grievances against. 254 employer and union obligations. 51 process of. 29 . 32 term in collective agreements.180 contract negoriarion. 99-100 CRTC.91 cost-of-living allowances (COLA). 261 and discriminatio n. 253 procedural marrers. 23 7-238 distributive bargaining strategies and ractics. 251.35 non disciplinary discharge. 84. 30. 4 collusive relationship. 253 culpable absenteeism. 139 purpose of. 5-7. 281. 212 Commitree of Industrial Organizarion. 11 5 convention. 42. 313. 66. 42 designated or conrrolled srrike model. 89.256 arbitration issues and outcomes. See also lockours. 277 conflict relarionship.85 concession bargaining.72 cooperarive relationship. 3'11-320 third -pa rty assistance.253 discrimination. 307. dury of. See also workplace benefits of grievance and arbitration. 119 srarus and exclusions for cerrificarion.179 objectives and processes.187 vacations.Index Dofasco.9 duration of collective agreemenr. 54. 335 outside of rhe collective agreement. 74.13 final offer selection. 336 implementation of. 131. 278 fair representation. 13 freedom of expression. prohibiting. 58 Federation des rravailleurs er rravailleuses du Quebec (FTQ). 182. 320 outcomes of. 238 decertification application. 330-331. 266-267 F fact-finding.220. 228 Follett. 115 Fra mework of Fairness Agreemenr bargaining righrs. 114. Alan.131 385 employment equity legislation. 137. See also economic environment. 330 collective agreement and. 171. 228 globalization. 214 employer demands. 11. 11 governmenr economic policy.311 . 335 employee prorecrion. 97. 107 Essentials of Negotiation (Lewicki. 134. 8.43 education. 216. 212 Eaton's.337 employer freedom of acrion.132 public sector labour relations. 37. 223 estoppel. 33 Dunlop's model . 87. 18. 20-21. John.334 employee-management commirrees. 92 Freeman. 219. Mary Parker. 21 fourfold resr. 334 forms of. Richard.322 unfair labour practices. grievance and arbitration process employee relations. 194-196 overrime. 192 leave. 20 Fisher. 324. Saunders and Minron). 129. 19.206. 31. 11 equiry.337 implications of.280-281 fiscal policy.331 Getting to Yes: Negotiating Agreements Without Giving In (Fisher. 176-177 dury of fair representation. 177. 317. 87 permissible conduct during organizing campaign. 190 wages. 74. 24 Godard. See also discipline and discharge. 63 feedback in labour relations. 72. 243 certification. union-managemenr relationship burden of proof. 11. 264.287. 132 environment.84 opposition ro unions. 172. 11 social environment.140 disconrenr. 90.19 defined.86 employer bargaining ream. 281 firsr contract arbirrarion. Ury and Parton).20 economic policy. 195 employmenr levels. 19. 5. 19 public sector labour relations. 9 employmenr standards legislation. 51 efficiency. 11 technological environmenr. 248-249 expedited arbitration. 241. 336. 323. Roger. labour negotiation.287 probationary. 117. 291 freedom of speech. 6-7.266 federally regula red employees. 83. 80 negoriarion impasse. 247 employee involvemenr. 192 seniority. political environment impact on labour relations. 85. 225. 29 Federation de Ia sanre er des services sociaux (FSSS). 227 rerms. 335. labour relations srraregy. 126-128 conrracr administration.219 E Eagleson. 192. 21 employee involvemenr.22 macroeconomic environmenr. See also human resources management. 286. 99 Employment Insurance Act.26 adverse effect on unions. 174. 20 industry and firm-level demand.118 types of. 81.286. 74 economic environment. 188-189 enrry.324 free trade. 30 hours of work and scheduling. 53.118 managemenr righrs. 4 employees. 312 rest rictions on certification. 41 . 86 downsizing.42-44 dury ro bargain in good fairh. 331 final offer selection. 12. 21. 54. 215 employers. 227 final offer vore. 264-266 dury ro accommodate. 227 labour relations srraregy. See also Norrh American free Trade Agreemenr (NAFTA) G General !Vlorors. 328 employment relationship. 18. legal environmenr.193 problems wirh. 332. 285 trends and issues affecting labour relations. 210 Ford.94 forest indust ry. 183 in rhe public sector. 79.318 and st rikes.83 elastic demand. See t raining and education education secror. 25 drug dependency. 209. 322 independent contractor. 97 and labour relations.170 group grievance. 259 labour councils. 212. 231 innocenr absenreeism. 7. 189 hor cargo clause. 97.97 irem-by-irem formal offer selection. 94. 194 K Knights of Labour.264. 223. 10. 56-57. 280 J job control unionism.34. 205. 25. 288 hours of work and scheduling. 193 job posting and selection. 108. 209.100 indust ry assistance. 96. 88. 97. 99. 13. 107. See also labour relations indust rial unions. 39. 97 as employers.386 Index governance. 42-43 inflation. See job posting and selection joint or union-management committees. 226 dury ro bargain in good fairh. 27 6. 66-67. development of. 94-96 mainraining office. 89. 21 inelastic demand.188. 69.265 discipline. 242. 4 Human Rights Act. 53. 86. 278. See also grievance and arbitration process defined. 267 grievance rare. 213 overview of. discrimination accommodation and seniority. 170 rime limits.225 bargaining reams. 258 and seniority. 51 health and safery legislation. 169.72 indust ry bargaining. 247 confrontation or collaboration. 207 labour negotiation process. 21. 19. 213 . 332 health care industries. 62 labour marker changes.20. Ltd.210 sub-processes in negoriarion. 172 and Canadian Labour Congress (CLC). 8-9. 226 notice ro bargain. 94 information technology. 262 job security. 207 indust ry-level demand. 324 jury dury.22. 187. 268-269 In Search of the Eighteenth Camel: Discovering a Mutual Gains Oasis for Unions and Management (Weiss).116 independent local unions. 21. 114. 87.99 objectives and processes. 170 Industrial Disputes Investigation Act. 69 KVP Co.230 inrraorganizarional bargaining. 27. 27 Inreresr-based bargaining. 207 defined. 108. 7. 228 interest arbirrarion. 340. See national and international liJUOilS Internet. 220 memorandum of serrlemenr and ratification.262 job posting and selection. 198 high-performance work systems.14. 64. See also high-performance work systems holidays and holiday pay. 80. 25 8 I Imperial Oil.219 first conrracr arbitration. 67 indirect discrimination.64 functions and benefits of.211 investment. 20 grievance and arbitration process alternative forms of arbitration. 237.342 defined. 250 incentive systems. 209 union-management relationship. 11.238 grievance procedure. 263. See also Canadian Charter of Rights and Freedoms. 213 bargaining power.263 administration of collective agreement. 43. 7. 66. 269. Buzz. See also political environment deregulation. 62.33. 227. 326 Inco. See also employers alternative approaches ro. 64 labour federations.42-43 individual grievance. 22 labour negotiation. 244. 280 lnrernarional Brotherhood of Elecrrical Workers (IBEW) . 192 human resources management. 99. 171 grievance mediation.11. 145 international unions. 100 marker practice regulation. 169 grievances. 30. 209.230 negotiator skills and experience. 94 government economic policy.210.26 economic regulation. 171 problems wirh. 71. 214 conciliation and mediation. See also labour negotiation process bargaining srrucrure.210 job vacancies.217 Hargrove. 11. See organization and governance government. 94.276.12.90 high commitment approach ro HR Management. 230 integrative bargaining. 220.73.73. 39 human rights legislation. 15. 168 types of. 72. 262. 329 job loss. 170 H hard bargaining. 87 journal Le Droit. 2-4. 216. 36. 94. 248. 261. 344 initial position. 18. 241 grievance(s). 168 probationary employees. 205 Inreresr-based bargaining.82. 116 journal of Labor Research. 227. 88. 36-37. 69 industrial relations. 95. 32.249 L Labour Arbitration Cases. 29. labour relarions legislarion.175. 11 of early unions. 33 mandarory rerms. 55. 126 .Maniroba Federarion of Labour (. 102 responsibiliries of. 57 independenr. 194 union dues and membership. See also employmenr sra ndards legis larion. unions in Canada confronrarion or collaborarion. 290 rechnological change. 68. 19 mainrenance of membership. 101 successor righrs. 166 healrh and safery.MFL) .Managemenr. 216 srraregies and racrics in disrriburive bargaining.199 issues affecring union growrh. 26 legal environmenr. 323. 66 public secror unionizarion.70 inrernarionalunions and labour federarions. 166 mandarory rime limirs.220 imporrance of. 5 furure of. 73 labour relarions framework. 39.9 labour relarions legislarion. 57 organizarion and governance. 157.3.303. 313. 101 second conrracr arbirrarion.152 back-ro-work legislarion. 101. 341 required professional capabiliries (RPCs). 136-141 dury of fair represenrarion. 339 labour relarions srraregy facrors affecring.40. 286 srrikes and lockours.72 early unions. 99. 59. See also legislarion Canada versus rhe Unired Srares. 177.160. 57 funcrions of. 100. 244 leaflering. 73 liabiliry. 194. 2. 180--181 dury of fair represenrarion. 148. 36-37 legislarion governing labour relarions. 25 employmenr relarionship. 88 M macroeconomic environmenr. 216-219 firsr conrracr arbirrarion. See lasr chance agreemenr (LCA) L eading Cases on Labour Arbitration (Mirchnick and Erheringron). human righrs legislarion. 84-85 imporrance of. 170 mandarory vaccinarions. 245. 281 srrikes and lockours. 72 unions and polirics. 159. 216-219 employee involvemenr. 55. 17 5 union influence on. 206. 18.14. 156 . 176 managemen r.90 imporrance of.317 decerrificarion. 36-37 imporrance of.13 polirical economy approach. 9.302. 69. See employers managemenr righrs. public secror labour relarions. 86 srraregies of Canadian employers. 220--223 labour relarions.196 legacy cosrs. 264-266 dury ro bargain in good fairh. 373-374 unionizarion effecrs.31 and srrikes. 31 and union-managemenr relarionship. See also cerrificarion process.149 mandarory reriremenr.188 wage and price conrrols. See also environmenr acrors/parries. 85. 13. 227 replacemenr workers. 166 appropriare bargaining unir.3 overview of rradirional. 199 lobbying.326 governmenr regularion of.333.7 5 defined. 54 mandarory vores.13.320 rarificarion vore. polirical environmenr collecrive agreemenrs.157 Maniroba Human Rights Code.3 economic rrends and issues affecring. 214-215 srages of negoriarion. unions.310 Labour Relarions Board(s). 241. prorecrion againsr. 2 81 firsr conrracr arbirrarion. 2. 340. See also NHL lockour resrricrions governing. 9 sysrems approach. 84 possible employer srraregies. See also cerrificarion process composirion of. 101 procedure and remedies. 219. 136-141. labour relarions developmenr. 116. 332.336 final offer vore.179 for public secror. 163 discipline and discharge.342 defined. 156. 65. 311. 108 LCA.101 decerrificarion. adminisrrarion of collecrive agreemenrs. 97. 89.Index prepararions for negoriarion.282 bargaining srrucrure. 98 lasr chance agreemenr (LCA). 12. 95 labour relarions developmenr. 9. 281. 57 narional and inrernarional unions. 2. 168.56 lock ours. 324-329 Labour Relations Act. 54-55. 177. 340 managemenr righrs.86 Labour Standards A ct (Saskarchewan).209 conrracr dispure resolurion. 182. 67 indusrrial unions. 264-266 dury ro bargain in good fairh. See also employee involvemenr.10 overview of. 8.99 high-performance pracrices.288. 300. 30.262 layoffs. 24. 69 low commirmenr approach ro HR . 41 leave. 94. 335.187. 60 local unions.178. 256. 225. 142 Labour Relations Code (Brirish Columbia). 71 recenr redevelopmenrs.69 key evenrs.220 387 grievance and arbirrarion procedure. 151. 96. 219.173. 69.248 managerial exclusions. 261. 326 versus unionized. 182 Ontario Hydro. 175. 113 output/results in labour relations.113 organizing committee. 58 Navistar International Corporation. 48. 61 organizing campaign. 101. 176.98 maternity leave. 277 nominal wages. 263. 216 monetary policy. 32 Newfoundland Labour Relations Act. See also labour relations legislation Nova Scotia Trade Union Act. See contracting out overtime. 102 membership. 111 McKersie. 14 9 occupational exclusions. 267 mediators.161 managerial exclusions. James. 117. 4 ministries for labour issues Ministry of Labour. 150 One Big Union.32 New Brunswick Industrial Relations Act. 40 lobbying of unions. 70 National Labour Relations Board (United States). 9. 195 lvlcDonald 's.315. 58 opening positions in negotiations. 62 National Labour Relations Act (Wagner Act). 238 occupational exclusions. 23--24 non-union workplaces union effect on. 150. 24. 96 collective agreements. 212 national labour congress. 150 third-parry assistance in cont ract disputes. regulation of. 159. 95. 3.214 Nova Scotia Federation of Labour (NSFL). 117. 60~1 organization and governance. See also labour relations legislation appropriate bargaining unit. 31. 64 of local unions. 69 Ontario Federation of Labour (OFL). See North American Free Trade Agreement (NAFTA) narcotic effect. See union membership membership cards and certification. 24 " Michelin Bill". 19 nondisciplinary measures for absenteeism. 176 organization and governance of Canadian Labour Congress (CLC). grieve later rule. 95 New Democratic Party (NDP) establishment of. 278 Medoff. 211 mediation. 192. 283 no-board report. 70 National Union of Public and General Employees (NUPGE). 31. 163 managerial exclusions.324 Meiorin case. 63 New Brunswick Human Rights Act. 61 National Hockey League (NHL) . 63 Newfoundland and Labrador Human Rights Code.177 monetary issues. 165 contract dispute resolution. 61. See labour negotiation New Brunswick Federation of Labour (NBFL). 280. 284 market practices.193 ownership of the grievance. 222 open period. 56-57 of national and international unions. See also labour relations legislation New Brunswick Industrial Relations Act.388 Index lvla nitoba Labour Relations Act. 55 Ontario Labour Relations Act. 63 Nova Scotia Human Rights Act.264 non-monetary issues. 57. See also labour relations legislation appropriate bargaining unit. 152 certification procedure. 125 memorandum of settlement. 165 negotiation of collective agreement. 159 occupational exclusions. 226-227 mergers.58 entry of international unions. 151 certification procedure.63 of labour councils. 20 mutual gains bargaining. 5 North American Free Trade Agreement (NAFTA). 56.25 notice to bargain.314 Ontario Secondary School Teachers' Federation. See Interest-based bargaining N NAFTA. 313 0 Oakwood Park Lodge. 63 Ontario Human Rights Code. See New Democratic Party (NDP) Negotech. 213. See also conciliation and mediation with arbitration (mediation-arbitration). 150 third-party assistance in contract disputes. 30 and labour relations. 19 non-standard work. 241 . 140 Ontario Public Service Employees Union (OPSEU).316 national and international unions defined. 12 outsourci ng. 156-157 decertification procedure. 108 NDP. 59 relationship with local. 157 lvlaple Leaf Foods. 66. 58 functions of. 31 Nova Scotia Trade Union Act. 241. 242 modified union shop. 297. right to strike. 149 obey now. Robert. 95 NHL lockout. 66 Newfoundland and Labrador Federation of Labour (NLFL). 87. 112. 121 open shop. 156. 27 6 minutes of settlement. 40. 30.307 Ontario Labour Relations Board. 97. 95 nurses. 278 grievance mediation. 19 non-profit sector. 323. 260 unionization and. 81-83 unions and. 29. unionization of. 177 resistance poinr. 339 rotating strike. '125. 312 legislative framework. 224. 40 for health care workers. 184-187 recognition arricle. 100 public sector. 52 Rose. 83. 95. 25-26 efficiency and productivity issues. 319 Public Service Alliance of Canada (PSAC). 32 Quebec Labour Code.374 reserved rights. 209 Patton. 228 PC 1003. '167 recruitment and selection assessing skill and ability.327 profitability. 309 privileged commu nication. 226 replication princip le.127 Required Professiona l Capabilities (RPCs). 175-176 ratification vore. 308 unioniztuion of. 199 mandatory. 311 Porter. 48-50 Perro-Canada . 259.324 Public Service Labour Relations Act. protection of. 9 politica l environment. 166. See also labour relations legislation Prince Edward Island L<tbour Act. 170 political activity of unions. 330 Quebec Charter of Human Rights and Freedoms. 310. joseph. 312-3'13. See also second union. 315 recent developments in. 26. 71. 101 Saskatchewan Trade Union Act. 307 bargaining rights. 82. See also government. 313 representation vote. 31 Saskatchewan Labour Relations Board. 335 procedural rules. 97. 282 Royal Canad ian Mou nted Police (RCMP). 41 s safety risk. 23. 100 size and importance of. 12. 32 Prince Edward Island Labour Act. 338 same-sex couples. 330. 81-83 pensions. 171 problem-sol ving groups. 242 right to organize. 59. certification of Rand formula. 199 Provincial Federation of Labour. 95. 63 provi ncially regulated employees. 108. Bruce. 326. 84. 97. 313 employees and unions. See also la bour relations legislation R raiding. 196 Perspectives on Labour and Income (Statistics Canada). 8 productivity. 195 parr-rime employees. 70 probationary employees . 177 residual rights. 6 reca lls. 310 Q quality circles. 36 salting. 30. 315 Public Service Staff Relations Act. 290-291 policy grievances. 170 rights arbitration. 29 public interest. 32 Renaud. 51-52 divided jurisdiction. See Royal Canadian Mounted Police (RCMP) real wages. 51. 313-317 contract negotiation. Michael. 312. 100 Saskatchewan Federation of Labour (SFL ). 20-21 Prince Edward Island Federation of Labour.260 job posting and selection. 241 Privy Council Order 1003. 24 pattern bargaining. 19 reasonable norice. 63 Prince Edward Island Human Rights Act. 84. 92. 310 conrract dispute resolution. 62. 373. 56 provincial labour federations. 72. 80 public relations. 95 .30 public sector labour relations. 84 price elasticity of demand. 253 protection aga inst liability. 84. Srephane. 39 Saskatchewan Business Council. 54. 227 RCMP. 220 retirement collective agreement provisions. legislation Canada versus the United Stares. 71. 63.Index p parenral leave. 71-72 political economy approach. 328 relative ability clause. 325-327 Progressive Conservatives. 96 public relations. 313 unionization of. 53. 95 private sector unions. 309-310 wage and price controls.52. 92 Saskatchewa n Human Rigbts Code. 40-41 right to strike. 325 replacemenr workers. 258 remedies at arbitration. 331 pickering. 26. 309 389 Public-Sector Labour Relations in an Era of Restraint and Restructuring (Swimmer). 52. 337 progressive discipline. 84. See also public secror labour relations downsizing and deregulation. unions and. See Privy Council Order 1003 pensions. 312 right-to-work . 312. 73 public sector labour relations. 309. 60 personal leave. 187 religious discrimination. 73 social environment.143 sufficient ability clause. 195-196 social contract legislation. 220 Taylor. 24-25 Trades and Labour Congress (TFL). in bargaining units. 260 layoffs. See educational sector technological change. 305 threat effect. 133 union acceptance. 184 Supreme Court of Canada. 20-21 Toyota. 8 successor rights. 8-9 T target point. 23 Shell Canada. 281. 226. 52 u UFCW. 33. 32. 62 settlement agreements.27 Telecommunications Workers Union. 68 softwood lumber industry. 214 union business. certification of. 259 Service Employees International Union (SElU}. discrimination.225 defined. 200 employment involvement.31 9 systems approach. I 13 changes in wo rking conditions. 193-194 technological environment. 213. 331.38 Meiorin case. 291-293 factors affecti ng. 27-28 social unionism. 135 statutory freeze. 182 and disabled employees. 26. See unions training and education collective agreemenrs. 13 sick leave. Snyder. 130-131 at negotia tion. 217 Swimmer. See also lockours. 282-283. 54. See discipline and discharge. 19 solicitation. 132-133 Sprint Canada. 283. 290 strikes. 280 tourism industry. 118-1'19 security guards. 169 strategies in distributive bargaining. 187 super-seniority. 280 conciliation. 337-338 Satmn Partnership Agreement. 331 secondary pickering. 131-133 remedies for.123 selection process. 86-87 union administration. 290-291 extent of strike activity. 260 termination of. 35-36 union dues. right to strike bargaining power. Gene. 315 substantive rules. 299-300 by jurisdiction. 258 accumulation of. 41 . 86 stewards. 176 surface bargaining. 128 of employers. 51-52 trade liberalization.390 Index Saskatoon Chemicals. 287 significance of. Frederick.335 by local un ions. 183 defined. 338 union avoidance. 290 restrictions governing. 141. 307. 220-223 strike pay. 223. 331 seniority. 258 application of. 297-298 fact-finding. 35-36. 11. 242 sexual orientation. 325 of union members. 68 trade unions. 284 total package final offer selection. 38. 331 self-managing work reams. 90 termination.259 remedies at arbitration. 69 Toronto Maple Leafs. 196-199 .290-291 second contract arbitration . 282-283 end of. 258.213 -214 of unions. 82 statutory freeze. 329 Tayloristic work principles. 255-257 freedom of expression. 284-287 functions of. 278. 61. 326 lim Horton's. 55. 18. 11. recalls and job vacancies. 340 second union. S11yder. 355 relework. 184. 129-130 defined. 224 Toronto Electric Power Commission v.122. 290 Toronto Electric PoUter Commission v. 290-291 Strikes in Essential Services (Adell. between Canada and United States. 329 teachers. 130-131. See recruitment and selection self-directed reams. 40 secondary pickering.214 steel industry. 86 Stelco. See United Food and Commercial Workers Union (UFCW) undue hardship. 264 unfair labour practices. 334. Grant and Ponak). at certification. 61 in unionized firms. dismissal third-parry assistance in contract disputes arbitration. 109-110 trade. 69 undue hardship. 304-305 mediation.313. 182 accommodat ion. 261-262.34 forced medical treatment. 199-200 Tel us. 284 replacement workers. 102 right to strike. 283 strike activity. 41 mandatory retirement. 86 union bargaining ream. 41. 26 Starbucks. 129 permissible employer conduct. 31 labour relarions boards. 64 Universiry of Maniroba. 52 producriviry growrh. 68 labour reform legislarion. See also local unions. 325 Unired Sreelworkers of America (USWA). Donald. labour relarions. See also environmenr. 65 reasons for.52. 87. 30 legal environmenr. 53 union securiry provisions. 209. 327 rraining.52. 56 labour congresses and federarions. 176 union shop.90 influence on Canadian labour relarions. 214. 87 union resisrance. See National Labour Relations Act (Wagner Act) Wagner model of labour relarions. unions in Canada defined. union densiry. 73 wages.14. 333 391 . 325.Index union consrirurion. 326 Wagner Act. 89. 51 defined. 89.54-55. 73. 328. 57.52. 335.189 concession bargai ning.84. William. 65 reasons againsr. 58.331 union srrucrure and funcrions. 88. 86. See labour relarions developmenr union dues. 59. 51.333. Terry. 335. 340.336 videorape evidence. 228 v vacarions .177 rypes of.89. 190 variable pay. 313 Ury. 332 Unired Way. 107 union fragmenrarion. 98. 48-4 9 unions. 21 2. 40-41.336 facrors derermining. 175 union wage premium. 18 8 provincial labour federarions. 48.74. 241 Wal-Marr. 58.87 influence of American unions.342 employee involvemenr programs. 332 srrike acriviry. 136 Walron.327. 326--327 profirabiliry. 63 Wells. 199 union-managemenr relarionship confronrarion or collaborarion . 328 invesrmenr. 48-49 srrikes and lockours. 111 volunrary rerms. 13.50 Canada versus rhe Unired Srares. 211 Web sires employmenr srandards.239 objecrives and processes. 83.212 union membership. versus Canadian. 52. 48 grievance and arbirrarion benefirs.58. 83. narional and inrernarional unions Canadianizarion of unions. 65 unionizarion decision. 325 versus Unired Srares' unions.333.52. 62-64 labour councils. 86. 17 6 unions in Canada. 52. 331 Unired Food and Commercial Workers Union (UFCW). 220. Richard. 112. 326 Verma . 88. 81 srrike acriviry. 82 labour marker changes and.52.293 union dues and membership. 65 union wage effecr. 95 minisrries responsible for labour issues. 166 w Wagar.213 and producriviry. See also labour relarions. 282. 92. 332. 327 managerial conrrol. 220 polirical environmenr. 61 union demands. 52 decline of.99 human righrs legislarion and commissions. 48 union developmenr. 329 producriviry. 22. union srrucrure and funcrions characrerisrics of members. 65 Canadian Labour lvlovemenr srrucrure. 65. 188. 51.24 no minal versus rea l. 196 union-managemenr commirrees. 65 membership.326 Unired Auro Workers (UAW) . 328 union leave. 51. 254 volunrary recognirion agreemenr. 326 high-performance work sysrems. 237. 19 employee involvemenr programs. 176--177 union opposirion.55 securiry provisions. 65 unionizarion effecrs. 48. 220. 92 Unired Srares Canadian rrade wirh. 331 union wage premium. Ani!. 51. 51. 53.292 union densiry.335. 19 union effecr on. 175. 74. 51.113 union removal. 341 waiver. 337 employer opposirion ro. 211. 96 occuparional healrh and safery legislarion. union densiry. 290-291 rypes of. 87 unions. 326 compensarion. 87.336 employer opposirion ro unions. 13 Wesron Bakeries. 89. 74-75 legislarion rela ring ro. 67. 332. 326 employer recru iring and selecrion. 86 union organizers. and rhrears ro. 101 labour relarions legislarion. 328 employmenr. 335. 65. 64 union fragmenrarion.215 union densiry. 290. 311 unresrricred righr-ro-srrike model. 175.176 opposirion ro. 95 largesr Canadian unions. 341 wage and price conrrols. 332 facrors affecring unionizarion. 5. 67 . 283 Winnipeg general srrike. 324-325 whipsawing. 108 workload. 107. 7. and unions. 69 wirhour precedenr.392 Index \Vhat Do Unions Do? (Freeman and JVledoff). 108 workplace.7. 329 non -union versus unionized. 241 women. 23 workforce demographics. 69 Winnipeg Labour Council. 23 working condirions. 208 wildcar srrike. 24 2 wirhour prejudice. 282 y yellow dog conrracrs. 251 rerm s and condirions. 54 work-ro-nde campaign.109 managerial conrrol of. 54 efficiency and producriviry. democrarizarion of.