Solution Manual for Industrial Relations in Canada, 4th Edition, Fiona McQuarrie

Type:

Solution Manual

Resource:

Industrial Relations in Canada

Edition:

4th Edition

Author(s):

Fiona McQuarrie

Instructor’s Manual to Accompany McQuarrie/Industrial Relations in Canada, Fourth Edition

CHAPTER 1 An Introduction to Industrial Relations in Canada

LECTURE NOTES

Chapter 1 Objectives At the end of this chapter you should be able to: • Identify the various terms used to describe union-management relationships • Describe how other academic subjects might address industrial relations issues • Identify the major pieces of legislation that regulate Canadian industrial relations and explain the common elements among those laws • Understand how other kinds of Canadian legislation affect industrial relations • Identify some of the major demographic and statistical features of Canadian union membership

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What Is Industrial Relations?

• Refers to the relationship between a union and an employer − Union: organization run for and by workers − Employer: organization that workers in union work for − Employer can also be called “management”, “the company”, or “the organization”, but “employer” is most common term because it reflects employer-employee relationship that is the basis of union’s connection to workplace − Union’s primary role is to represent workers in interactions with the employer − Union is given this power through Canadian provincial and federal law The expression industrial relations (IR): • Is the preferred Canadian term for union-employer interactions - Used by federal government since 1919 Royal Commission to Enquire into Industrial Relations in Canada •

Is a more appropriate description than labour relations (LR) - “Labour relations” comes from “organized labour”, a term used to describe unions

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Emphasizes that there are two parties - “Labour relations” only focuses on labour side of union-employer relationship - “Industrial relations” also indicates that union-employer relationship is within the context of an industry or workplace

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One widely used definition of “industrial relations” contends that it is a broad and interdisciplinary field of study and practice that encompasses all aspects of the employment relationship More appropriately as a descriptor of union-employer relationship - In common usage “industrial relations” refers to employer-employee relationships in unionized workplaces - Study of non-unionized workplaces is usually called “employment relations” or “human resource management” (although human resource management (HRM) can and does deal with issues in unionized workplaces)

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Much I.R. research on non-unionized workplaces investigates how nonunion workplaces replicate or adopt structures of unionized workplaces

I.R. differs from H.R.M. primarily in that I.R. deals mostly with unionized workplaces, while H.R.M. deals with both unionized and non-unionized workplaces

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No Single, Unifying Theory of Industrial Relations I.R. issues may interest historians, psychologists, economists, and others - E.g., historian: events leading to formation of a union or study of an industrial relations conflict - E.g., psychologist: development or changes of individual attitudes toward union or employer - E.g. economist: effect of unionized wage rates on industry wage rates or cost of living

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Each would approach the topic differently - Thus there is no single theory that completely explains all events in I.R. - Some theories may even contradict or be in conflict with each other

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No single theory could explain every possible situation - I.R. contains perspectives from multiple disciplines - Union-employer relationships involve complex work and work arrangements, and take place within complex organizations – and therefore difficult to have a single theory - Should instead recognize that different perspectives help to make a richer contribution to how we understand union-employer relationship

Why Study Industrial Relations?

• Common student attitudes: − Unions no longer needed because workers are treated fairly − Only part of Canadian workforce is unionized, so no need to study unions if you might never join one − Personally opposed to unions and would never join one

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All valid statements, but there are several reasons to study I.R. even if you hold some or all of these beliefs: 1. In many workplaces and occupations, union membership is a prerequisite to employment − Attaining a certain job or pursuing a certain career may require joining a union regardless of one’s personal views on unions 2. Non-union members are often affected by the actions of unions and unionized employers − E.g., during Air Canada’s 2012 labour disputes between unionized workers and the employer (Air Canada), the impact of the conflict extended to other parties: travellers whose trips were disrupted; businesses whose products and supplies were not delivered on time, etc. − Thus important to understand unions and their activities even if you are not part of a union 3. Canadian law makes unionization an option for nearly every kind of worker − Not every workplace is perfect and unions may have a role to play in affecting worker satisfaction and working conditions 4. Knowing the history of unionization helps explain the modern Canadian workplace and the laws that govern it − Unions have been influential in obtaining e.g. minimum wage laws, occupational health and safety standards 5. Knowledge of I.R. is a benefit for anyone seeking employment in human resource management or related fields - Ability to work within and understand both unionized and non-unionized environments is a much sought after skill for employers 6. It is easier to contest unions if you know about them - If you want to oppose a union, it’s useful to know how they operate, what laws govern their operations, and what employers can and can’t do to counteract unionization in the workplace

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The Legal Framework Jurisdiction • Term means which government or law-making body has responsibility for legislation regulating a particular issue •

Depending on the situation, union-employer relations may be governed by federal or provincial legislation

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Until the mid-1920s, all I.R. issues were covered by federal laws - 1867 British North American Act concentrated most Canadian legislative power at the federal level - Deliberate choice by founders of Canada because they wished to avoid American experience of Civil War caused by decentralization of legislative power

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In 1925, case of Snider vs. Toronto Electrical Commission established that industrial relations were mostly a provincial responsibility - The outcome of this case required each province to develop its own labour relations legislation - There is now a federal labour relations act AND a separate labour relations act in each province

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Federal Jurisdiction How to determine if a specific union-employer relationship is governed by federal or provincial labour law?

• If an employer’s business has an interprovincial component – i.e., it regularly crosses provincial lines – it is covered by federal labour laws •

Examples are banking, telecommunications, broadcasting and interprovincial transportation

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Employees of the federal government and some Crown corporations are also covered

Provincial Jurisdiction Provincial labour law covers businesses that operate within the boundaries of that province (intraprovincially) • Covers 90 per cent of union-employer relationships in Canada

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Types of Laws Covering Labour Relations Labour Relations Laws Federal and provincial labour relations acts share common characteristics. They: • Establish certification procedures covering the recognition of a union in a workplace - Discussed in more detail in Chapter 5 •

Set a minimum term for collective agreements between employer and union; usually one year

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Establish procedures for legal strikes and lockouts - Procedures usually include regulations for strike or lockout-related activities e.g., picketing, replacement workers - Discussed in greater detail in Chapter 9

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Establish ways of resolving disputes during the term of the collective agreement - These are usually called grievance resolution procedures - Discussed in more detail in Chapter 11

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Define unfair labour practices - Unfair labour practices are behaviours by union or management during e.g., certification campaigns - Discussed in more detail in Chapter 6

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Create labour relations board, which has quasi-judicial status - Specific name varies by jurisdiction Its purpose is to administer and enforce labour relations legislation - Resolves disputes related to the application of labour relations legislation and provides services such as assistance in grievance resolution - Rules on cases brought before it and issues interpretations of the law - Board has Quasi-judicial status because, like civil or criminal court, it rules on cases and the government funds its operations, but the government does not control its operations. Unlike civil or criminal court, labour relations board can suggest remedies as well as impose solutions. It also has broader

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guidelines than other courts on what evidence can be submitted when a case is heard Board members are union and management representatives, all appointed by government Board members are appointed to panels to hear cases; usually one union representative and one management representative, who then pick a third member. (There can also be single-member panels) Boards also have chairs and vice-chairs appointed by government, and staff members who assist board members in their work and provide services to public

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Public Sector Labour Relations Legislation • In most Canadian jurisdictions, separate labour relations acts govern public sector employees - Public sector employees = employees who work for government or for affiliated organizations e.g. Crown corporations •

Some jurisdictions have separate acts for para-public or quasi-public sector employees (employees who work for government-funded organizations, but don’t directly work for the government.)

- Examples of para-public/quasi-public sector employees: court workers, health-care workers, university/college employees

Reasons for separate labour legislation • Unique employment relationship – employer sets rules, holds more power - Government is the employer but government is also responsible for creating and administering labour relations legislation. Other employers do not have this regulatory power.

- Separate public sector labour legislation recognizes the unique status of government as employer •

Public and para-public employees often provide vital services: fire protection, social services, health care - These services are needed for communities to function effectively - Separate legislation allows government to establish rules specific to these types of employees, e.g. restrictions on ability to strike

In some jurisdictions, public sector disputes are heard by the same labour relations board as private sector disputes Other jurisdictions provide for separate public sector board • Where this exists, public sector labour relations board has same structure and function as “regular” labour relations board, but public sector board’s mandate is limited to interpretation/administration of public sector labour law only

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Occupation-Specific Labour Relations Legislation Some jurisdictions have additional labour relations legislation that applies to particular occupations or industries • Usually addresses specific conditions in occupations or industries that would not be adequately covered under regular labour relations legislation - examples e.g. police, fire, construction

Other Relevant Legislation Employment Standards Legislation • Exists in every jurisdiction •

Establishes minimum standards for working conditions in both union and nonunion workplaces through and Act or Code

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Usually covers e.g. working hours, minimum wages, holiday time, and time required for notification of termination or layoff

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Union collective agreements must not contain terms inferior to employment standards legislation - E.g., even if both parties agree to a minimum wage lower than that established by employment standards act, this would not be a legal agreement - Parties can negotiate better conditions than those specified in employment standards act (and usually do) but employment standards act ensures basic standards for all workplaces

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Human Rights Legislation • Exists in every jurisdiction •

Forbids discrimination against individuals on the basis of gender, ethnic origin, sexual orientation, etc.

“Discrimination” defined as: • Refusal to grant access to accommodation, contracts, goods and services, or employment because of an identified personal attribute (e.g., ethnic origin), known as protected grounds or prohibited grounds - E.g., cannot refuse to rent an apartment to someone because they are Aboriginal Members of particular groups may be legally excluded from employment in some cases. (e.g., A women’s prison may determine that male correctional officers are not suitable for a women’s facility) • This can only be done if there is an essential part of the job that can only be performed by members of certain groups e.g., it would be inappropriate for male prison guards to do body searches on female prisoners Two kinds of discrimination: • Intentional discrimination •

Systemic discrimination

Intentional discrimination: • Direct and deliberate refusal based on prohibited grounds E.g., previous example of refusing to rent an apartment to a Black person Systemic discrimination - Also called unintentional, constructive, or adverse impact discrimination •

Occurs when an organization or individual uses policies or practices that have the effect of discriminating against groups or individuals

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E.g., a policy requiring job applicants to be a certain height might eliminate many women and members of certain ethnic groups from consideration, even if they were otherwise qualified

Can occur even if there is no intent to discriminate - E.g., in example above, there might not be an explicit intent to remove some women and members of certain ethnic groups from consideration, but the policy would have the effect of discriminating against them - If a job requirement has such restrictions, employer needs to be able to show that restriction is related to some essential part of the job (e.g., height specification might be necessary for a worker to be able to effectively perform a certain job requirement)

Human Rights Legislation Implications for unions and employers: • Collective agreements must not intentionally or systemically discriminate - Language in collective agreement must not discriminate on protected grounds, e.g., cannot say men will be given priority in promotions, even if both parties agree to this language •

Unions and employers must not act in a discriminatory fashion - Unions must represent all of their members fairly, e.g., a union could not refuse to pursue an employee’s complaint simply because employee was Asian

Human Rights Commission • Structure and function similar to labour relations board - Also has quasi-judicial status •

Administers and enforces only human rights legislation - Hears and resolves complaints about discrimination, and also offers services to public e.g., education

Complaints • Individuals may file complaint with relevant human rights commission

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If it is substantiated, the Commission will investigate the complaint and suggest a remedy

Union members who feel their union has discriminated against them may file complaint with labour relations board • Unions have “duty of fair representation” and union members who feel union is discriminating against them can file a complaint with labour relations board alleging this duty has been breached •

Duty of fair representation discussed in Chapter 11

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The Charter of Rights and Freedoms • Guarantees certain basic rights and freedoms to all Canadians contained in the federal Constitution Act (1982) •

Takes precedence over all other laws, with two exceptions: - Laws that can be justified as imposing reasonable limits in a “free and democratic society” - Laws passed by provincial legislatures that invoke the “notwithstanding” provision

The Charter of Rights and Freedoms The Charter broadly defines a number of fundamental rights - Broad definitions do not include specific guidance on practical application - Applicability has mostly been determined through outcomes of “Charter cases” Major cases involving industrial relations issues have focused on these rights: • Freedom of association - E.g., freedom to join groups or to be associated with individuals of one’s choice •

Freedom of peaceful assembly - E.g., freedom to participate in demonstrations and public gatherings

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Freedom of thought, belief, opinion, and expression - E.g., freedom to express views through print or other means of communication

The Charter of Rights and Freedoms Key Charter cases: • Dolphin Delivery, 1982. Supreme Court of Canada (SCC) ruled Charter provisions do not apply to court orders resolving common-law-based disputes between private parties - Employees involved in dispute with employer wanted to picket at a business not on strike but doing business with their employer - Lower court granted the business an injunction to stop picketing; employees argued this restricted their freedom of expression, association and assembly - Supreme Court ruled that this situation would not be covered by Charter provisions because it involved a dispute based on common law and not Charter law •

The “labour trilogy,” 1990. SCC ruled that the right to belong to a union is protected by the Charter but the rights to strike and bargain collectively are not - Supreme Court ruled that the right to belong to a union is part of right to belong to, establish, maintain, and participate in an association - Supreme Court ruled that rights to strike and to bargain collectively are rights created by law and not fundamental freedoms protected by Charter

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Lavigne, 1991. The Supreme Court ruled that mandatory union dues do not violate the Charter - College instructor objected to portion of his mandatory union dues being used to support organizations he objected to - Instructor alleged that this violated his freedom of association, so question in case was whether “freedom to associate” also implies “freedom to not associate” - Supreme Court ruled that all individuals in workplace received benefits from union dues (e.g. representation in bargaining), so mandatory dues payment did not violate Charter provisions

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Supreme Court also ruled that as unions are democratic organizations, members are able (through voting or participation in union activities) to control how dues are spent

The Charter of Rights and Freedoms One further case…

• Dunmore v. Ontario (Attorney-General), 2001. The Supreme Court ruled that the right to freedom of association was violated if an entire class of workers – e.g., farm workers – was excluded from protection under labour legislation - In 1995 Ontario govt. repealed a law permitting farm workers to unionize - Gov’t.’s reasoning was that unionization would raise wages and cause financial difficulty for struggling family farms - Supreme Court did not accept this reasoning This subsequent law was the subject of another legal challenge that reached the Supreme Court; in that case (Ontario (Attorney General) v. Fraser), the court ruled that the Ontario law was constitutional, and dismissed the challenge.

Two more recent Supreme Court cases: - British Columbia health care unions (2007): BC government passed a bill unilaterally removing provisions forbidding outsourcing from collective agreement between unions and government. Supreme Court ruled that the right to collective bargaining was covered by the freedom of association

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guaranteed by the Charter. The government was ordered to pay $85 million for retraining workers who lost their jobs as a result of the legislation.

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Walmart (2009). Walmart employees in Jonquiere, Quebec, lost their jobs when the store was closed after a unionization attempt. Employees brought a lawsuit claiming they lost their jobs as a result of union activity and was therefore a change in their working conditions. The Supreme Court dismissed the case but the workers re-file their case under a different section of Quebec’s labour code. In 2014 the Supreme Court ruled in favour of the workers since Walmart was unable to prove that the store was unprofitable.

Walmart was ordered to pay compensation to the workers.

These ruling provide some indication of how the general principles expressed in the Charter may be applicable in the workplace. It remains difficult to specify the implications of the Charter provisions for union-employer relationships, as they remain untested and unaddressed at the Supreme Court of Canada.

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Characteristics of the unionized workplace in Canada • A unionized workplace is more likely to be in the public sector • A unionized workplace is more likely to be relatively large • Rates of unionization similar across broad industrial categories, but there are wide variations across different occupations • Union membership is slightly higher among women and older workers • Union members are relatively well-educated • Union members are more likely to be full-time employees

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Overview of Text Chapter 1 • Introduces theoretical and historical background, explains evolution of Canadian workplaces and relevant legislation Chapter 2 • Overview of theories and research addressing creation of unions, and how unions’ purposes have changed over time Chapter 3 • Historical events and forces affecting evolution of Canadian labour relations • Changes in labour legislation and the effects of globalization on workplaces

Overview of Text Chapter 4 • Structure of Canadian unions: national, provincial, municipal and local organizations Chapter 5 • Why employees may or may not wish to join a union Chapter 6 • How a labour relations board assesses a certification application

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Chapter 7 • The effects of a certification order Chapter 8 • The four stages of collective bargaining Chapter 9 • Strikes and lockouts Chapter 10 • Third-party intervention: conciliation, mediation and arbitration

Overview of Text Chapter 11 • Grievances Chapter 12 • Changes during the collective agreement: successorship; raiding and union mergers; decertification; technological change and workplace restructuring

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Overview of Text Chapter 13 • Recent changes in the Canadian workplace and their implications for unions and employers • Recent changes to labour legislation and their implications for the future of unionemployer relationships • Effects of globalization on industrial relations

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1. Arguments against using “industrial relations” as term to describe unionmanagement relationships: ▪ other terms can be used, such as “labour relations” ▪ may be confused with “labour law” or “labour legislation” ▪ unclear whether it should refer to both unionized and non-unionized workplaces Arguments for using “industrial relations” as descriptive term: ▪ preferred term in Canada ▪ emphasizes that there are two parties in the relationship ▪ indicates that relationship occurs in the context of a workplace ▪ non-unionized workplaces described by term “human resource management” ▪ much research on non-unionized workplaces focuses on how those workplaces replicate structures found in unionized workplaces, so non-union “industrial relations” research is closely related to research on unionized workplaces 2. The field of industrial relations (I.R.) can be characterized as multi-disciplinary because it has drawn on historical research in many other fields (e.g., law, political science, economics) and because the topics it addresses are also studied in other academic fields. This can be negative because it means there is no single unifying theory in the field, and thus no definite “right” answer to industrial relations problems, but it is also positive because the insights gained from the various fields related to I.R. give a richer understanding of complex situations.

3. The term “industrial relations” usually is used to refer only to unionized workplaces.

The term “human resource management” usually is used to describe both unionized and non-unionized workplaces. However, both deal with workplace issues such as procedures for hiring, discipline, and policies regulating promotion.

4. Canadian labour legislation generally includes the following characteristics: ▪ procedures to legally recognize the union as the representative of employees in a workplace (certification) ▪ a requirement that collective agreements have a minimum term (usually one year) ▪ procedures that must be followed for a strike or lockout to be legal, and some language governing related activity such as picketing or the use of replacement workers ▪ procedures to resolve disputes during the term of the collective agreement (grievance procedure) ▪ outlines for acceptable behaviour by unions and employers (unfair labour practices) ▪ establishment of a labour relations board to administer and enforce labour relations law

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5. The “interprovincial component” determines whether an organization is under the jurisdiction of federal or provincial labour law. If an organization’s activities regularly cross provincial boundaries, then it will be under the jurisdiction of federal labour law.

6. Some of the reasons for the current characteristics of Canadian unionization: ▪ Unionized workplaces are more likely to be in the public sector. This is because of extensive organizing in the Canadian public sector in the 1960s and a relatively low rate of decertifications in this sector.

▪ Unionized workplaces tend to be larger than non-unionized workplaces. This is because unions are more likely to organize larger workplaces or companies, because of the larger increase in membership that results from a successful organizing campaign.

▪ The rates of unionization are similar across broad industrial categories.

▪ Union membership is higher among women than among men. Traditionally, men have more consistent work patterns than women (men generally have fewer extended absences from the workforce) and therefore have more opportunity to be union members, Men tend to work in industries and occupations that have traditionally higher rates of unionization (e.g., trades, production). However, women tend to work in industries and occupations that have not been affected as much by recent economic trends, so union membership among women has not decreased as much as union membership among men.

▪ Union membership is higher among older workers (45 and over) than younger workers. Since the overall rate of unionization has been slightly declining over the past 30 years or so in Canada, older workers have been in the workforce during the time when unionization was more prevalent. Also, younger workers tend to enter industries, occupations and work arrangements with low rates of unionization (e.g., service work, part-time work).

▪ Union members are relatively well educated. This can be attributed to the high rate of unionization in the public sector, which includes many professional jobs and jobs in which post-secondary education is a requirement. Also, the levels of education in the workforce as a whole are rising.

▪ Union members are more likely to hold full-time jobs than part-time jobs. This is because unions prefer to target organizing campaigns toward employees in stable work arrangements who will be long-term union members. Also, part-time employment is more common in sectors of the labour market with low rates of unionization (e.g. service jobs).

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TEACHING NOTES FOR CHAPTER 1 EXERCISES 1. This exercise asks students to describe their previous experiences with unions and their feelings about unions and industrial relations. This exercise is useful for students in benchmarking their knowledge at the start of the course, and giving them a comparison point at the end of the course to assess what they have learned. This can also be a useful exercise for the instructor in assessing the class members’ background in industrial relations, and to determine at what level of understanding the course material should be directed.

This exercise is also useful to determine whether any class members have extremely strong pro- or anti-union attitudes. In many classes there will be a range of experiences and a mix of attitudes. Sometimes students with strong attitudes will be extremely vocal in arguing their position, and/or may be concerned that they will not do well in the course if their attitudes do not match the instructor’s (or their perception of what the instructor’s attitudes are). It may be worthwhile at the start of the class to establish (as mentioned in the book) that the purpose of the course is not to force students to change their minds about industrial relations, but to present material that will assist them in developing informed opinions. It may also be worthwhile to establish some ground rules about respectful discussion and acceptable behaviour toward other class members, since discussion on industrial relations topics can become heated.

2. This exercise asks students to think about the benefits and drawbacks of unionization for workers and for employers. Some commonly cited reasons are: For workers: Benefits ▪ collective agreement as common set of rules for workplace ▪ usually higher wages and better benefits than non-unionized workplace ▪ consistent and fair treatment for all workers; formal appeal process for dispute resolution (grievance procedure) ▪ social benefits from union membership and “belongingness”; union as source of information/support when problems arise Drawbacks ▪ collective agreement may not be flexible enough to accommodate all workplace or worker situations ▪ bureaucracy, inflexibility, dysfunction within union itself, resulting in poor representation for membership and member dissatisfaction with union activities ▪ benefits/payback from regular payment of union dues not always apparent ▪ perceived excessive cost of union dues ▪ impact that job actions e.g., strikes, have on individual members

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For employer: Benefits ▪ collective agreement establishes mutually agreed upon rules for workplace ▪ collective agreement provides consistent guidance for management in running workplace ▪ employer only has to negotiate terms of employment and workplace rules with one unit instead of with each individual worker ▪ mutually agreed upon process available for dispute resolution (grievance procedure) Drawbacks ▪ lack of flexibility or discretion in managing operations (have to follow rules in collective agreement) ▪ inherently adversarial nature of relationship with union ▪ time and effort needed to negotiate collective agreement ▪ possible harm to business if strike or lockout occurs ▪ extra cost of higher wages and better benefit in comparison to what non-union employers usually pay Going through this exercise will help students to identify the amount of knowledge they have about how unionized and non-unionized workplaces operate. Listing the sets of “pros” and “cons” will also introduce many issues that will be discussed later in the course.

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 1 TOPICS Industrial Relations Research http://www.cira-acri.ca/ The website of the Canadian Industrial Relations Association, the association for Canadian industrial relations researchers and professors.

Supreme Court of Canada http://www.scc-csc.gc.ca Employment Standards Acts Human Rights Acts The relevant legislation for each jurisdiction can be found through the government’s home pages. It is usually necessary to know the name of the specific piece of legislation to locate the complete text (see Tables 1-1 and 1-2).

Federal: http://www.hrsdc.gc.ca/eng/labour/labour_law/index.shtml Alberta: http://www.gov.ab.ca British Columbia: http://www.gov.bc.ca Manitoba: http://www.gov.mb.ca New Brunswick: http://www.gnb.ca Newfoundland & Labrador: http://www.gov.nf.ca Nova Scotia: http://www.gov.ns.ca Ontario: http://www.gov.on.ca Prince Edward Island: http://www.gov.pe.ca Quebec: http://www.gouv.qc.ca Saskatchewan: http://www.gov.sk.ca These sites also contain links to each jurisdiction's human rights commissions and employment standards tribunals, which give information on filing complaints and the resolution of complaints.

The Canadian Legal Information Institute site also has a section for each jurisdiction which includes links to the full texts of legislation, and links to the jurisdiction’s labour relations board, human rights commission, and employment standards tribunal. http://www.canlii.org/en/

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CHAPTER 2 Theories of Industrial Relations LECTURE NOTES

Chapter 2 Objectives At the end of this chapter, you should be able to: • Describe how the structure of work has changed over time • Identify the functions of early forms of unionism • Outline the conditions that gave rise to the modern trade union • Describe the theories of authors who discuss trade union origins, functions, and futures

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The Origin of Unions Craft guilds • Emerged in Europe in the 14th century and North America in the 17th century •

Members of a single trade: e.g., weaving, woodworking, metalwork or pottery - Main reason for this restricted membership was the way that work was structured at the time

Craftspeople: • Worked at home or in small, shared community workshops - Worked in communities where they lived •

Usually owned their business - Similar structure to modern self-employment

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Produced custom goods; responsible for all steps of production process - Goods produced to order of customer; craftsperson would carry out work of production, although some parts of job might be given to apprentice or to specialist in another craft

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Marketed and distributed own products, in own community - No wholesaler or other intermediary between producer and consumer - Limited transportation meant market was in most cases limited to craftsperson’s own area - Craftsperson responsible for identifying and serving own customers

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Worked at own pace - Decided which projects to undertake, how work would be carried out, and how business would be administered

Craftspeople were on their own if they became sick or injured • No formal support system to deal with unforeseen events

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Success in self-employment required ongoing good health, the ability to work, and upto-date skills to meet market needs Little opportunity to develop skills • Demands of self-employment left little time for new skill acquisition or skill development Craft guilds emerged as a means of addressing these problems

The Origin of Unions Functions of craft guilds • Supplied a form of unemployment insurance - Membership dues used to create fund for payments to members unable to work - Guild might also supply replacement craftsperson to keep business going •

Ensured adequate supply of craftspeople - Craft guild provided formal training for new practitioners by arranging apprenticeships with skilled workers

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Provided a form of quality control - Guild members would not share skills or work with non-guild members, so customers were assured of consistent skill level and adequate training for guild members, and consistent product quality - Able to maintain a form of monopoly by encouraging guild members to charge similar prices and to not undercut each other

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Educated their members - In addition to apprenticeships, provided ongoing professional training and information for members - Some guilds in more populated areas also reduced production costs for members by buying raw materials in bulk

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The Wool Guild and the “putting out” system challenged the power of craft guilds • Wool Guild was created in14th century Italy to displace clothmakers’ guild - Merchants wanted to counteract power of clothmakers and regain control over cloth industry - Merchants controlled supply of raw materials and production of finished products - Changed method of production from single person doing all steps to many workers with each performing a single step •

Distributed finished products - Merchants, rather than craftspeople, controlled market

•

Enforced division of labour - Faster production but less money for workers; workers were paid for amount of production, not for quality of product - Each worker became very skilled at his or her individual task, but was not skilled at other tasks, so could not command craftsperson’s wages - Worker was responsible for supplying tools and place to work, so producer had low overhead costs and thus made higher profit - This form of production was prevalent throughout all of Europe by the end of the 18th century

The Origin of Unions The Industrial Revolution • Began mid-18th century - Mechanization and industrialization on large scale made possible by new inventions •

New technology meant great increases in production capacity, less demand for skilled workers - Machines could produce more quickly and in greater quantities than could individual craftspersons - Machines could carry out many parts of production formerly performed by workers

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Large-scale factories were built, raw materials and finished goods were marketed at great distances - Land was available at low cost which facilitated factory development - Improvements in communication and transportation increased access to distant markets and ability to get goods to those markets

The Origin of Unions Substantial changes in work and workplaces: • Workers required to work in factories, so many had to move to cities - Factories were centralized places of production; workers could not work at home - Most factories located in urban areas so many workers had to leave rural communities to find work •

Production broken down into distinct stages, some or most handled by machinery - Workers did one or a few small parts of job rather than entire job as before

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Work tasks required little skill, so workers could easily be replaced - Production process was designed so that tasks performed by workers were specialized and required little skill - Low skill levels meant less time lost to training and to finding replacement workers

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Control over work passed from workers to factory owners - Factory owners decided what products would be produced, designed the production process, controlled how labour was used in production, and paid whatever wages they felt were appropriate

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The Origin of Unions The Industrial Revolution produced horrific working conditions • Wages declined - Competitive markets exerted pressure to keep prices low, so goods were produced at lowest cost possible •

Owners had little consideration for worker safety - Factories operated continuously to satisfy consumer demand for goods - Low skill levels for jobs meant that injured workers could be quickly replaced

•

Men, women and children worked side-by-side in grim conditions - Cost of living in urban areas meant that most families needed more than one income - Children actually were preferred as workers for some jobs because of small size and dexterity - Some rural children sent by impoverished parents to work in urban factories and live in sheds near factories - In Britain, laws restricting use of child workers not passed until 1819

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Almost no protection for adult workers; sick or injured workers were usually fired - What laws did exist were not strongly enforced because of lack of factory inspectors - Easy to replace fired workers because of specialization and simplification of work tasks

The modern trade union developed largely because of these conditions.

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Theories of Union Origins Sidney and Beatrice Webb • English authors and socialists - Advocated not only reform of working conditions but also larger societal problems which in their opinion led to those conditions - Produced two important books based on their research of trade unions •

Concluded primary purpose of trade unions was to improve members’ lives - In particular, working lives, which were affected by working conditions

•

Suggested that unions emerged primarily because of the separation between capital and labour caused by industrialization - Before Industrial Revolution, workers invested in own work (provided capital and equipment for their self-employment) and provided labour, and gained all financial benefits from sale of their work - After Industrial Revolution, workers still provided labour, but factory owner provided capital and controlled how labour would be used - Unions emerged primarily because of the separation between capital and labour caused by industrialization

•

Separation meant capitalists could exploit labour to maximize return on investment - Minimizing wages was one way to reduce production costs and increase profits - Manufacturers had less freedom to individually adjust selling price of goods in a competitive market, so there was more pressure on manufacturers to keep production costs low to ensure profits - Unions served to counteract these pressures on wages and working conditions, and also to serve larger purpose of representing workers’ interests e.g., to government or regulators

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Theories of Union Origins The Webbs identified three "methods" used by unions to achieve their goals: • Method of mutual insurance - Unions accumulated funds from membership fees and used those to support workers unable to work - Two kinds of support: - “benevolent”/”friendly” for sick, injured, or laid-off members - “out of work” for members whose tools were lost or whose factories were closed - This method improved workers’ lives by providing support for those who could not work through no fault of their own •

Method of collective bargaining - Unions acted as worker representatives in negotiations with employer - This method improved workers’ lives by ensuring fair and consistent workplace rules and adequate wage rates

•

Method of legal enactment - Unions lobbied government for laws ensuring basic minimum employment standards - This method achieved goal of representing workers’ interests at higher levels than individual workplaces

Two "devices" used by unions to ensure they truly represented their members: •

Device of the common rule - Unions fought for better conditions for all workers, not just union members - Use of this device increased support for unions, since non-union members would be impressed by the unions’ work and want to join union themselves

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Device of restriction of numbers - Unions limited their membership through e.g., membership qualifications such as apprenticeships - Restriction of numbers gave unions more bargaining power with employers because union was able to control supply of skilled labour - Webbs did not agree with use of this device; they felt that restrictions caused injustice in the labour market by limiting access to some kinds of work

Theories of Union Origins Selig Perlman • Born in Poland, immigrated to U.S. • Interested in contrasts between Marxist and capitalist labour systems • A Theory of the Labor Movement, his major work • Emergence of capitalism one of the catalysts for emergence of unions - Capitalism based on separation of capital and labour - However, workers were only one part of society and historically were a part that had less power and influence •

Unions need the support of the middle class - Unions could not survive if only supported by workers - Unions’ concerns would be more widely noticed if there was support for them throughout society - Unions need to respect some basic tenets of capitalism, such as private property - Respecting capitalism would make unions be perceived as cooperative rather than radical and gain them more acceptance

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Theories of Union Origins • Unions most effective if motivated by psychology of the labourer - Labourers had experienced scarcity of work, unlike middle- or upper-class individuals - Labourers’ primary concern would therefore be security of employment - Labourers would not be distracted by socialist or intellectual idealism (more concerned with practical issues) - Middle- and upper-class individuals might be sympathetic to unions, but they would not have shared labourers’ experience, and would thus not be as sensitive to their concerns - Middle- and upper-class individuals would have more theoretical rather than practical ideas about unions - Allowing middle- and upper-class individuals to dominate unions would not permit unions to function in the ways needed to support labourers (the members unions were intended to support) - Unions should not worry about gaining ownership of businesses; should instead focus on economic security & opportunity for members - This strategy would create stable long-term basis for union existence

Theories of Union Origins John Commons • Investigated the emergence of unions as a response to changes in the economic system and the subsequent changes in the structure of work - Focused primarily on emergence of unions in United States

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Saw unions as part of a larger economic, industrial, and political framework

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Development of competitive markets drove the formation of unions - Competitive markets caused by capitalism separated workers from distribution and sale of their work - Workers created product but were not responsible for transporting it to buyers or determining a competitive selling price

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Unions would help to ensure that competition in markets was based on quality of product - A competitive product would not be the one that was cheapest but the one that was best made and gave greatest value to consumer - If unions represented a large enough group of workers, they could pressure employers for wages that represented workers’ contribution to making of a quality product - Commons called this “taking [wages] out of competition”

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Transportation and communication improvements allowed for the development of national and international unions - Transportation and communication usually portrayed as providing increased opportunities for capitalists - But unions could also use better transportation and communication to organize workers in other areas who engaged in same trade or occupation

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Functions of Unions Robert Hoxie Unions could emerge in any workplace with a “class consciousness” - Any group of workers with shared interests and common goals could form a union, regardless of their social class or the type of work they did Identified four “functional types” of unionism: •

Business unionism - Protecting workers in a particular occupation or trade, primarily through collective bargaining

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Friendly or uplifting unionism - Improving workers’ standards of living and thereby improving society at large - Also allowed workers to develop sense of membership or belonging

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Revolutionary unionism - Engaging in political action or direct action - Long-term goal of changing class structure of society as well as short-term goal of gaining worker power

•

Predatory unionism - Concerned with gaining power through any means possible, including illegal means - Often operated in partnership with employers

Unions could serve more than one of these functions at a time - Important to understand which of these functions unions served if trying to understand why they acted as they did - Union might move from one function to another as union developed or as workplace or employer changed

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Functions of Unions E. Wight Bakke - a Yale University Professor Workers join unions to reduce frustration and anxiety, and to improve the opportunity to achieve specific “standards of successful living” - If workers perceive that unions will accomplish these goals for them, they will join; if not, they won’t Five factors make up standards of successful living: •

Social status - Union membership or participation (e.g. on union executive) can give status and respect which may not be otherwise available to worker

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Creature comforts - Union gives workers enough influence in workplace so that they can achieve similar standard of living to that of their peers

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Control - Union gives workers formal influence over their working conditions

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Information - Unions provide workers with information on companies, economy, and society at large; also formally educate workers on labour-related matters

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Integrity - Union membership can enhance workers’ sense of self-respect and fairness

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Functions of Unions John Dunlop – professor at Harvard University Developed systems theory of industrial relations – looked at how unions fit into larger social systems - How unions interact with other organizations or stakeholders and what rules guide those interactions - Based on general principles of systems theory Three independent components to an organization under systems theory: •

Inputs - E.g., raw materials, resources

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Processes - Means by which inputs are translated into outputs (e.g., production machinery)

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Outputs - E.g., products and services

Functions of Unions Systems theory emphasizes not only the distinct parts of an organization, but the interrelationships between those parts

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E.g., if auto plant produces minivans, it does not need raw materials or production machinery to make convertibles However, e.g., if auto plant wants to produce vans in four colours but painting machinery only has capacity for three colours, either manufacturer has to revise expectations or production process will have to be redesigned

Systems theory also looks at how an organization is affected by the external environment - Factors in the environment outside the organization (e.g., availability of raw materials, government regulations) can also affect what organization does or is able to do

Functions of Unions Three “actors” in Dunlop’s industrial relations system: • Unions - Representative of workers •

Management - Employer/the organizations

•

Government/private agencies - Participates in system through creating legal rules that govern it

“Actors” can also include any other external stakeholders, e.g. customers or business partners

Each actor has a distinct ideology. But the actors also share an ideology that maintains stability within the system - Ideology = set of values and beliefs that determine actions within the system - Each actor has a different ideology e.g., management believes it has right to govern workplace, while unions believe workers have right to influence workplace decisions that affect them - These ideologies may be in conflict with each other - However, the actors share a common ideology about the value of the system itself and their participation in it as a method of conflict resolution Instructor’s Manual

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Actors bring inputs (ideologies and positions on issues) into system; processes are e.g., collective bargaining and grievance processes; outputs are e.g., collective agreement and grievance resolution System is governed by informal and formal guidelines which are influenced not only by unions and management but also by external stakeholders

Functions of Unions Dunlop identified four contexts within which the actors interact: • Technological context - E.g., skill level of workers, job content •

Market context - E.g., labour markets, product markets

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Budgetary context - E.g., financial resources available to parties

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Power context - Amount of power parties have or are able to generate to gain their desired outcomes

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Negotiated rules − may be influenced by other actors or contexts, e.g., government legislation

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Rules governing the process underlying how the rules themselves will be determined - E.g. rules for how legislation is changed - Rules also affected by feedback; actors monitor system and its outputs to see if rules are working and alter them if not

Functions of Unions Dunlop and co-authors argued that unions emerged as a response to industrialization, not capitalism. They believed industrial relations systems in industrialized countries would eventually converge - Process of industrialization very similar in most countries/regions - However, markets and economies are substantially different in different geographic areas - Consistency in industrialization process would result in union functions and actions being similar even if markets and economies were different - Major exception to this would be in Communist countries where unions were controlled by Communist party and were not as independent in representing workers’ interests

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The Future of Unions Karl Marx and Friedrich Engels Identified the emergence of unions as one symptom of ongoing class struggle Saw unions as means by which workers could avoid exploitation by the upper classes - Unions would counteract the power of the upper classes because they would unite workers in a large body - Unions would also enlighten workers about the injustice of their position in society Believed unions by themselves would not be enough to end the exploitation of workers - Unions would not be powerful enough to protect workers on their own since many forces of capitalist system, not just workplaces, are “against” workers Argued that unions would require a larger political purpose as a vehicle of class discontent - Continued operation of capitalist system was dependent on maintaining large class of workers earning substandard wages - Low wages for workers meant more profits for upper classes and a continued source of wealth that could be reinvested to maintain the upper classes’ dominance - Unions would need a reason to exist after workers’ concerns were addressed This discontent would eventually contribute to the overthrow of capitalism and the development of a classless society - Workers could use improved communication to form national, rather than local, groups - Once workers realized the power that could be exerted through a group like a union, they would use collective power to break down oppressive structures in society - Class system would disappear because all individuals would be equally represented and have equal power in decision-making

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The Future of Unions Harry Braverman Ongoing attempts by management to increase control over workers and workplaces - Management techniques such as industrial engineering and scientific management are part of this campaign, developed in the 1900s -

Work broken down into small, simple, repetitive components Process of work is designed to maximize production and minimize skill requirements Still used in the design of production processes today

Two general methods of increasing management control: •

Deskilling - Formerly skilled tasks specialized or subdivided so that dependence on skilled labour is reduced or eliminated

•

Controlling the methods by which work is done and its pace - E.g., outlining specified steps which are to be performed in completing a task, setting time guidelines for each part of a job

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Result is continual downward pressure on wages and reduced opportunity for workers to develop skills Unions would likely attempt to counteract these constraints

The Future of Unions Thomas Kochan, Robert McKersie, and Peter Cappelli Built on Dunlop’s systems theory of industrial relations, but argued it should include larger societal and international framework that employers now operates within - This framework influences employer-union relationship at the workplace level e.g., international trade agreements may affect terms in individual collective agreements Employer’s role is no longer passive; employers are now more sophisticated and are active participants in industrial relations - Earlier industrial relations theories suggested that employer only responded to what union brought to its attention - Employers are now more proactive rather than reactive, and are actively trying to manage relationship with union - E.g., in US some employers are lobbying for legislative changes to reduce union power, there are professional strikebreaking firms, and non-unionized organizations are intimidating union organizers Unions need to recognize this fundamental change if they are to remain effective worker representatives - Not all employers engage in extreme actions, but employer’s change from passive to active role in industrial relations system affects quality of unionemployer relationship - Decisions made at strategic level affect this relationship

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The Future of Unions Industrial relations are now, more than ever, integrated into the overall strategy of an organization. Unions must move beyond narrow workplace concerns and attempt to be included in decisions at the highest strategic levels of the organization - Inclusion in these decisions could be informal, e.g. consultations, or formal, e.g. worker representative on board of directors - Unions will have to rethink adversarial attitudes and strive for a more cooperative relationship with employer - Unions must emphasize common goals with employer, e.g. long term survival of company - Cooperative high-level relationships are more appropriate than adversarial bargaining for addressing strategic issues

The Future of Unions Richard Chaykowski and Anil Verma Address some of the same issues as Kochan, McKersie and Cappelli, but within a Canadian context - Acknowledge shortcomings of workplace-level industrial relations. interactions with short-term focus Changes in Canadian management practices and attitudes not as extensive as in U.S. The Canadian system is relatively stable due largely to higher levels of unionization

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Canadian employers have experimented with different industrial relations and human resource management practices but have not generally engaged in extreme actions like U.S. employers The lack of extreme action may be Canadian legislation is stricter than U.S. legislation in restricting employer actions

Support the need for union cooperation but note that Canadian unions are likely to resist such relationships - Canadian unions may see cooperation as weakening their ability to resist management demands in the future - Union members might see cooperation as “selling out” and indication that their interests are not being strongly represented

The Future of Unions Unique Canadian trends • Technologically driven shift in economic activity toward providing services - Decline in employment in production industries, increase in employment in service industries - Flatter organizational structures, reduced workforces - However, Canadian unions have been more successful than US unions in organizing service-based workers •

International trade agreements could further contribute to job loss and declines in union membership, and weaken power of unions - Jobs may be moved to other countries with lower wage costs or weaker workplace regulations - Canadian unions may be seen as excessively powerful compared to US unions

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Other Factors Affecting the Future of Canadian Unions Decrease in number of public sector jobs = decrease in rate of unionization - High rate of unionization in Canada (as compared to US) partially due to high rate of unionization in public sector - Since 1990s, the number of public sector jobs has stayed steady or has decreased which has decreased the overall rate of unionization in Canada Governments more willing to use tactics to counteract power of public sector unions - E.g. legislation to restrict unions’ power - E.g. outsourcing work or jobs to non-union workplaces Canadian unions not proactive in internally restructuring or in developing new strategies for changing workforce - Have not actively responded to changing work realities - Have not actively responded to demographic changes in work force - This may limit their potential for future growth

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1. Craft guilds supplied insurance for their members who were unable to work. Some also provided substitute craftspeople who would keep a business operating while the craftsperson was unable to practice his or her craft. Craft guilds also provided training to ensure an adequate supply of practitioners of the craft. This training usually took the form of schemes like apprenticeships. This ensured quality control in the practice of the craft, since all apprentices would have to demonstrate their mastery of skills in the craft before being admitted to the guild. Customers could thus be assured that products made by guild members would have a consistent level of quality. Guild members would usually refuse to work with, or to share skills with, non-guild members. Guilds also encouraged their members to charge consistent rates for their work, so that guild members’ businesses would not be undermined by cut-price competition. Guilds also provided ongoing education and training for the craft’s practitioners, and in some cases were able to reduce their members’ production costs by purchasing supplies or raw materials in bulk.

Some craft guild functions are now carried out by organizations that are not unions – for example, payments to workers who are unable to work are provided through government-funded plans such as employment insurance and workers’ compensation. However, unions have continued other functions of craft guilds, such as providing apprenticeship schemes for training, encouraging union members to avoid working with non-union members, and offering ongoing education and training to union members.

2. Industrialization had a major impact on working conditions. Mechanization allowed jobs to be simplified and subdivided so that minimal job skills were required. Many parts of production that were formerly done by hand could now be done by machines. The place of work also changed; workers worked in factories rather than at home or in workshops. Most factories were located in urban areas, so rural workers were forced to move to a city. Wage rates in factories were considerably lower than those formerly paid to skilled craftspeople, so family income had to rise to meet the increased costs of urban living. This often meant that more family members, including women and children, had to work. There were no plans to support workers unable to work, as had been available in the guild system, so factory workers who were injured or ill were usually fired. There were also minimal health and safety standards in factories.

3. These writers (the Webbs, Perlman, Commons) see the emergence of unions as a response either to the conditions created by industrialization or to the emergence of competitive markets. They also see unions as a means for workers to have an influence on their workplaces or working conditions, and they acknowledge that union-employer relationships are also influenced by external factors such as societal class systems and market conditions.

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The relevance of these themes to new unions in the 21st century would depend on which new unions are being discussed, but it is still obvious that workers join unions so as to have some say in decisions involving their workplaces. The influence of competitive markets is also important, particularly as markets become global rather than local or national. (Chapter 13 discusses some of the effects of global markets on Canadian union-employer relationships.)

4. Hoxie identified four “functional types” of unionism: business unionism, friendly or uplifting unionism, revolutionary unionism, and predatory unionism. At least two of these functional types are apparent in the operations of most modern unions. Unions still perform the “business” functions of protecting and representing workers. Unions also provide the “friendly” functions of providing opportunities for social interaction among members, and lobbying for improved standards of living in society at large (e.g., organizing campaigns for better employment-related legislation). Revolutionary unionism is less apparent, at least in the form of “direct action” that Hoxie describes, but revolutionary unionism can be seen in large-scale union actions such as protests. Predatory unionism can possibly be seen in union actions such as raids on other unions’ membership, but unions operating in collaboration with employers for unethical outcomes is hopefully less common than it was in Hoxie’s time.

5. As with Question 3, the answer to this question would depend on which unionemployer relationship is being analyzed. However, a complete answer would identify each of the actors that participate in the relationship, and their individual ideologies; identify the specific inputs, processes, and outputs of that bargaining relationship; and determine whether the four contexts that Dunlop identifies (technological, market, budgetary, power) have any effect on the relationship.

6. Braverman’s theories of managerial control are supported by the prevalence of deskilling in organizations (e.g., the division of work at fast food restaurants, where some tasks are so simplified that the worker does not even need to be literate or numerate to successfully perform job tasks). Respondents to the question may be able to provide specific examples from their own experience of managers choosing technologies or processes that are economically inefficient but which increase the employer’s control over workers.

The major counterarguments to Braverman’s theories are that a manager in the workplace is there to exercise control over workers, and inefficiencies and wastage could happen without that control. Additionally, continual choices that economically inefficient will financially harm the organization (and the reputation of the manager making those choices). So there is a large incentive for managers to make economically rational choices.

7. Arguments supporting the need for cooperation could refer to such points as the long-term damage to employer-union relationships caused by ongoing hostility; the costs (e.g. financial, resources, time, emotion) incurred by confrontation; the recognition that employers and unions have many goals in common, such as the

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continued existence of the organization; and the increased pressures on organizations caused by globalization and competition, which may require unions and employers to broaden their views of issues beyond their own personal interests.

Arguments against union-management cooperation could refer to such points as the inherently different workplace interests of unions and employers; the imbalance of workplace and bargaining power between unions and employers, which may require the less powerful party to be aggressive and confrontational to achieve desired outcomes; and the possibility that cooperation by one party may lead the other party to expect acquiescence in the future.

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TEACHING NOTES FOR CHAPTER 2 EXERCISES 1. This exercise asks students to read the news story in the chapter (p. 41) and to identify which of the theories discussed in the chapter are the most relevant to explaining the situation.

There are numerous possible responses to the questions posed in this exercise. For example: -

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The Webbs’ concept of “method of collective bargaining” is apparent in the pilots wanting to be represented by a legally certified union that would formally advocate for their interests.

Hoxie’s concept of “class consciousness” is evident in the pilots’ recognition of their common experience as trained and skilled professionals in a specific occupation.

Dunlop’s systems theory of industrial relations could be used to analyze the complex relationships between the multiple parties in this situation (e.g. the airline, the non-unionized pilots’ association, the newly formed pilots’ association that wants certification, the airlines’ customers, and the context of the airline’s distinctive culture).

Students undertaking this exercise should be expected to identify specific information in the news story that supports their choice of theory, and also to explain what outcome to the situation the theory would suggest.

2. This exercise asks students to gather information about a specific union and to explain whether or how that information supports any of the theories outlined in the chapter.

As with Exercise 1, students should be expected to convincingly demonstrate how their chosen theories relate to the information they have collected. Students should also be encouraged to explore any information contradicted or not explained by the theories, and to explain why, in their opinion, these discrepancies exist.

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 2 TOPICS Sidney and Beatrice Webb http://blogs.lse.ac.uk/diversity/2011/03/lse-women-beatrice-webb/ Selig Perlman: A brief biographical sketch http://www.infoplease.com/ce6/people/A0838461.htm John Commons: Commons’ citation in the U.S. Department of Labor’s Labor Hall of Fame http://www.dol.gov/dol/aboutdol/hallofhonor/1989_commons.htm http://www.bls.gov/mlr/1989/05/art4full.pdf Karl Marx and Friedrich Engels: The Australian National University on-line version of The Communist Manifesto http://marxists.anu.edu.au/archive/marx/works/1848/communist-manifesto/index.htm Anil Verma: Biographical information, and links to publications, course materials, and other writings. http://www.rotman.utoronto.ca/~verma/

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CHAPTER 3 History of the Canadian Union Movement LECTURE NOTES

Chapter 3 Objectives At the end of this chapter, you should be able to: • Describe the geographic, cultural, economic, and political factors that are relevant to Canada • Identify the major events in Canadian labour history • Understand the role of craft and industrial unionism in shaping Canadian union structure • Discuss how American unions have influenced Canadian unions • Identify some of the regional differences in Canadian labour history

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History of Canadian Labour Movement Canadian characteristics that have shaped labour history: • Physical geography • large size • harsh weather • most population located close to US border Canada’s large size meant most early unions were local or regional Resource-based industries are difficult to organize because of isolated or remote worksites Proximity to U.S. influenced Canadian unions - Difficult to organize workers across Canada because of distance, transportation, communication problems - Resource-based workers often located in remote areas; resource work often seasonal, so no stable workforce to organize - Competition between Americans and Canadians for jobs in Canada, and between American and Canadian unions for members

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• •

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Cultural mix • Immigrants with organizing experience helped develop Canadian unions • However, unions have not always responded well to culturally diverse workforces - Organizing experience in other countries helped immigrants to participate in forming early Canadian unions - Some Canadian unions have histories of racial and cultural discrimination

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Economic system • Historically based in primary and secondary industries, but toward the end of the 20th century, role of tertiary (or service) industries had grown • Canada’s reliance on trade for economic activity has challenged unions - Canadian economy is more susceptible to external influence - Canadian unions have historically focused on organizing within primary and secondary industries

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Pressures caused by trade have resulted in jobs moving outside the country, and pressure on Canadian employers to match international standards (often inferior to those in Canada)

Political structure • Division between federal and provincial jurisdictions has allowed for experimentation and reform - Lack of centralization has allowed development of legislation appropriate for each area - This is in contrast to US where most labour legislation is centralized - However, the lack of centralization in Canada has also caused difficulties in large-scale attempts to organize because of multiple jurisdictions/laws

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Early Canadian Unionism: the 1800s The “period of local unionism” Earliest attempts to organize followed the craft union model - Limited to specific geographic areas and small groups of workers - usually in one trade - This model allowed unions to focus on issues of concern to their particular trade or region Two main reasons for the popularity of this model: • Size of Canada - Difficulties of transportation and communication over long distances made local organizing more practical - Localization meant there was no need for unions to balance concerns of workers in different geographic areas •

The need to protect wage rates for workers in skilled trades - Particularly important in areas where trades expertise could not easily be replaced - Unions could control markets for their members’ skills

Canada’s role as exporter also contributed to popularity of craft unionism - Export-driven demand created domestic production opportunities

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Skilled tradespeople’s work was needed to support increased production, which gave tradespeople more bargaining power

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Informal workers’ groups formed as early as 1827 - Protested poor wages and working conditions - May have been modelled on fraternal or social societies that workers already belonged to - Expertise from participating in these societies gave workers the skills to create and operate workers’ groups

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First formal unions emerged around the same time as informal alliances - historians differ on which was the first Canadian union - Printers’ union in Quebec City in 1827 - Shoemakers’ or tailors’ union in Montreal in 1830 - Nova Scotia government regulated “journeymen workmen” groups in 1816 - 10 different trade associations in Saint John, NB, by 1840

Early Canadian Unionism: the 1800s • Prevalence of craft unionism did not encourage alternative model, known as industrial unionism - Craft unionism initially inhibited any wider union growth because of restrictions on membership •

Industrial unionism focuses on “strength in numbers” - Maximizing power by recruiting as many union members as possible, regardless of their occupation - Several early unions chose craft model specifically to exclude certain types of workers (e.g., early miners’ unions in British Columbia excluded immigrant Chinese workers)

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The next major expansion of the Canadian labour movement came through affiliation with international unions, usually based in the U.S. - Canadian union movement had already been informally influenced by immigrant workers with experience in British trade unions - Some locals of British unions established in Ontario in mid-1800s

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Mid- and late-1800s saw the continental movement of U.S.-based unions entering Canada

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Continental movement restricted primarily to Ontario and other regions with trade links to U.S. - Easy mobility of skilled workers between Canada and U.S. made it logical for Canadian locals of American unions to be established

Early Canadian Unionism: the 1800s • Canadian unions began to cooperate in late 1800s: - unions began to cooperate – e.g., the Nine-Hour Movement (1872) which fought for regulated length of work day - employers resisted Movement, resulting in Toronto typesetters’ and printers’ strike •

At the time, there was almost no Canadian legislation specifically addressing industrial relations issues

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The British government had used “criminal conspiracy” or monopoly laws to block union organizing until 1871, when it passed the Trades Union Act, establishing the right of workers to organize a union - Monopoly laws were designed to stop merchants or traders from colluding to dominate a market - Basis for using monopoly laws to block union organizing was the argument that unions colluded to dominate labour market - Although Canadian legal system was dominated by the British system at this time, Canada did not pass its own version of Trades Union Act

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Monopoly laws were used in Canada to arrest and charge 24 leaders of the Toronto strike charges laid by George Brown, publisher of the Globe newspaper and an enemy of Prime Minister Sir John A. Macdonald - Globe was a critic of Macdonald’s government - Macdonald saw an opportunity to embarrass Brown when Brown laid charges against strikers

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Prime Minister Sir John A. Macdonald created Canadian version of Trades Union Act which was passed by Canadian Parliament - Macdonald’s motivation was to punish Brown -

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Adoption of Trade Union Act meant that monopoly laws did not apply, and charges against strikers were dropped Desired reforms to legislated working day were not achieved

The Nine-Hour Movement led to the formation of the first Canadian federations of trade unions − The Canadian Labour Union (1873) − The Trades and Labour Congress (TLC) formed in 1883

Early Canadian Unionism: the 1800s The Knights of Labor • First international industrial union to enter Canada (1881) - Several American unions at this time promoting idea that all workers, regardless of occupation or employer, should belong to a union - Started with one small local in Ontario and eventually had 400 Canadian “local assemblies” and over a million members worldwide •

Organized workers in occupations that Canadian unions considered too challenging - E.g. railway work, mining and other resource industries - Succeeded in gaining access to “company towns” controlled by employers

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Organized women and minority workers - Many existing unions intentionally or otherwise did not attempt to organize these workers

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Denounced by a papal letter in Quebec; the letter was rescinded in 1887 - Letter from Vatican (requested by Quebec elite) said that belonging to Knights was a “grievous sin” because membership allegedly required “unswerved obedience to occult chiefs”

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The TLC -

Roman Catholics who were members of the Knights were banned from taking communion and had to declare to parish priest that they had left the Knights in order to be readmitted Letter caused controversy because of perceived interference with union organizing and membership

Was formed in 1883 Only about 2 percent of Canadian workforce was unionized at this point Lobbied for reforms to labour legislation that would benefit all workers Remained a national force in the Canadian labour movement for the next 70 years

The Industrial Age: the Early 1900s • Work in Canada continued to evolve from rural-based, individually controlled work to urban, factory-based •

U.S. ownership of Canadian industries exacerbated the effects of separation between capital and labour - Foreign investment in industries like nickel mining and pulp and paper processing - Perception that American owners were more concerned with maximizing profits to flow to U.S. rather than with the conditions of Canadian workers or communities where industries were located

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U.S. union organizers came to Canada to recruit members - Some concern about American unions organizing Canadian workers - However, most felt that increasing unionization rates in Canada was more important than in which country the organizing union was located - By 1900 American Federation of Labour (AFL) had 10,000 members in its Canadian locals

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Federal Conciliation Act (1900) created federal department of labour; gave it power to appoint third-party interveners or commissions of inquiry - This power was intended to provide assistance in resolving labour disputes

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1902 – The TLC elected a craft union member as its president, expelled Knights of Labor and national unions - Reinforced craft model as dominant form of unionism in Canada - TLC delegates voted to forbid any national Canadian union from joining if an international union represented workers in same occupation or with the same employer - Also voted to accept members from only one centralized labour federation in any given region of Canada - Knights of Labor and national unions were expelled for not meeting these qualifications

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An active economy created high demand for workers, allowing them to press for better wages and working conditions - Workers perceived unionization as necessary to make sure wages matched cost of living - Dollar amounts of wages increased, but real wages (purchasing power) stayed steady, or even declined - Immigrants coming to Canada seeking a better life wanted a steady income (although some were brought in by employers as cheap labour)

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Railways were expanding rapidly and became a target for organizers - This led to several major railway strikes - Increasing amounts of goods and passengers caused increased revenues and employment - Strikes were for union recognition or to gain wage increases - Government heavily subsidized railway industry, and railway workers felt that subsidies should support wage increases as well as service improvements

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American unions representing railway workers in some cases sided with owners - This alignment was an indication that the continental movement might have negative implications for Canadian workers - American unions insisted that Canadian workers accept less than desirable contract terms

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Railway strikes led to passage of Industrial Disputes Investigation Act (1907)

- The act required that industrial disputes under federal jurisdiction be submitted to a neutral third party - Third party would make recommendations or create binding solution to the dispute if the parties agreed to this in advance - The act introduced principles that are still present in many current Canadian labour laws

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E.g., prohibition of strikes/lockouts while collective agreement is in effect, required third party intervention before legal strike/lock out could occur

The Industrial Age: the Early 1900s • In Atlantic Canada, unions had been more active in organizing less-skilled and non-craft workers than in central Canada •

Atlantic Canada saw 411 strikes between 1901 and 1914 -

most of them by coal miners, represented by the Provincial Workmen’s Association

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140 of those strikes were by associations of unskilled labourers - Indication that organizing and collective action not restricted to trades and more broadly based in Atlantic Canada than in rest of country

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Economic growth lasted until about 1914 - At this time U.S.-based unions made up about 80 percent of total Canadian union membership

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U.S. domination of Canadian union movement was partly due to the Industrial Workers of the World (IWW), the “Wobblies” - Organized extensively in Western Canada

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IWW was similar to Knights of Labor in philosophy and strategy, but had a more socialist orientation, advocating general strikes as a means of creating a new, egalitarian society

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The First World War The advent of the war made unionization more attractive to Canadian workers • Increased production to supply the war effort put pressure on workers to produce more for the same pay - Workers resented being asked to do more without corresponding pay increase • Continuing mechanization of production further reduced the market value of skilled craftspeople - More and more tasks in production performed by machines •

The federal government expanded the jurisdiction of the Industrial Disputes Investigation Act to include munitions industries - This change limited the ability of workers in those industries to strike

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Many workers felt existing unions were not adequately addressing workers’ concerns. which drove some to more radical unions, e.g. U.S.-based One Big Union (OBU) - Many unions did not formally oppose conscription (forced enrollment in military) - This lack of opposition upset many because those opposed to war were being forced to fight, and workers, rather than the businesspeople profiting from war, were being conscripted - TLC convention rejected motions opposing conscription, which caused dissent among membership - By 1919 OBU had nearly 30,000 members in British Columbia

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Workers felt that government was not addressing their concerns

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Controversy over conscription (forced enrolment in military) o Brought in to meet Canadian government’s commitment to Britain to supply troops for war effort o Many Canadians upset that individuals opposed to war were being forced to fight

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o Also objection to conscription structured so that workers, rather than businesspeople profiting from war, were being sent into battle • Death of Albert “Ginger” Goodwin - B.C. labour organizer, was shot and killed by a Dominion Police officer - his death led to a one-day general strike in Vancouver - Suspicion that officer was under special military orders to kill Goodwin; not supported by physical evidence

The First World War Era The Winnipeg General Strike • was the first extended, large-scale general strike involving workers from many different occupations and unions •

This strike began when 30,000 - 35,000 unionized and non-unionized workers walked off their jobs

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A committee representing employers and all three levels of government attempted to force strikers back to work - Sympathy strikes in many Canadian cities

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Winnipeg mayor fired the entire city police force; police were replaced with volunteer "special constables" - “Special constables” resented because their loyalties clearly lay with the government

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The First World War Era (cont’d) • Parliament passed emergency amendment to the Immigration Act allowing for immediate deportation of immigrants; also broadened the Criminal Code allowing police to arrest on basis of suspicion, rather than evidence; burden of proof was placed on the accused •

Eight strike leaders were arrested and charged

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Royal Northwest Mounted Police broke up strikers' protest march on June 21; two people were killed and 30 seriously injured

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Strike ended June 25; strike leaders realized their objectives couldn't be accomplished due to opposition from government, business, and employers - Metal and building trades workers achieved limited bargaining rights - However, divisions and resentments persisted after strikers returned to work

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However, it was a turning point in the Canadian labour movement - Unions were not powerful enough to resist the power of state and capitalist system - Unions also disadvantaged by dominance of international craft unions, who were willing to compromise members’ demands to maintain own control over groups of workers and close relationship with employers

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OBU’s power began to wane as infighting rose and many members found themselves unable to pay dues - Members supported OBU’s principles but were unable to provide financial commitment - Infighting among regions and occupations distracted organization from addressing financial problems - Departure of lumber industry workers reduced total OBU membership by 25% (lumber workers intended to establish own union but were not totally successful) - OBU participated in unsuccessful 1919 Crowsnest Pass miners’ strike, which further damaged its reputation

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The First World War Era • In Quebec, at the end of the decade, unions gained strength because of the influence of the Catholic Church - Church saw involvement with unionism as one way to retain influence over “labouring poor” - Organizing by Quebec-based unions was also seen as a means of resisting influence of international unions, who were not seen as sensitive to Quebec issues of independence and autonomy •

In 1921, so-called Catholic unions formed the Confédération des travailleurs catholiques du Canada (CTCC) − The CTCC became increasingly militant toward the “practised ethnocentrism” of American-owned firms − CTCC’s formal links with Catholic church gradually dissipated

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The CTCC was involved in several high-profile strikes - Most famous was the 1949 Asbestos strike, which was seen as a victory against U.S. firms and the Duplessis government - Achievement of most of workers’ demands as result of this strike

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In 1961, it became the Confédération des syndicats nationaux (CSN) or, in English, the Confederation of National Trade Unions (CNTU) - CNTU still exists today

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After the War Canadian unions faced many difficulties after the First World War, including: • Widespread unemployment and wage cuts - Difficult to promote unionism when most workers were just grateful to have a job at any rate of pay •

Disunity within the union movement - Fighting between Canadian and international unions, craft and industrial unions, and unions in different regions - Disunity made unionization even less attractive

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A poor agricultural market, the U.S. stock market crash (1929) and the subsequent Great Depression

In contrast, some positive developments occurred: • Skilled workers were still needed and were able to maintain unity - Could not form powerful unions because of small numbers, but at least were able to maintain unions • “Industrial councils” were formed which included less-skilled workers - Councils were not formal unions but supported demands made to employers •

Communities of ethnic immigrants within occupations created networks for support and information − E.g., Ukrainians in mining, Jews in clothing/fabric industries

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After the War During the Depression, unemployed workers banded together •

Groups of unemployed lobbied for improved “relief payments” and demanded better conditions in government-run “relief camps”

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Relief payments similar to modern-day employment insurance

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Relief camps mostly filled with young single men forced to perform manual labour for minimal wage and to live in primitive conditions

Two major events demonstrated the extent of resistance to the relief camps • The “On to Ottawa Trek” (1935), which ended in a violent clash with RCMP in Regina - Trek started in Vancouver to mobilize opposition to relief camps and was intended to end in protest at Parliament Buildings; grew in numbers as it moved across the country but was forced to halt after Regina conflict • “Bloody Sunday,” the Vancouver post office riots (1938) - Protestors occupied government buildings in attempt to force end to relief camps - RCMP forcibly evicted them - Neither this or On to Ottawa trek achieved goals, but experience gained by participants in planning and generating support was later useful in union organizing campaigns •

The Canadian Communist Party became an attractive political alternative for some disillusioned workers - The Party promoted unionism as a way to transform capitalism - However, the party was distrusted by many Canadians, particularly those who had immigrated to escape communist rule - The Party became active in several major organizing efforts across Canada

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In 1927, the Communist Party launched the All-Canadian Congress of Labour

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This was the first major alternative to the TLC as a national federation for Canadian unions Membership was primarily industrial unions

After the War Snider vs. Toronto Electrical Commission • This 1925 ruling in this case by the British Privy Council settled the question of federal and provincial jurisdiction over labour relations •

Federal government’s jurisdiction over labour relations extended only to federally regulated industries - All other industries fell under provincial regulation

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Ruling hampered development of Canadian unions - Not all provinces developed their own labour laws at the same time - Organizing was more difficult under varying laws in each jurisdiction - Ruling was welcomed because it solved issue of jurisdiction - However, it also created need for federal law as well as individual law in each province, and the possibility that those laws could differ from each other

After the War The Wagner Act (1935) • U.S. legislation introduced by President Franklin Roosevelt guaranteed three basic rights to U.S. union members

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Roosevelt wanted to counteract effects of Depression and did so by introducing this legislation Roosevelt believed that this legislation would increase productivity by reducing strikes and other conflicts caused by employers’ refusal to recognize unions The right to organize The right to collective bargaining The right to strike without employer harassment

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Employers were forced to recognize a union that had the support of the majority of workers - Recognition included being compelled to bargain with union, and not refusing to meet with it or ignore its demands

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Several provinces adopted similar legislation

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This act was the model on which many Canadian labour codes were based and contains principles that are still present in Canadian labour laws - act was criticized for being too biased in favour of unions and workers - But act was also praised for potentially reducing the incidence of violent employer-worker conflict

After the War The Congress of Industrial Organizations (CIO) • Founded in the U.S. in 1935 to represent workers in mass-production industries and to organize unorganized workers - Mass production becoming increasingly important in US economy •

Clashed with the American Federation of Labor (AFL) - AFL already had members in some industries targeted for organizing by CIO - AFL did not want its membership base weakened by having members taken away by CIO

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AFL instructed the TLC to expel Canadian unions linked to CIO affiliates, which it did reluctantly

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TLC was reluctant because it did not want to lose members After following AFL instructions, TLC lost about 22,000 members and a considerable amount of power

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The CIO opened a Canadian office in 1937 - organized steelworkers, autoworkers, and other production workers - Newly organized Canadian affiliation of International Woodworkers of America joined CIO

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The Co-operative Commonwealth Federation (CCF) elected its first members of Parliament - CCF was a forerunner of the New Democratic Party - CCF/NDP is political party most closely identified with organized labour

The Second World War • Stimulated the economy, dramatically increasing employment - Increased production needed to support war effort • The jurisdiction of the Industrial Disputes Investigation Act was expanded in 1939 - The government feared radicals and militants would disrupt production - Government feared influence of Communists involved in the union movement and workers radicalized by experience in relief camps - The act now required strike votes for a strike to be legal - Government was much more interventionist in regulating than it had been during First World War •

The government also introduced wage and price controls - Wage and price controls intended to counteract stricter regulations on unionized workplaces - Intended to quell fears of “profiteering” from wartime shortages of goods

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Unionization rates increased significantly with the war - the divisions between craft and industrial unions became more formal at the national levels of the union movement

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The Second World War The All-Canadian Congress of Labour and the CIO joined to form the Canadian Congress of Labour (CCL) This gave Canada two national labour federations: • The CCL - Industrial-union based; affiliated with the CIO in the U.S. • The TLC − Craft-union based; affiliated with the AFL − CCL less rigidly linked with CIO than TLC was with AFL, e.g., CIO did not actively try to direct Canadian affiliates’ business •

Strike activity increased during the first few years of the war - by 1943, one in three union members was on strike - Strike levels attributed to expertise and resources available to Canadian unions through international affiliations - International unions provided guidance based on experience elsewhere - Union members also gained experience in organizing and politics in pre-war years

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The federal government amended its labour legislation in the early 1940s - This occurred following a long and bitter strike by northern Ontario gold miners in 1941-42 - Legislation recognized increased skills and resources of union members - Government was also encouraged to be more sensitive to union concerns when more CCF candidates were elected provincially and federally

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The Second World War • In 1944, the federal government passed P.C. 1003 - This legislation was modelled on the US Wagner Act. - P.C. designation indicated that the act was passed by Privy Council during wartime–similar in effect to law passed by Parliament during peacetime •

Features of P.C. 1003: - compulsory collective bargaining - the right of “employee representatives” to be certified as bargaining agents if they could demonstrate sufficient support - Organizing was facilitated because of legal recognition of employee and union rights

•

Similar acts were passed by Quebec and B.C.

After the Second World War • The war was followed by fears that the post-First World War recession would be repeated - Mackenzie King’s federal government tried to offset this possibility by giving benefits to returning veterans - Return of soldiers and reduction of war industry led to high unemployment in large cities

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Benefits included gratuities, tax credits, and subsidies for retraining and education Intent of benefits was to reduce unemployment by keeping returning veterans out of the labour market

“Rand Formula” was developed in 1945 The first major post-war strike occurred in 1945, at the Windsor, Ont. Ford plant - Main issue in strike was union demand for “closed shop” - Closed shop would mean that union membership was mandatory condition of employment - Issue went to arbitration -

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Justice Ivan Rand decided union dues would be automatically deducted from every worker’s paycheque, but that individuals would be allowed to opt out of the union - Reasoning was that union’s activities represented all workers so all workers should financially support union activities even if they chose not to belong to the union

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The Rand Formula was being used by 90 percent of Canadian unions by 1950

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Post-war price increases led unionized workers to demand matching wage increases - Some unions were more concerned with issues such as wage rates keeping up with inflation

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Many employers, assuming P.C. 1003 had been a temporary measure, did not respond to union demands - Assumed that they were not compelled to recognize union or to engage in collective bargaining

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The result was a series of large, extended strikes that began in 1946 and continued for the next four years - Lumber industry in BC, shipping industry in Great Lakes, textile industry in Quebec

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By 1950, nearly every province had a labour code - The federal government enshrined the principles of P.C. 1003 in the Industrial Disputes Investigation Act (1948) - This was the model for most of the provincial labour codes

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After the Second World War The Asbestos strike (1949) • Notable for the level of conflict it generated and because of its effect on the Quebec union movement •

An illegal strike, supported by local Catholic churches and the Archbishop of Montreal - Strike caused by breakdown of negotiations between asbestos workers’ union and management of the American-owned plant - Archbishop had worked in northern Ontario and was familiar with conditions in isolated towns controlled by foreign-owned firms - Archbishop ordered that collections of money to support the strikers be taken in every Catholic church in Quebec

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Quebec Premier Maurice Duplessis sent armed police to Asbestos; strikers responded by beating company officials and dynamiting company property.

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Strikers, incensed that the company had hired replacement workers, attacked the mines and the police; over 200 were arrested

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A settlement was negotiated - Initial agreement was that union would be re-certified and striking workers would receive small raise and be reinstated (except for those convicted of violent activity during the strike)

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Other issues sent to arbitration However, approximately 100 workers not reinstated, and arbitration did not produce many gains for union

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Served notice to the world that the Catholic unions were no less militant than their secular counterparts

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Marked the end of the formal relationship between the Catholic Church and the union movement in Quebec - Under pressure from conservatives in Quebec, Church sent Archbishop to a new posting in British Columbia - In early 1950, “pastoral letter” formally removed Church from involvement in Quebec unions

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The 1950s and 1960s • Period of growth and development for unions - Basic issues resolved like ability of workers to organize and to bargain collectively with employers - Post-war effects on economy had dissipated • The TLC and CCL merged in 1956 to create the Canadian Labour Congress (CLC) - Inter-union disputes were reduced by this merger - The CLC affiliated with the Quebec Federation of Labour (QFL) - CLC relationship with QFL is slightly different than relationship with other provincial federations [described in more detail in Chapter 4] •

The predominantly international unions became increasingly bureaucratized and centralized - Most large unions had centralized office and paid staff - Concerns that this structure was not appropriate to accommodate regional differences - Centralization thought to make union bureaucrats less sensitive to regional issues - Also concerns that those at top of hierarchy were more focused on formalizing and strengthening own power rather than addressing needs of membership

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Bitter disputes during this time: - Murdochville, Quebec (1957) - Violent mining strike ended with the union conceding defeat - United Steelworkers were negotiating with copper mining company - Striker killed in dynamite explosion and strike breakers rolled rocks onto demonstrators' cars - Strike lasted nearly seven months and involved 1100 workers - Company sued union for damages in case that lasted nearly 13 years - Union ended up paying nearly $2 million in damages but was also later successful in recertifying mine

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Newfoundland (1958-1959): International Woodworkers of America (IWA) - IWA obtained certification for forestry workers in Newfoundland - Employer rejected conciliator's suggestions for first collective agreement, and union went on strike - Employer brought in replacement workers and many strikers and union leaders arrested - Smallwood opposed to "foreign union" but some historians think he was more concerned about having a strong union to oppose employers rather than traditionally weak forest unions - Smallwood formed a new union to replace IWA and pushed bill through Newfoundland legislature allowing govt. to dissolve unions whose leaders were convicted of "any heinous crime" - IWA and Teamsters decertified under this bill, even though Teamsters were not involved in forestry strike - Death of policeman during fight involving union members turned public opinion against IWA - Smallwood's union taken over by carpenters' union and became CLC member - Eventually carpenters' union was given IWA's original certification, and controversial bill was rescinded

•

Early 1960s saw the beginning of an extended growth period in the labour movement, due mostly to extensive organizing in the public sector - Public sector work previously considered “service”, and intrinsic satisfaction of contributing to society counteracted lower wages than private sector - Public sector workers expected to make less than they could in private sector

•

Private-sector wages and conditions were becoming increasingly superior to public sector - Service orientation and intrinsic satisfaction not sufficient to overcome increasing public sector-private sector wage gap - In most jurisdictions public servants were denied collective bargaining rights - However, when some jurisdictions (e.g., Saskatchewan and Quebec) granted bargaining rights to public servants, pressure increased for similar action in other jurisdictions

• 1965 – public sector unionization became a priority for the federal government - This attention was due to a national postal strike and the election of a Liberal minority government that was dependent on the New Democratic Party for support - Minority government would benefit in several ways by satisfying labour’s demands •

Ottawa passed the Public Service Staff Relations Act in 1965

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This act gave federal public servants the right to arbitration or strike action

By 1975, every province and territory had some form of labour relations legislation governing public service employees - Most of these were based on the federal act

The 1950s and 1960s • During the same period, para-public sector workers also organized on a large scale - This sector included municipal and provincial government workers, and workers in organizations funded by but not controlled by governments - These workers were dissatisfied because of threatened funding cutbacks that could lead to job losses - Also, dissatisfaction that government structures did not respect or value employee skills and judgement, especially for professionals - Disputes over pay equity with private sector led to several large strikes including some in Quebec involving as many as 200,000 workers • Some joined existing public-sector unions, but others joined the Canadian Union of Public Employees (CUPE) - CUPE was a newer union that organized municipal and regional government workers - Some professionals who already belonged to professional associations became organized by applying to have professional association recognized as a union •

Also during this period, changing technology affected workplaces - Changes reduced or eliminated employment in entire occupations - As early as 1957 railway workers had struck over replacement of coalburning engines with diesel-powered locomotives - Toronto newspaper workers struck over changes in technology that eliminated jobs such as typesetting

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The 1970s and 1980s • The early 1970s saw disruption in the Canadian economy - Unemployment and inflation both rose - North America was challenged by new economic powers in other parts of the world •

Unions were blamed for inflation and lower productivity - Unions blamed for increasing wages and thus causing price inflation - Workplace rules in collective agreements blamed for causing inflexibility for employers - Demands for better wages and working conditions seen as “greed and selfishness”

•

In October 1975, the federal government implemented a three-year program of wage and price controls - Under this legislation, collective agreements had to be approved by the AntiInflation Board - Unions opposed initial form of program (wage controls only) because they believed it was unfair to restrict wages but not prices - Eventual program set predetermined limits for wage increases for numerous kinds of workers (e.g., public sector workers, self-employed professionals, employees of large public companies) - Anti-Inflation Board determined whether collective agreements adhered to guidelines and could revise if not - Board also expected to regulate price increases but stipulations for doing this were much more flexible

• Strike activity rose significantly after controls were imposed − Over one million workers took part in a one-day national strike on October 15, 1976 - Strike participation was uneven across regions, but overall participation high enough to set new records for time lost due to industrial conflict - Unions pulled representatives from all federal consultative committees •

When the program ended in 1978, its lasting effects were unclear

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Prices increased sharply after program ended However, controlling domestic prices is difficult in economy like Canada’s dominated by international trade

The 1970s and 1980s Early 1980s • Interest rates were increased to fight inflation • This caused the worst unemployment since the 1930s • Social programs were restricted - Higher unemployment but fewer individuals eligible for social assistance - Funding to social assistance programs also reduced in many areas Federal and provincial governments reduced the bargaining power of public sector unions.

• Stricter penalties for public sector strikes •

Back-to-work legislation used more extensively to end strikes

The ‘70s and ‘80s saw numerous high-profile strikes in both the public and private sector • 1972 Quebec public sector strike - Several union leaders jailed for defying back-to-work order • 1978 national postal strike - Union leaders arrested after refusing to honour federal law forcing a return to work • 1978 eight-and-a-half-month-long strike by Ontario steelworkers - This was followed by another lengthy strike in 1981 In 1982, the federal government suspended public servants’ bargaining rights for two years

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Cutbacks in public sector funding in many jurisdictions

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Also contracting out of functions formerly performed by public sector workers

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Changes in legislation made organizing and bargaining more difficult than in past

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The federal Charter of Rights and Freedoms (1982) provided new guidelines for labour relations - As discussed in Chapter 1, several cases tested applicability of Charter principles to IR issues such as choice to belong to a union or right to picket

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The election of a federal Conservative government in 1984 created a hostile atmosphere for unions - Same period saw emergence of major business alliances such as the Business Council on National Issues

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Several major private-sector strikes during the 1980s - E.g., lengthy and occasionally violent strike at Gainer’s meatpacking plant in Edmonton

The 1970s and 1980s Labour movement also saw internal dissent: • The Confederation of Canadian Unions (CCU) presented an alternative to the CLC - CCU intended as a national federation for Canadian-based unions, - CCU members felt that CLC was too dominated by American-controlled international unions that did not serve Canadian interests - These feelings intensified when CLC refused to support construction unions in Quebec dispute between local and international unions • Construction unions broke away from the CLC to form the Canadian Federation of Labour (1982-1997) • Canadian locals of the United Auto Workers split from U.S. parent union to form the Canadian Auto Workers

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This happened in 1985 and severely challenged American dominance of CLC CAW is now one of largest private sector unions in Canada

The 1970s and 1980s • The trend that developed toward Canadian control of Canadian unions has continued to the present day •

The demise of the CFL and the CCU has left the CLC and the QFL and CNTU as the major labour federations in Canada

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Into the 21st Century The advent of liberalized international trade was the major event of the 1990s •

This includes the North American Free Trade Agreement (NAFTA) of 1992 and Canada’s participation in worldwide tariff reductions - Tariff reductions include the 1994 General Agreement on Tariffs and Trade, and in World Trade Organization - Side agreement to NAFTA protects basic standards in each country e.g., minimum wages and right to bargain collectively - However, NAFTA does not provide for creation of common social and labour standards among participating countries, as does e.g., European Union agreement

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Some employers have used NAFTA to move formerly unionized jobs to regions with lower labour costs and non-unionized workers - These movements caused job losses in Canada - They have also caused pressure on unions to agree to lower wage rates so products can remain cost-competitive - Canadian unions have been more reluctant to agree to these changes than have American unions

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Unionization rates in Canada did not drop significantly in the 1990s, although there has been a slow gradual decline since the 1970s - Union membership numbers reduced in the early 2000s as a result of job losses in Industries with normally high rates of unionization (manufacturing, forestry and fishing) - Unionization campaigns attempting to target new groups e.g., women, minorities, service industry workers - In Quebec unions have tried strategies like signing “social contracts” guaranteeing labour peace in exchange for employment security and a formal role in administration of collective agreements

• The New Democratic Party, historically labour’s best friend in politics, declined in influence during the ‘90s

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It remains to be seen what effect this decline will have on industrial relations in Canada NDP does not have the strong formal links with labour that exist in other countries e.g., Labour party in Britain formally aligned with Trades Union Congress (British equivalent of CLC) However, NDP still considered political party most favourable to labour’s concerns Although NDP has never formed a federal government, in 1960s and 1970s many NDP members of Parliament were elected, and NDP also formed several provincial governments In the 2011 federal election, the NDP gained the second largest number of seats in Parliament, which gave it the status of Official Opposition.

Even with an increased presence at the federal level, NDP’s ability to be a political advocate for labour issues across Canada is still limited

Into the 21st Century Several large-scale labour disputes in last few years NHL lockout in 2004-05 - Lasted nearly 300 days - Resulted in cancellation of the entire season NHL lockout in 2012-13 - Which resulted in more than 40% of the scheduled games for that season being cancelled Post-secondary strikes at several institutions: - York University 2008-09 - Universite du Quebec a Montreal 2009 - University of New Brunswick in 2014 Civic workers - Vancouver 2007, Toronto and Windsor in 2009 Other public sector workers - Alberta teachers 2002 - BC paramedics 2009 Instructor’s Manual

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Canada Post strikes in 2011 Air Canada strike in 2011

Strikes at large private sector employers - Potash Corporation of Saskatchewan 2008 - Stora Enso 2006 - Vale Inco 2009

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In 2004, two of Canada’s largest unions, the United Steelworkers of America and the International Wood and Allied Workers of America, merged in 2004.

This union, after several other mergers, is now known as the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.

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In 2013, the National Automobile, Aerospace, Transportation and General Workers Union of Canada (the former Canadian Auto Workers union) merged with the Communications, Energy and Paperworkers Union

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Unifor now one of Canada’s largest private sector unions.

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Summary The future can be viewed negatively or positively for unions • Negative perspective - Internationalization, the slow decline in unionization rates, and the decline of unions’ political influence could further erode unions' power •

Positive perspective - Events have indicated that Canadian unions are exploring new ways to maintain their presence - The relative strength of Canadian unions compared to those in the U.S. and the history of adaptability of the Canadian system suggest that unions will continue to survive

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1. The dominance of the craft union model has been attributed to two factors. One is the large size of Canada, which posed problems in transportation and communication between different parts of the country. Thus, it was more practical for unions to organize on a local level. The other is the need to protect wages for workers in skilled trades. If unions were able to organize workers in a single trade, the union would be able to control the supply of workers with that skill and thus have more bargaining power with employers. This factor was particularly important in regions where unskilled immigrant labourers could not easily be used to replace skilled workers.

2. The dominance of the craft union model initially inhibited the growth of unions in Canada, because the model did not encourage union organizing among groups of workers other than skilled tradespeople. This meant that early union organizing efforts in Canada did not, for example, address less skilled workers or workers in non-trade occupations. In addition, several early Canadian unions used the craft union model to deliberately exclude workers who were seen as threats to the union members’ living standards.

3. Craft unions only represent workers practicing a single skill or trade. Industrial unions focus on “strength in numbers” and recruiting as many members as possible, regardless of occupation.

4. The advantages were that international unions were usually larger and more experienced than Canadian-based unions. This meant, for example, that Canadian locals of international unions would have more resources to draw upon, and more expertise available for activities such as collective bargaining. The larger size of international unions also gave Canadian locals more power in bargaining than they would have had as part of a smaller union.

The disadvantages were that in most international unions Canadians only made up a small part of the total union membership. This made it difficult for Canadians to get their issues treated as a priority by the international unions. Also, many international unions expected Canadian locals to follow the same direction as non-Canadian locals, without accounting for social, cultural or economic differences. International unions were also perceived as acting in ways to preserve their relationship with employers rather than serving the needs of the Canadian membership, e.g., pressuring Canadian locals to accept unsatisfactory contract terms in order to end a strike.

5. The First World War followed a short economic depression and had a dramatic effect on union membership levels due to increased production to support the war effort, the continued mechanization of production, and changes in federal legislation forcing workers in the munitions industries to undergo conciliation before they could strike. These three factors made it difficult for unions to adequately represent their

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members or bargain productively with employers. Also, many current union members felt that existing unions were not sufficiently representing their concerns, as in the Trades and Labour Congress’ refusal to condemn conscription. Other events such as the murder of labour organizer “Ginger” Goodwin indicated that there was a large gap between workers and employers in Canadian society. The Winnipeg General Strike, just after the war ended, also illustrated the frustration of workers with the economic system.

The start of the Second World War stimulated the Canadian economy as did the start of the First World War, but the government was much more interventionist in regulating the economy than it was in the First World War. Federal labour legislation was expanded to cover all war-related industries, and required a strike vote for a strike to be legal. However, wage and price controls were also introduced to reduce the opportunity for “profiteering” from wartime shortages of goods. Unionization increased significantly after the start of the Second World War, unlike the start of the First World War, and strike activity also increased despite the stricter legislation.

Another significant event during the Second World War was the passage of P.C. 1003, the precursor to the current Canada Labour Code.

6. The Wagner Act, passed in the United States during the presidency of Franklin Roosevelt, guaranteed three basic rights to workers: the right to organize, the right to strike, and the right to collective bargaining. The act also compelled employers to recognize a union as the employees’ representative if a majority of employees voted in support of the union. Once a union was recognized, the employer was compelled to bargain collectively with it and not refuse to meet or to ignore its demands. P.C. 1003, which was an order-in-council passed in Canada in 1944, was modeled on the Wagner Act and contained the same principles.

7. The major difference has been the involvement of the Catholic Church. Initially the Church was involved because church leaders saw promotion of unionization as one way to strengthen the church’s relationship with the “labouring poor”. Several early Quebec unions and the first major Quebec labour federation were formed to represent Catholic workers. However, the Church’s leadership sided with employers and the Quebec government in several bitter labour disputes, which eventually led to the dissolution of the formal links between the Church and the Quebec labour movement.

8. Prior to the 1960s there was a relatively low level of unionization in the Canadian public and para-public sectors, because public service was accepted as a form of service to the community or the country. Public servants accepted that as service providers they would be paid less than they would in the private sector. However, by the early 1960s there were increasingly larger wage gaps between the public and private sectors. Also, some jurisdictions granted bargaining rights to public and parapublic workers, which led to pressure in other jurisdictions for similar rights. The federal government’s desire to maintain the support of organized labour led it to

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pass legislation giving public servants the right to arbitration or strikes to settle bargaining disputes.

In the para-public sector, increased unionization was driven by the threat of funding cutbacks which could result in job losses, and frustration that para-public organizational structures did not respect or value the skills and expertise of workers, particularly professionals. Some para-public workers, rather than join public sector unions, remained in their professional associations and had those associations certified as unions.

9. The major effect has been in job loss, when liberalized trade arrangements have permitted companies with Canadian operations to move those operations elsewhere where labour costs are lower. The North American Free Trade Agreement has a side agreement allowing each member country to preserve basic minimum rights such as minimum wage and the right to collective bargaining. However, unlike other agreements such as the European Union agreement, there is no provision for the creation of common social and labour standards. This has led to pressure on Canadian unions to agree to lower wages so that products can remain pricecompetitive.

10. [The answer to this will depend on the student’s choice, but the student should be able to outline the basic points associated with the perspective he or she chooses.]

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TEACHING NOTES FOR CHAPTER 3 EXERCISES 1. This exercise asks students to choose a union that they are familiar with or that they can research, and to describe the history of the union based on the information they gather.

This information may be available from a variety of sources: - public or post-secondary library - sites on the Internet - provincial, municipal or regional archives or museums - other government resources (e.g. histories developed in association with designated sites or locations of interest) - union, labour federation, or labour council archives - newspaper archives - any previously published history of the union An excellent guide to researching labour history is included in Mark Leier’s Rebel Life: The Life and Times of Robert Gosden, Revolutionary, Mystic, Labour Spy (Vancouver: New Star Books, 1999: pgs. 139-169). Leier describes his own experience in assembling the research his book is based on, and offers some suggestions to others wishing to conduct their own research.

The exercise provides a list of suggested questions that students can address in developing their history. Instructors may want to edit the list or add their own questions.

2. This exercise asks students to describe the history of industrial relations in their province or geographic area.

The information for this exercise can be drawn from the same sources as described in the first exercise, although the scope of research may be a little broader because the focus will not be on a single union. As in the first exercise, a list of suggested questions is provided, which instructors can modify as needed.

Instructors can modify the exercise itself by specifying the geographic region or area to be researched, or restricting the history to a specific period of time.

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 3 TOPICS The National Library of Canada’s Guide to Canadian Labour History Resources.

Contains links to some of the major reference works and collections in the National Library of Canada as well as major resources available in the National Archives of Canada and in the library of Human Resources Development Canada. http://epe.lac-bac.gc.ca/100/200/301/lac-bac/cdn_labour_history-ef/www.lacbac.gc.ca/2/26/index-e.html This site, maintained by the Canadian Museum of Civilization, looks at the History of Canadian labour and how it changed Canada. http://www.historymuseum.ca/cmc/exhibitions/hist/labour/lab01e.shtml The Canadian Labour History Bibliography, compiled by the Queen Elizabeth II Library at Memorial University, St. John’s, Newfoundland; updated regularly. http://www.library.mun.ca/qeii/labour/ The website for the Canadian labour history journal Labour/Le Travail, published by the Canadian Committee on Labour History. http://www.cclh.ca/labour-le-travail A CBC Radio program about the On to Ottawa Trek. http://www.cbc.ca/history/EPISCONTENTSE1EP13CH3PA4LE.html A page of information about Ginger Goodwin and links to other resources, maintained by the B.C. Carpenters Union. http://www.carpentersunionbc.com/Pages/gingergoodwin.html A collection of CBC radio and television broadcasts on the history of unionization in the Canadian garment industry. http://www.cbc.ca/archives/categories/economy-business/labour-unions/sewing-seedsclothing-workers-fight-for-better-conditions/first-strike-in-4-decades.html The official website of the Industrial Workers of the World. http://iww.org/ Links to labour history material and memorabilia from around the world. http://www.xpdnc.com/links/history.html

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CHAPTER 4 The Structure of Canadian Unions LECTURE NOTES

Chapter 4 Objectives At the end of this chapter, you should be able to: • Describe the formation and operation of a local union • Understand the relationship between a local union a regional, national, or international union • Outline the function of labour councils • Describe how a labour federation is structured • Identify the role played by regional, national, and international labour organizations

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The Structure of Canadian Unions • The labour movement in Canada consists of a large and complex network of direct and indirect relationships •

There are several levels of union structure that roughly parallel the three levels of Canadian government: − The Canadian Labour Congress (CLC) is the largest national labour federation; there are also several smaller, Quebec-based national labour federations − Provincial or territorial labour federations act as the coordinating bodies for the labour movement in each province or territory − Labour councils are the coordinating body for joint union activity at the municipal or regional level − Local unions represent workers at the workplace level

The Local Union • Though the smallest unit in the union structure, the local union is considered the cornerstone of union structure •

It is the first level of the structure of the Canadian labour movement; - Usually referred to as a “local” - This name comes from the fact that most local unions in Canada are smaller units of a larger union

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A local is created when workers at one or more work sites come together - Workers can form independent union or join existing one; usually choose to join existing one - Established union usually has more expertise and resources than an independent one, and can offer help to inexperienced union members - However, an independent union may be able to better represent workers in specific circumstances (e.g., McDonald’s workers’ union in Montreal, where workers felt their conditions were not identical to those of workers in other eating establishments) •

Local unions can vary considerably in size - They can contain all the workers at a number of different workplaces or all workers who perform the same type of work; a local union can also contain all the workers at a single workplace, regardless of occupation - Which of these structures is used depends on the potential number of union members, the number and proximity of workplaces containing potential union members, and the structure of the relevant employment sector - No such thing as a “typical” local size; locals have been certified with one or a few employees, but this is rare - Larger locals have more bargaining power, and unions are more likely to expend their energy organizing larger, rather than smaller, groups of workers

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The structure of the local union is designed to put the principles of participation and democracy into action - Principles of democracy and collectivism guide union structure - Members make decisions as to which direction the local will take - Many of the most important functions of unions take place at the local level

Structure of the Local Union • The internal structure of Canadian unions is “only lightly regulated” by law - most legislation requires only that unions file their constitutions with the appropriate labour relations board and make regular financial reports to the membership

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Union is generally free to adopt any structure it wishes, within certain limitations as detailed below

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The union is expected to operate in a manner that is free from discrimination and allows democratic participation

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Members elect a union executive to run the local union - Executive positions can be full- or part-time, paid or volunteer - Most executives have a president, a vice-president, a secretary and a treasurer - Depending on the size of the local, there may be other positions on the executive. Sometimes these positions represent certain constituencies, such as a representative from each work site where the local has members - Other executive positions may represent demographic constituencies within the membership such as female or First Nations workers - There may also be positions to represent specific issues such as health and safety or human rights - These sorts of positions are more common in larger locals, having these positions to represent designated interests ensures that issues of concern to particular groups of members or individual work sites are brought to the executive’s attention - Whether executive positions are full-time, part-time, paid or not depends on size and resources of locals - Some locals negotiate collective agreement language giving executives paid time off work to do union business and return to their jobs at the end of their elected terms, with no loss of seniority or benefits - Most union constitutions allow for executive members to be appointed if no one volunteers to run for a position or if circumstances preclude holding an election (e.g., a sudden resignation)

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Shop stewards are the union’s representatives in the workplace - They are union members who investigate individual workers’ complaints - They act as workers’ advocates when dealing with management; stewards attend disciplinary meetings, distribute union literature and welcome new members - Stewards may be elected or may be volunteers

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Larger unions often have a paid staff that includes a business agent - responsible for handling day-to-day union functions and assisting executive members

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Structure of the Local Union • The business agent may serve more than one local - This is common when there are many small locals in the same geographic area •

Business agent usually plays a significant role in contract negotiations and grievance handling - Business agent is usually on the union bargaining team or an advisor to the team - Business agent is usually responsible for presenting grievances to employer and attempting to resolve the grievance

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Business agent often has a lot of responsibility and power - Business agent has permanent job whereas executive members are elected for limited terms - Thus, business agent acquires in-depth knowledge and experience that executive members may not have time to develop - Often, executive members rely on the business agent for advice/direction, rather than the other way around - In some unions the business agent is not hired by local but is appointed by regional, national or international union - In this situation, business agent is often the messenger for the direction the larger union wishes the local to take

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Locals may also employ administrative or secretarial support staff - These individuals will usually belong to a union other than the one they work for

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Local union members pay monthly dues - either as a flat fee or as a percentage of salary or wages - Amount of dues and method of calculation are outlined in union constitution - Funds from dues pay operating costs of local, staff salaries, office rent, equipment maintenance - Some revenue may be directed to special causes e.g. building funds, cash reserves in case of a strike or lockout

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Portion of dues also goes to larger regional, national, or international union, and some of those funds also go to Canadian Labour Congress

Functions of the Local Union The local union carries out three major functions: • Dealing with workplace problems or grievances - Represents workers in day-to-day interactions with employer, which includes representing workers if there are complaints • Collective bargaining - Determines what outcomes members want from bargaining, prioritizes outcomes and plans bargaining strategy, and participates in bargaining with the employer • Political or social activity - E.g., making presentations to government bodies, participating in events to support other unions or organizations, participating in charitable or fundraising activities •

The local union’s membership determines how these functions are carried out, but two factors determine whether the union’s actions reflect the members’ desires: • Influence of the business agent - Business agent may advise or pressure local into making a particular decision, based on his/her experience or expertise - Business agent may be encouraged by larger union to advise or pressure local into taking direction preferred by larger union • Proportion of members who participate in votes or discussions - Participation rates tend to vary - Usually high participation for major events like strike votes, but low participation for routine events like regular meetings

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Researchers disagree on the effects of varying member participation − Some argue that low levels of participation are not a problem because they indicate members are satisfied − Others argue that continuously low participation by members causes excessive amount of work for those who do participate, leading to burnout, stress and frustration

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First perspective argues that unions should only be concerned about low levels of participation for major events like contract ratification votes Second perspective argues that low participation makes it hard for the union executive to determine what membership wants, if members are not expressing views through meetings or votes

Functions of the Local Union (cont’) • Low participation can also invoke the so-called iron law of oligarchy, which states that if the majority does not consistently participate, power becomes concentrated in the hands of an entrenched elite group - In the case of unions, this means that union executive members might end up serving multiple terms because no one else will run for election - The same small group will continue to form the executive and thus acquire much experience and power - This acquisition will make it increasingly difficult for non-executive union members to oppose them - However, union participation can take many different forms - As well as formal participation, there can also be informal participation, such as talking about union issues with other members - Actual participation rates may not be reflected in measures such as the number of candidates running for elected union office - Motivations for participation also vary - Some members may participate because they want a voice in union’s activities or because they feel an obligation to serve the organization that represents them - however, union participation does not seem to be related to an individual’s job satisfaction, but it may reduce the possibility of the individual leaving the organization - Participation may also be driven by perception that the union is not adequately serving its members; in this case, participation may be negative, e.g., complaining about union to co-workers or union executive - Also important to note that union participation varies over time; participation at one point is not a reliable predictor of participation in the future - Strongest influence on continued union participation appears to be individual attitudinal commitment to the union

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An individual is more likely to participate when co-workers or other workplace contacts are active union participants

Canadian union members have varying views of unions’ effectiveness - One survey suggests Canadians are generally satisfied with unions’ performance in business union activities - A significant number felt that unions placed a relatively low level of importance on “integrative” activities - Respondents also thought unions should put more effort into political activities - Business union activities include e.g., bargaining - Integrative activities include e.g., conflict resolution and representing workers to management - Political activities include e.g., informing workers about political issues, advocating for laws helping working people, and fighting for interests and values of working Canadians

Structure of the Local Union • Most local unions belong to a larger regional, national, or international union, known as a parent union - “International” in Canada usually means “based in United States” - “National” = based in Canada - “Regional” = a particular geographic region (e.g., Federation of PostSecondary Educators in British Columbia represents instructors at community colleges and technical institutes in that province) •

Like local unions, parent unions are governed by an elected executive - Representation on executive usually includes representatives from locals, or from geographic areas/regions - These positions can be elected by the entire membership or by the group of members that the position represents

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The main decision-making mechanism for a parent union is the convention or congress, usually held annually

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Each local union is entitled to send delegates to the convention Delegates may be elected by the local members or chosen by the executive In some unions, the number of delegates a local is entitled to send depends on size of local, and larger locals are entitled to larger numbers of delegates In other unions, each local is allocated the same number of delegates regardless of the local’s size

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Decisions and votes are usually taken in general plenary sessions - Small committees or caucuses may make recommendations; a great deal of political activity takes place - Delegates are presented with reports on union’s business (e.g., financial reports) - Motions may also be brought to the delegates to deal with issues such as changing the union constitution or adjusting the amount of member dues Motions may also be brought to the delegates on issues such as expressing support for other organizations There are usually also motions on policy and direction to guide the union in its operations - Committees or caucuses may meet prior to plenary sessions to review motions and make recommendations to the plenary on how motions should be addressed - Individuals or delegations will lobby other individuals or delegations to get support for “their” motions - Sometimes motions may pass or fail not because of the union members’ desired direction, but because the motion’s supporters or opponents are the most persuasive lobbyists

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Parent unions have paid staffs - These are larger and fulfill a wider range of functions than those of local unions - Specially trained staff will assist locals in carrying out functions such as bargaining or organizing new locals - Parent unions might also employ economists, lawyers, and research specialists to gather and analyze information - National or international unions may also employ government lobbyists - Parent unions also have administrative staff to oversee day-to-day operations

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Functions of Parent Unions Parent unions may: • Help in the creation of local unions, often by providing a trained organizer - Organizer will guide potential union members through process of gaining legal recognition for the new local •

Support a local’s ongoing activities, including assisting with workplace issues - E.g., help resolve a conflict with employer by advising what other locals in the same situation have done

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Offer collective bargaining advice - Parent union representatives may observe bargaining sessions and help in formulating strategy - Parent union can tell local union what other workers in same occupation have been able to achieve through bargaining

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Conduct educational programs - E.g., workshops on labour law, conflict resolution techniques - Education is also conducted through newsletters and websites

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Represent members on labour councils, provincial labour federations, or national labour federations - Locals may belong to these organizations directly or through representation by parent union, depending on the local, its affiliations, and the membership policies of the labour council or labour federation

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Parent unions are financed through individual members’ dues - a percentage of dues is usually designated for a strike fund - Strike fund may go directly to local members when a strike or lockout happens, or may be used to supplement local’s own strike fund

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Labour Councils • A labour council is composed of delegates from many different union locals, usually within a region.

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Labour councils are distinct from labour federations, which are provincial or national in scope

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Each local union that is a member of the labour council appoints or elects a delegate − Delegates elect officers to form the labour council executive − Each officer must be a member in good standing of an affiliated union − Officers and delegates must be eligible for membership in the local union and must comply with its constitution and bylaws − This provision is intended to ensure that delegates and officers act in accordance with the wishes of the members they represent, not on their personal beliefs

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Labour councils are financed through dues from local union affiliates - Usually calculated on a per capita basis, e.g., each member union pays a fee based on how many members it has - Most labour councils have limited funds and no full-time staff - Work is carried out by officers and by volunteers from among delegates and member locals

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Affiliation with a labour council is voluntary for local unions, but is encouraged - Canadian Labour Congress requires that local unions affiliated with CLC must also be affiliated with a labour council in their region

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Functions of Labour Councils • Labour councils: - represent workers’ interests to local government - bring together local unions to participate in their community - carry out labour movement policies at the regional level •

Labour council activities may include: - Providing strike support for local unions - Advocating for broader social goals such as child care - Fundraising for charity - Hosting local Canadian Labour Congress education programs for unions and union members

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Recently, labour councils have sought alliances among women, anti-poverty, and seniors’ groups and churches and non-affiliated unions. E.g. New Westminster and District Labour Council in BC was involved in campaign to pass “living wage” policy in City of New Westminster.

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Labour councils are usually also active in provincial or territorial federations of labour; often will distribute information from the federation to local unions

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Provincial Labour Federations • A provincial labour federation is composed of unions from an entire province or territory - Local unions without regional, national or international affiliation may join provincial federation directly - Local unions with regional, national or international affiliation are usually represented in the federation by the parent union Structure of Provincial Labour Federations • Provincial labour federations have a similar structure to regional, national and international unions • Federation members elect executive officers, usually at an annual or biannual convention - convention is attended by delegates from member unions - Policy and action plans are developed and voted on at convention - At the convention delegates also decide directions and issues to be pursued in the next year - Federation executive also meets with memberships and constituencies throughout the year •

Participation issues and “the iron law of oligarchy” are apparent within provincial labour federations - Small unions may belong to federation but may not have sufficient membership or resources to fully participate in federation’s activities - Other unions may consider their own internal operations a higher priority than participation in external organizations - Thus, direction and control of federation may fall to larger unions or those unions with the resources and inclination to participate

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Provincial federations are financed by per capita dues from union members

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Most provincial federations employ a number of full-time paid staff; most executive members take a leave from their regular jobs

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One of the most important roles played by provincial labour federations is dealing with labour legislation issues - This is because labour legislation in most employment sectors is a provincial responsibility

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Provincial federations pressure and lobby provincial or regional governments; they also coordinate the activities of their member unions to support federation lobbying efforts - This is a particularly important activity if government appears likely to change labour legislation in ways that do not favour unions

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Provincial federations provide affiliated local unions and affiliated labour councils with communication, education, and research services

National Labour Federations • The Canadian union movement includes several federations that have affiliates either across the country or within certain geographic areas •

The Canadian Labour Congress (CLC) is the largest central labour body in Canada − Includes 90 affiliated national and international unions representing a wide variety of occupations − Occupations represented include steelworkers, government workers, auto workers, retail and service workers

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CLC membership also includes provincial and territorial labour federations, and 111 labour councils

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A number of local unions are affiliated to the CLC without representation through a secondary body

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CLC member organizations are referred to as affiliates

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Structure of the CLC • The CLC constitution includes - A code of union citizenship - A code of ethics - A code of ethical organizing •

The code of union citizenship acknowledges the distinctions in size, internal structure, and geographic location of its affiliates

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The code of union citizenship also recognizes that each union develops structures and functions that are appropriate for its industry and collective bargaining situation - Outlines objectives of CLC affiliates in providing services to members - The CLC code of ethical practices outlines the principles that should be followed to ensure a free and democratic union - The code of ethical organizing governs the relationships among affiliates - The code of ethical organizing encourages unions to organize workers who are not yet members of unions (i.e. not to focus on taking away members from other unions) - CLC encourages affiliated unions to organize new locals primarily, if not exclusively, in the jurisdictions they have historically occupied

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The CLC will mediate disputes between affiliates wanting to represent the same group of non-unionized workers

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The CLC constitution is based on the premise that affiliates will not organize or attempt to represent employees who are already organized and have an established collective bargaining relationship with another affiliate - This is intended to stop unions from expanding their influence by taking over membership of other unions – “raiding” - Raiding campaigns can consume excessive amounts of both parties’ resources and cause long-lasting bitterness - This provision is also intended to reinforce expectation that unions expand their membership by concentrating on organizing non-organized workers

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If an affiliate undertakes an action that might be considered a violation of this provision, the affiliate can claim justification to the CLC president − This claim may result in a “justification hearing” before the CLC executive

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The executive committee has the power to impose penalties if the affiliate’s actions are found to be unjustified - E.g., in 2009 the CLA suspended the membership of the British Columbia Nurses Union for attempting to organize licensed practical nurses and members of the other British Columbia health care unions.

The CLC constitution also allows some unions to join the CLC directly - CLC will directly charter the union as an affiliate and provide it with same services as other affiliates - If the independent affiliate decides to join a parent union, then the independent affiliation ends and union is represented within CLC by its new parent union

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The CLC holds a national convention every three years - The convention has been described as “the parliament of Canadian labour” - Every local union, provincial federation, and labour council is entitled to send at least one delegate and to submit motions to be voted on - Approximately 2,500 delegates attend for six days - Motions presented to convention usually cover a wide range of concerns - Delegates vote on motions and thus set CLC policy and direction for next three years - Delegates also elect CLC executive: president, secretary-treasurer, and two executive vice-presidents (all paid full-time positions) - Executive leads Executive Council which includes representatives of CLCaffiliated unions - To encourage diversity council seats reserved for women, workers of colour, aboriginal workers and LGBTQ workers - Executive council members often have extensive experience leading unions or other federations

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The CLC has a number of paid staff members - Staff are located both at its central office in Ottawa and five regional offices

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Staff may be full-time professionals (e.g., economists) while others may be union members on leave from regular jobs

Functions of the CLC • One of the most important functions of the CLC is to provide services to affiliates - These services include union education and organization, communication, political education, research, and representation on international issues - One example of service is “Labour College” that union executive members can attend to learn about e.g., negotiations or grievance handling •

The CLC also has staff across Canada to assist existing unions and workers wishing to create new unions

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The CLC also acts as the “voice of labour,” speaking for both unionized and nonunionized workers - E.g., makes representations to government on labour-related issues

Centralized Labour Federations • There are several large centralized labour federations located in Quebec representing different sectors of the Quebec union movement •

They reflect the different forces that have helped shape Quebec society

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Centralized Labour Federations Quebec Federation of Labour (FTQ) • Largest centralized labour federation in Quebec - Represents 40 unions with approximately half a million members •

Affiliated with the CLC, but the relationship is structured differently than other labour federations’ - Functions as an affiliate of the CLC in some respects and as an independent federation in others - FTQ is guaranteed a seat on CLC executive council - FTQ has exclusive jurisdiction in Quebec over functions such as education which CLC carries out in other parts of Canada - Per capita fees paid by FTQ members to CLC are adjusted to compensate for costs of services that FTQ members do not benefit from (e.g. materials in English) - FTQ has exclusive jurisdiction over operation of local labour councils in Quebec - FTQ also has the right to create its own policies on matters such as internal jurisdictional disputes - The reason for these provisions is to recognize FTQ’s special role within CLC but also to recognize “plurality” of labour federations within Quebec - These provisions attempt to give FTQ flexibility and authority to maintain its status as largest Quebec federation and as “voice” of CLC in Quebec

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The FTQ’s internal structure is very similar to that of the CLC - Congress is held every three years to set direction and policy - Each union can send a delegate to congress; each of the 14 regional councils within FTQ can send three delegates - Congress elects a 19-person executive, which oversees operations between congresses along with FTQ general council - FTQ general council has approximately 150 members

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The FTQ sponsors an investment fund, the Solidarity Fund, which is the largest venture capital institution in Quebec - Established in 1983

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Investors receive provincial and federal tax credits for contributions, and funds are used to create new jobs and assist companies in preserving existing jobs

Centrale des syndicats du Québec (CSQ) • A “federation of federations,” representing 11 federations that in turn contain over 240 unions - Membership also includes some direct affiliates •

Nearly two-thirds of the CSQ’s members work in education − the majority are public sector employees in Quebec − Until 2000 CSQ was known as CEQ (Corporation des enseignants du Quebec) − Name was changed to reflect broadening of membership beyond workers in education

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Directed by voting at a general congress held every three years - Nearly 1000 delegates attend - Delegates elect a five-person executive, who work with a 300-member executive council - Structure also includes an “intersectoral council” with 20 representatives from member federations and unions; this council deals with issues such as budgeting and integrating new affiliates

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Negotiating collective agreements is a major issue - CSQ wants to ensure consistency among public sector agreements - Has established a number of “negotiation structures” to determine consistent negotiating strategies and to coordinate bargaining among membership - Intersectoral negotiation council coordinates strategy and content of negotiations; general negotiation council defines bargaining objectives and establishes common demands and settlements

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Also provides its members with various services E.g. legal services, organizing support, insurance, union education and training, research and lobbying

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Centralized Labour Federations Confédération des syndicats nationaux (CSN) • Founded as a federation for Catholic workers − The CSN no longer requires members to be Catholic; it no longer has a formal connection with the church − During the 1980s, the CSN evolved from “a hotbed of hard-line Marxism” into a less confrontational organization •

Membership includes federations of unions in a broad range of industries and occupations - Unlike other Quebec-based labour federations, one of the CSN’s affiliated unions has members across Canada (2000, Union of Canadian Correctional Officers) - 13 regional councils represent specific geographic areas - Also several directly affiliated unions - Central office in Montreal and 26 regional offices throughout Quebec

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The supreme authority of the CSN is its congress which meets every three years - Approximately 2000 delegates - Votes on motions set direction for coming year; each member union can submit motions - Seven committees that meet during congress also make recommendations - Operations overseen by six elected executive committee members and Council representing the member federations and regional offices

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The CSN is involved in labour-management cooperation agreements and in a labour-sponsored investment fund, Fondaction - Provides services to members similar to those provided by other federations - Cooperation agreements intended to preserve jobs - Investment fund used to create and preserve jobs - CSN criticized FTQ at the time FTQ set up its labour-sponsored investment fund; establishment of CSN’s own fund seen as evidence of its ideological evolution

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International Labour Federations • International affiliations are becoming more important to many Canadian unions and labour federations because of globalization - Globalization puts more pressure on Canadian unions and federations to cooperate with other unions throughout the world •

The CLC and CSN are both affiliated with the International Trade Union Confederation, an “international union of unions” - FTQ also is affiliated through CLC membership - ITUC is a worldwide organization with 316 affiliated organizations in 158 countries and territories - Delivers labour education programs in regions such as Asia, Africa, and Latin America

• The International Labour Organization (ILO), based in Geneva, is an agency of the United Nations - Its main purposes are to formulate and promote international labour standards; it offers technical assistance in labour-related matters - ILO is not a federation in the sense of having affiliates in member countries - Researches and publishes reports on labour-related issues throughout the world - Also collects comparative statistics on e.g., strike rates •

The CLC is an affiliate of two other international organizations:

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The Trades Union Advisory Committee of the Organization for Economic Co-operation and Development (TUAC-OECD) - This organization acts as information conduit between member organizations and the OECD on labour-related matters - Holds twice-yearly plenary sessions; CLC currently has a seat on elected fivemember executive committee

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1. A local union is formed when a group of workers decide they want to be formally represented by a union. (The process of organizing and certification, which results in the union receiving this legal status, is described in Chapters 5 and 6.) The workers can be in one or several workplaces and/or in one or many occupations. The workers must choose whether they want to form their own union or join an existing one. A regional, national or international union can assist in forming a local union by guiding the workers through the legal process of certification. After certification, a regional, national, or international union can also support inexperienced union members in new processes such as contract negotiation. However, workers may feel that their working conditions or jobs are different enough from those of other workers that an independent union would better represent their interests.

2. The members of a labour council are delegates representing local unions in a specific geographic region, whereas a local union’s members are workers in a specific workplace or workplaces. Both labour councils and local unions have elected executives; however, the executive of a labour council is elected from among the delegates, while the executive of a local union is elected from among the local union’s members. Also, labour councils are generally run on a volunteer basis.

Local unions may have paid staff (administrative staff or a business agent) and may also pay their executive members, either in the form of a salary or honorarium or a paid leave from their regular jobs.

3. Federations of labour provide a variety of services to their members. Federations can assist in organizing campaigns. They can also help member unions who are engaged in bargaining, through offering assistance in developing bargaining strategy, or through offering information and research to back up bargaining demands. Federations can also help unions in grievance procedures or in other conflicts with employers. Other services that federations offer to their members include education programs, government lobbying, coordination of joint action, legal services, and communication and information services.

4. The Canadian Labour Congress is called the “union of unions” because it is the largest labour federation in Canada, and because its membership includes representation from most major unions in Canada. Also, like its member unions, it is structured and operated on democratic principles, as expressed in its code of union citizenship.

5. Democracy is a basic principle of unionism in Canada. Each member of the union has an equal vote and has an equal right to participate in the operations of the union. The union is expected to treat each member fairly and without discrimination.

The principle of democracy is expressed in the laws governing the formation of unions, which state that a majority of workers must demonstrate support for a union for it to become the legal representative of that group. Once a union is formed, the

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members collectively determine how it will be structured. There are few legal restrictions on union structure in Canada beyond requirements that union constitutions be filed with the appropriate labour relations board and that unions make regular financial reports to their membership. When a union is established, votes of the membership set the union’s policy and direction.

6. The CLC’s codes of ethical practices and organizing practices encourage its affiliates to organize unorganized workers, rather than to “raid” workers already represented by another union, and to organize in their own jurisdictions. If a dispute arises between CLC-affiliated unions over which union should represent a group of unorganized workers, the CLC will act as a mediator to help settle the question of jurisdiction. If a CLC affiliate undertakes an action that could be interpreted as violating the provision against organizing already unionized workers, the affiliate can claim “justification” in a hearing before the CLC executive committee. If the executive committee finds that the affiliate’s actions are unjustified, it has the power to impose penalties on the affiliate.

7. Quebec has several centralized labour federations because of the different ways that organized labour has developed in that region. The Quebec Federation of Labour (FTQ) represents primarily private sector unions, and is the only Quebec labour federation affiliated with the CLC. The Confédération des syndicats nationaux (CSN) was originally formed as a labour federation representing Catholic workers, although its formal ties with the Catholic Church ended in 1960. It once had a reputation as being a radical federation, which led several of its affiliates to leave and to start their own federations. The Centrale des Syndicats du Québec (CSQ) is a “federation of federations” whose membership includes 13 other federations. Its membership is primarily in the public sector.

8. The main reason for the increased importance of international union affiliations is globalization. Liberalized international trade and commerce has resulted in more common issues among unions in different countries, and thus Canadian unions can benefit from co-operating with unions around the world. The Canadian labour movement has recognized this reality by establishing formal linkages with several international labour associations, and by participating in programs that support workers in other countries.

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TEACHING NOTES FOR CHAPTER 4 EXERCISES 1. This exercise asks students to choose a union and depict its linkages with other labour organizations, using Figure 4-1 as a guide. This exercise may require students to interview a representative of a union or collect other first-hand information, Research from the Internet or other sources may not accurately describe the number of types of linkages. Explaining the development of these linkages and the benefits the union obtains from them may also not be possible without collecting first-hand information. Students could be assigned to do this exercise in groups rather than individually, to facilitate the collection of information.

They could also be assigned a specific union or unions that the instructor is familiar with and thus can provide some guidance to where information on the union(s) can be found.

2. This exercise asks students to choose a labour council or federation in their region and describe its structure, membership, and functions. As with Exercise 1, the results of this exercise may be more accurate if a representative of the organization is interviewed. The choice of which organization to research will depend on the region; in smaller cities or towns, the district or regional labour council may be the only immediate option. However, this exercise could be conducted using a provincial or centralized federation as the subject organization, with data collection conducted via phone or email contact. Like Exercise 1, this exercise could also be assigned to groups of students rather than individual students.

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 4 TOPICS http://www.hrsdc.gc.ca/eng/home.shtml The Human Resources and Skills Development Canada site contains information on Canadian unions, as well as facts and statistics on Canadian labour relations. http://www.cupelocal30.ca/ An example of a local union site: Local 30 of the Canadian Union of Public Employees, representing civic workers in the Edmonton area. http://www.fpse.ca/ The Federation of Post-Secondary Educators of British Columbia, a regional union. http://www.cupe.ca/ The Canadian Union of Public Employees, a national union. http://www.saskatoondlc.ca The Saskatoon and District Labour Council.

Provincial Labour Federations http://www.afl.org/ The Alberta Federation of Labour. http://bcfed.ca The B.C. Federation of Labour. http://www.mfl.mb.ca/ The Manitoba Federation of Labour. http://www.nlfl.nf.ca/ The Newfoundland and Labrador Federation of Labour. http://www.nsfl.ns.ca/ The Nova Scotia Federation of Labour. http://www.ofl.ca/ The Ontario Federation of Labour. http://www.sfl.sk.ca/ The Saskatchewan Federation of Labour. http://www.canadianlabour.ca/ The Canadian Labour Congress.

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Quebec Labour Federations http://www.ftq.qc.ca/ The Quebec Federation of Labour. French only. http://www.lacsq.org/ The Centrale des syndicats du Québec. (French website) http://www.csn.qc.ca/ The Confédération des syndicats nationaux. A French website with some English content.

International Labour Federations http://www.ituc-csi.org The International Trade Union Confederation. http://www.ilo.org/ The International Labour Organization. http://www.tuac.org/ The Trades Union Advisory Committee of the Organization for Economic Cooperation and Development.

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CHAPTER 5 The Organizing Campaign LECTURE NOTES

Chapter 5 Objectives At the end of this chapter, you should be able to: • Explain why workers would want to be unionized • Describe the steps in an organizing campaign • Understand what is required to apply for certification • Identify what factors must be addressed in a certification application • Identify two special situations involving organizing campaigns and certification applications

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The Organizing Campaign • Canadian labour legislation in all jurisdictions recognizes the right of most kinds of employees: - To freely choose to be a member of a trade union and to participate in the union’s lawful activities - This chapter focuses on how employees exercise that right •

Many employees are first introduced to the idea of joining a union through an organizing campaign

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An organizing campaign is conducted by a union in a workplace to persuade employees to choose the union as their legal representative in that workplace - Campaign is very important part of industrial relations system because its success or failure determines whether employees are represented by a union or not - Important to understand what an organizing campaign is, how it is initiated, and what legislation governs its conduct

Factors Affecting Employee Support for a Union • What are the factors that ultimately determine whether employees will vote for or against having a union?

- This is an important question because the difference between the number of votes for and against a union can be very small, even in a large workplace with many employees - Thus, every single vote is important in determining whether an organizing campaign is successful or not - Unions need to understand why workers might support a union so that they can use this information in designing organizing campaigns - Employers who wish to resist unionization also need to understand workers’ motivations in supporting a union (or not) so that they can address these motivations in its communications with employees - Employers also need to understand why employees are dissatisfied enough to consider joining a union so that they can address these causes of the dissatisfaction

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Researchers have identified many factors affecting this decision - This research has not always distinguished between the different decisionmaking points that employees pass through in the organizing process - Workers must first decide whether or not a union would be an asset to them - They then must decide whether to invite or to encourage a union to undertake an organizing campaign - Each individual worker then has to decide whether to vote for or against union representation

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Different factors may be more or less important at different decision points - Results of research studies can be placed into four categories: personal factors, workplace factors, economic factors, and societal factors

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Personal Factors • Parental attitudes or union activity - If parents were active in unions or held positive attitudes toward unions, workers may be more likely to support a union - This is because workers likely received positive, rather than negative, information about unions when they were growing up Instrumentality • If a specific union is perceived as being able to achieve changes that the worker cannot achieve, the worker is more likely to support the union - Union must be perceived as achieving more than worker can achieve individually - Union also must be perceived as being able to achieve change that worker desires - Even employees with pro-union attitudes may not vote to support a union if they do not perceive that union as being able to make desired changes - Pro-union employees may also not support a union if they feel they can make changes on their own without union’s assistance - Perception of the specific union is also important; an employee, even with pro-union attitudes, may not support a union they perceive as e.g., corrupt or criminal - However, instrumentality can also lead employees to support a union that cannot actually accomplish desired changes; employees will support union if they perceive that it can obtain changes, even if reality is that it can’t

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Perception and identity may also affect decision to join individual’s self-perception must fit image presented by union (e.g. study of campaign in a grocery store indicated that union presented itself as “business” but workers felt “product” did not address their needs) individual’s self-perception must also fit self-perceived identity (e.g. study of high-tech workers found that they did not perceive their working conditions to fit with those of a unionized workplace)

Workplace Factors − Most studies acknowledge that dissatisfaction with workplace conditions is the most common reason employees consider joining a union − Dissatisfaction can come from compensation rates (absolute or relative) − Unionization may be perceived as a way to remedy discrepancies - Likelihood of unionization in an organization rises if level of unionization in organization’s industry is 35% or higher; workers in non-unionized firms may perceive unionization as way to achieve parity with unionized workers - However, non-unionized firms may adopt similar pay/benefit structures as unionized firms to be competitive and to resist unionization; so-called “union threat effect” - Dissatisfaction can also arise from management actions or refusal to correct problems—problems with administration in general, inadequate benefits, lack of opportunity for promotion, and concerns about job security - Another workplace factor is the attitudes of others in the workplace - If co-workers feel more positively about unions, individual is more likely to support unions - Similar effect if family members want individual to support a union - Both of these groups are interested in individual’s work-related activities, and thus have influence on individual’s decisions related to the workplace - However, management and supervisor attitudes do not affect whether individuals support union or not; some studies indicate that the threat of retaliation may actually increase, rather than decrease, union support - Another factor is type of work and structure of workplace - One study looked at high-tech industry in U.S., whose workplaces were characterized as “rule-bound, rigid and insecure” - These are conditions that would appear to make workers favourable to unionization, but opposite was true

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Authors of study suggested that workers were anxious to keep jobs and unionization would threaten what little job security they had

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Economic Factors − U.S. study found that as level of unemployment in a state increased, likelihood that an individual would support a union increased, and likelihood of organizing campaign being successful also increased - This may be because workers see unionization as a means to achieve job security; however, other studies have found the opposite effect - Rate of inflation may also be influential - Some studies indicate that as inflation rate increases, workers may be more likely to join a union as a way to offset real wage decreases caused by inflation - This trend not always supported, and has not been found in some countries outside North America - Presence of a union may not only increase wage rates (“union wage premium”), but also amount of benefits; increase in benefits from unionization may be larger than increase in wages

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Societal Factors − General societal attitudes about unions also influence individuals’ inclinations to support a union in their workplace − One study of two Western Canadian cities in 1981 and 1987 showed approximately ½ of respondents had positive attitudes toward unions, but more than ½ of respondents said they themselves would not join a union - Suggested reasons for results: individuals may believe that unions have positive effects but at the same time may fear their power - Individuals may have friends or family who have had negative union-related experiences - Effect of individual demographic characteristics e.g., age and education - Study of U.S. non-union workers showed 3/4 of respondents thought unions were effective in improving wages and working conditions, but only 1/3 said they themselves would join a union - Suggested reason for results: specific beliefs about effect of union in one’s own workplace more important than general beliefs about unions

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Authors of Canadian study made similar suggestion: if individuals do not see personal benefit in joining union, they may not do so even if they hold prounion attitudes Another relevant factor may be whether labour legislation facilitates or hinders unionization One Canadian study of unionization rates between 1984 and 1988 attributes decline in rates during that period to legislation in Canada making certification more difficult Other Canadian studies have consistently shown that a mandatory workplace vote reduces success rate for certification applications This effect is shown even when the effects of external influences are controlled

Steps in the Organizing Campaign • A successful campaign results in the union being able to request recognition as the bargaining agent for the employees - “Bargaining agent” means the union is legally recognized as the sole representative of employees in the workplace - As bargaining agent, the union acts on behalf of employees in bargaining with employer and in administering the collective agreement that results •

An organizing campaign can be initiated by either a union or by the employees - Union may become aware of a group of dissatisfied employees and contact them to see if there is interest in organizing - Alternately, employees may decide to contact union themselves

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Most employees who initiate an organizing campaign decide to contact an established union - Employees can start their own union, but most choose to work with an established union because of union’s expertise and resources

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Organizing campaigns in the Canadian private sector generally follow the same pattern

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Steps in the Organizing Campaign The Information Meeting • The first formal step in an organizing campaign is to meet after working hours and off company property - Meeting may be preceded by informal discussions to see if there are enough workers interested in unionization •

Interested employees and a union representative discuss issues that generate interest in a union - They also assess the likelihood of a successful campaign •

Identities of employees interested in unionization are kept secret from employer and from pro-employer workers - Employees usually do not want to let employer know that they are considering unionization for fear of retaliation - Labour law makes it illegal for employer to fire, demote, or otherwise punish an employee for union participation, but that doesn’t mean it doesn’t happen - Identifying pro-employer workers and excluding them also reduces possibility that a worker may be a “mole” and leak information to employer

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The fact that an information meeting is being held may also be kept secret

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The Organizing Committee • If the information meeting suggests an organizing campaign could be successful, an organizing committee will be created •

The committee usually consists of several employees and an experienced union organizer - Employees conduct the majority of the campaign, because as “insiders” they will probably be considered more credible by their co-workers than an external source would be - Also, employees will already be familiar with other employees, the workplace, and the specific issues from first-hand experience

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Committee members will contact other employees seeking a formal indication of support for the union - Contacts will be made before or after work, on breaks, or at their homes - Employer has the right to forbid employees from seeking union support during working hours at work - This is because such activity could be very disruptive - The goal of contact is to get employees to sign a membership card or a petition indicating support for union - Employees may also be asked to pay a small fee; if union is certified, this money goes to union; if not, is returned to employee

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A constant concern throughout the campaign is the possibility of unfair labour practices (ULPs) - Definition of ULPs is outlined in labour law - such practices may affect the vote which in turn, may not reflect the employees’ true wishes - Unfair labour practices = any actions by employer or union that cause employees to act differently than they would have otherwise - Sometimes difficult to determine if an act is an unfair labour practice or what impact the act had - In some labour relations board decisions, employer’s intent in undertaking an action has been deemed less important than the impact of the action - In other decisions, employer’s actions have been so blatantly intimidating that union was certified even without sufficient levels of employee support

Factors Affecting the Success of an Organizing Campaign • What factors determine whether a campaign is successful?

- “Success” being either having enough support to file an application for certification or obtaining enough support in a representation vote •

Most successful union strategies are “rank and file” strategies - Personal contact with members, e.g. phone calls, house calls, small group meetings, representative organizing committee - Combination of strategies is more effective than a single strategy

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Unions must identify what is important to workers - Union must present its case to show it is aware of concerns and willing to address them - E.g. in grocery store study previously presented, workers did not like how organizers treated the vote like a business deal - Also did not like how union did not pay specific attention to workers’ concerns

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Two other factors are amount of control workers have over the campaign and amount of participation in campaign activities - As both of these increase the likelihood of success increases - Because of diversity in workforce, low rates of unionization in some demographic groups, and changes in labour market and work, workers have better understanding of needs in their own workplace - Participation can also help workers develop leadership/management skills - However, worker-centred organizing may be resented by experienced union organizers who feel their experience is being undervalued or misused

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Employer’s response to organizing campaign can also affect its success or failure - Employer’s words or actions during organizing can have a big impact - US data shows that American employers undertake 5 to 9 actions in response to an organizing campaign - Actions include hiring consultants to help in counter-campaign, holding meetings with supervisors, making promises for improvement - These actions reduce the possibility of success by an average of 20 percent - Some US employer tactics would be illegal in Canada - However, a survey in Canada shows approximately 80 percent of Canadian employers actively oppose organizing campaigns - Canadian tactics include hiring lawyers, communicating directly with employers, and limiting union communication with employees - Actions with the strongest effects include training managers to deal with the campaign (reduces possibility of success by 15 to 16 percent) and limiting union communication with employees (reduces success by as much as 14 percent)

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Steps in the Organizing Campaign The Application for Certification: • When the organizing committee believes it has sufficient membership support, the union files an Application for Certification with the appropriate labour relations board • This form has three major components: - An indication of sufficient membership support - A description of the desired bargaining unit (the group of employees that will be represented in collective bargaining with the employer) - An indication of the employer and the trade union covered

The Application for Certification Sufficient Membership Support • The question of what constitutes sufficient support is contentious - If too few employees support the union, there will be serious problems in negotiating and administering a collective agreement - On the other hand, Canadian law gives employees the right to join a union, and employees who want to do this should not be turned away simply because of the size of their group •

The required level of support varies from jurisdiction to jurisdiction: - Most jurisdictions require at least 40% of employees in proposed bargaining unit to indicate their support for the certification application

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A labour relations board may consider applications with less than the required level of support if the union can show that the employer committed an unfair labour practice

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The board will attempt to assess the effect of the employer’s behaviour

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The board then may: - Allow the application to proceed - Permit the union to attempt to collect further indications of support - Deny the application - Declare the union’s certification immediately - This last option may happen if labour relations board believes that employer’s actions have had such an impact that a vote or the number of signatures would not indicate employees’ true wishes - This last option may also happen if labour relations board is concerned that employer might continue intimidating behaviour prior to a vote on the application

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In some jurisdictions, if the level of support exceeds a specified amount, the union may receive automatic certification - Automatic certification = certification granted without an employee vote - Signatures on cards or petitions are considered to be sufficient indicators of support - Reasoning for this is that if most employees have indicated support for union, further tests of support (such as a vote) are pointless, and might give employer the opportunity to intimidate employees and pressure them to vote against union

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If the level of support for certification exceeds the stated minimum but does not reach the level needed for automatic certification (in jurisdictions where this applies) the board will require an employee vote

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The level of support required for certification applications to be made tends to fluctuate with the philosophy of the party in power - Political parties with anti-union philosophies tend to increase required levels of support, on the basis that a relatively small group of workers should not have the right to impose their feelings about unions on the whole workplace - Political parties with pro-union philosophies tend to decrease required levels of support, on the basis that legislation must give the benefit of the doubt to workers (who have less power than employers) and assist them in exercising their legal right to unionize

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This threshold is extremely important in determining whether organizing campaigns succeed or fail

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Study of Canadian jurisdictions showed that if required level of support was increased, number of certification applications and number of successful applications decreased

The timeliness of the application may also affect a board’s assessment - Board will look at how long it has taken for union to acquire required level of support - If it is a long time, employees who signed up near the beginning may have changed their minds, or may have left the organization altogether - Board has the option of disallowing an application if it believes the length of the organizing campaign might have affected the accuracy or timeliness of expressions of support

The Application for Certification Appropriate Bargaining Unit • Every certification application must contain a description of the bargaining unit the union seeks to represent; this generally consists of descriptions of the job positions that will or will not be represented by the union Two purposes for this bargaining unit description: •

Labour relations board can match employee signatures with job descriptions - Board needs to identify which specific employees are in proposed bargaining unit to assess whether necessary level of support for certification is present

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The board can assess whether the proposed unit is an appropriate unit

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Considerations a board will address in determining whether a bargaining unit is appropriate: - Size and location of the bargaining unit - Managerial and non-managerial employees - Definition of an employee

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The principle underlying all of these considerations is community of interest

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There should be enough relevant characteristics in common among the applicants to make the union a cohesive and representative unit

The Application for Certification Appropriate Bargaining Unit • Size and location – the union wishes to represent as many employees as possible because of dues and because representing more employees will give the union more power in bargaining with employer •

However, there are practical difficulties associated with administering a bargaining unit that is too large or whose members are too dispersed - Communicating with large membership is difficult, as is getting agreement - Members in different locations or in very different jobs may have particular issues that are lost in a larger unit; union may not be able to adequately represent members if unit is too large or too diverse

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A labour relations board tries to ensure a relative balance of bargaining power between the employer and the union - A large unit would have excessive bargaining power against a small employer - A small unit would have limited bargaining power against a large employer

The Application for Certification Appropriate Bargaining Unit • Managerial and Non-Managerial Employees – Who is eligible to be in the bargaining unit?

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A general policy in legislation is that bargaining units should not include both managerial and non-managerial employees - Managers are workplace representatives of owners and employer is entitled to rely on loyalty of its representatives; therefore, management should not be associated with other interests within the organization (e.g., employees or union) - All members of union are equal (principle of democracy) and thus it would be inappropriate to have a manager, with the power to discipline employees, in a bargaining unit with those he or she could discipline - A union is to be established without employer interference; having managers in bargaining units would provide the possibility for employer interference in union operations - Managers have access to confidential information (e.g., personnel records) and thus excluding them from bargaining unit protects employer’s interests and preserves union democracy

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However, it is sometimes very difficult to determine who is a manager and who is not - Title alone no longer indicates since many managers also do non-managerial work - This is increasingly true in new forms of organization e.g., flatter organizational structures - Board will look at several criteria to determine if job or individual should be included or excluded: - Authority to hire, fire or discipline - Responsibility for production or operations - Other positions reporting to this position, or direct supervision of other positions - Authority in a crisis or emergency - Access to confidential information - Division of working time between managerial and non-managerial duties - If the job or individual has any of the first five criteria, they will likely be excluded - If the individual spends the majority of their time doing managerial duties, regardless of job title, they will likely be excluded - In some jurisdictions managers have been permitted to unionize in separate bargaining units from those they supervise

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Exempt employees are usually excluded from the bargaining unit.

- These are usually those who perform work involving administrative support to top managers - Employees in these positions may have access to confidential information (e.g., budgets) - Such information could be very useful to the union e.g., in preparing for collective bargaining

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The Application for Certification Appropriate Bargaining Unit: Defining an “Employee” • An “employee” is generally defined in legislation as someone who works on a regular basis for an employer in a dependent relationship - Harder to identify now because of new forms of employment e.g., contract work - Legislation clearly states that one must be an employee to be included in the bargaining unit •

An employee is also someone who performs his or her work under the direction and control of the employer - Employer identifies the work to be done and determines how it will be carried out, and assigns work to the employee, and determines completion and quality needed

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The size of the bargaining unit may be reduced if employers replace full-time permanent workers with temporary, part-time, or contract workers - Most full-time permanent work arrangements are clearly held by employees - But some kinds of part-time or temporary work might not qualify

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An employer might also eliminate positions entirely and have the work performed by workers employed by another, non-union, company – known as outsourcing

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Labour relations boards generally hold that if a worker has an ongoing dependent relationship with an organization, the worker should be considered an employee and included in the bargaining unit - E.g., a limited-term contract worker who does not have contracts with any other employer would likely be an employee - Also anyone hired on a less than permanent basis who does the same work as existing bargaining unit members - Also temporary workers rehired on a succession of consecutive contracts

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Labour relations boards and legislators are strict about enforcing the definition of “employee”

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This is to prevent employers from escaping their responsibilities under the collective agreement by reducing the bargaining unit Reducing the size of the bargaining unit would give more power to employers in bargaining Also a cost incentive to employers to use non-permanent workers (lower pay and benefits) If employer removes positions from the bargaining unit, it may need to prove that this was done for “legitimate business reasons” and not to undermine the union Criterion for proving this is usually whether employer would have carried out the action regardless of whether the union was present or not

A board will not reject an application for certification simply because the application contains a bargaining unit description that the board considers inappropriate - The board will usually contact the union and suggest alterations - Union then has the choice of resubmitting application with revised bargaining unit, or proceeding with application as it stands and taking the chance that it may be rejected

The Application for Certification Defining an “Employer” • The applicant is required to indicate which employer the application covers - Not every labour code defines “employer” and this has caused problems - Many different forms of ownership (e.g., partnership, franchise, branch office, subcontracting) and sometimes not clear who actual employer is Criteria a labour relations board will consider when determining who is the employer: • Where does the authority for hiring lie?

- Which part of the business hires employees or carries out other human resource management functions • What part of the business is accountable for establishing and monitoring work conditions?

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Particularly relevant in situations such as franchises where central authority may issue very strict rules about work conditions which franchisees are expected to follow Who exercises control over day-to-day work and production?

- Does each part of the business have autonomy at this level, or does one part of the business control all everyday functions?

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A labour relations board may declare several business entities to be a single employer or common employer - This can be done when a single owner or corporation conducts business through multiple corporate entities that share resources - E.g., if one individual operates several franchises of same business, the franchises could be considered a single operation and all workers at them could be placed in one bargaining unit - Giving boards the power to make this declaration is intended to discourage employers from avoiding unionization by opening non-union operations and shifting work there

The Application for Certification: Defining a “Trade Union” • The final component in a certification application is an indication that it comes from a bona fide trade union - Most employees choose to join an existing union - If employees form a new union, labour relations board will look at constitution and meeting minutes to ensure there was no employer interference, and that union operates on democratic principles •

Under most labour codes, a bona fide union: - Is established free of employer interference - Employer e.g., cannot force employees to join a union, cannot give funds to help union start - Is run on democratic principles, e.g., one member, one vote; all members treated equally and fairly

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Most Canadian labour legislation does not recognize a company union as a bona fide union; this is an employees’ association that is dominated or influenced by an employer - Company unions may agree to the type of collective agreement known as a sweetheart agreement - Sweetheart agreement unduly favours management interests - Company union is usually powerless to negotiate an agreement that is not a sweetheart agreement, because union is controlled by company - Also, other processes such as grievance resolution are meaningless if union cannot independently represent employees’ interests - Because of this, employer-initiated organizing campaigns are almost unknown in Canada, even if employer has the worthy intention of giving employees a formal voice in workplace operations - E.g., if employer supported union financially but then had a disagreement, employer could withdraw funding and union would be unable to function ▪

Under most labour codes, a bona fide union: – Was established free of employer interference – Is run on democratic principles

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The Construction Industry • Canadian labour legislation recognizes that conditions for organizing in the construction industry differ from other industries - Workers work on different projects for different employers in the industry - Projects are limited-term and usually in a single location that ends once the project is complete •

Each project or work site is considered to be a workplace

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A separate certification must be obtained for each project and for each unionized trade working on the project - Timeliness is important because it would be pointless to issue certification after the project had ended

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A construction employer who wins a contract stipulating that unionized workers will be employed will contact the appropriate union and request that the union provide the appropriate unionized employees - This form of employer involvement in certification is considered permissible because the union is an independent union ▪

Under most labour codes, a bona fide union: – Was established free of employer interference – Is run on democratic principles

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Voluntary Recognition • Most Canadian labour law permits an employer to recognize the union’s right to act as the exclusive bargaining agent without official recognition from a labour relations board •

This acceptance is known as voluntary recognition - If this occurs, union and employer are governed by appropriate provisions of the relevant labour legislation

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The employer accepts the union as the employees’ bargaining agent without any representation vote or other formalization of the union’s existence

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Labour law in several provinces allows a board to grant certification if a voluntary recognition agreement has been in effect for several years

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1. If an employee’s parents or other family members held positive or negative opinions about unions, or had had positive or negative experiences with unions, those opinions and experiences might influence an employee’s own feelings about unions.

The employee would have received this information and possibly have formed an opinion about unions based on the information prior to joining the organization.

Family members may also influence whether an employee supports a union because they want their relative to have positive work-related experiences.

2. Dissatisfaction that causes employees to consider unionizing can come from a number of different sources. Employees might be dissatisfied with their pay and benefits. This could be dissatisfaction with the absolute amounts, or dissatisfaction with the amounts in comparison to what workers in other occupations or organizations are earning. Employees will also be dissatisfied if problems are brought to management’s attention and management refuses to address them.

Dissatisfaction can also result from problems with administration of the organization in general, lack of opportunities for promotion, and concerns about job security.

Dissatisfaction can also be caused by a lack of opportunity for employee participation in workplace decisions and a lack of opportunity for employees to cooperate with management.

3. The steps in an organizing campaign begin either by employees deciding to form a new union or to join an existing union, or by a union contacting employees to see if they are interested in certification. An information meeting is then held to assess whether an organizing campaign would succeed. If there appears to be sufficient support for a union, an organizing committee is formed by interested employees. A union representative may also be part of the committee, if the employees have chosen to join an existing union. The committee contacts workers and asks them to express support for the union by signing a petition or a membership card. When a sufficient level of support among the employees has been achieved, with “sufficient” as defined by the relevant labour legislation, the union submits an application for certification to a labour relations board. The application contains a description of the proposed bargaining unit, the signatures of those supporting the union, and identification of the actual employer and proof that the union is a bona fide union.

The labour relations board will then assess the application, and can either let the application proceed, grant automatic certification (if this is available), suggest alterations to the bargaining unit, or deny the application.

4. A provision in labour law for a required minimum level of support for certification ensures that the majority of workers in a proposed bargaining unit are in favour of having a union represent them. It would be unfair for a minority of workers to impose their views on the majority. In addition, it would be very difficult for a union to function effectively as an employee representative if it did not have the support of the majority of the workers. However, a labour relations board may permit an application for certification to proceed with less than the required minimum level of

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support if the union can show that the employer intimidated employees into not expressing their support when they otherwise supported the union.

5. One consideration of a labour relations board in determining an appropriate bargaining unit is whether the employees have a “community of interest”. In this situation, the workers all work for the same employer at the same location, and perform the same type of work. Therefore, there is clearly a community of interest.

However, it might be unreasonable to expect them to be part of a bargaining unit with manufacturing workers, because their working conditions and tasks would be quite different from the manufacturing workers, and there would be less of a community of interest in such a bargaining unit because the members would have different concerns. A labour relations board would also likely want to establish a bargaining relationship with relatively equal amounts of power on both sides. In this situation, if the group of workers is a very small part of the total workforce at the manufacturing plant, allowing them to be a single bargaining unit might give them an excessive amount of bargaining power. Those few workers could shut down the entire plant in the event of a strike or a lockout.

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An employee is someone who has an ongoing relationship of dependency with the employer and works for the employer on a regular basis. Thus, in determining who is an employee, a labour relations board would look at factors such as whether the employee works for other employers; whether the employee or the employer determines what work will be done and how it will be done; who assigns the work; and who is responsible for production of the work and its quality. Someone working on a part-time, temporary, or other non-permanent basis could be considered an employee if the employer directs and controls the work and if that person is solely dependent on the employer for his or her income.

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Whether an individual is a manager is not determined only by their job title. A labour relations board will look at whether the individual’s position has the authority to hire, fire and discipline workers; whether the position is responsible for production and operations; whether the position has other positions reporting to it, or supervises work done in other positions; whether the position is the authority in a crisis or emergency; and whether the position has access to confidential information. If any of these criteria are applicable, the position will likely be deemed a managerial position and excluded from the bargaining unit.

Also, a labour relations board will look at what proportion of time in the job is spent on managerial and non-managerial tasks. If the majority of time is spent on managerial tasks, regardless of the job title, the position will likely be deemed managerial.

7. Who is named as the employer in a franchising situation would depend on the nature of the agreement between the franchising company and the owner of the franchise.

In some franchise arrangements, the individual franchise owner has very little discretion in how the individual franchise is run, and is expected to closely follow

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very rigid procedures and policies. It could be argued that in this type of franchising the actual employer is the franchising company, since the company determines and controls how work is performed within individual franchises. In other franchise arrangements, the owner of the franchised unit has a great deal of discretion in how to operate the franchise, including making their own decisions on workplace procedures and policies. In that form of franchising it could be argued that the employer is the franchise owner, since he or she has the authority to determine his or her own workplace rules.

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TEACHING NOTES FOR CHAPTER 5 CASES Case 5-1 Lucky Resort and Staff Workers Union This case is based on SEM Resort Limited Partnership and BC Government and Service Employees’ Union (BC Labour Relations Board No. B152/2013). Decision date July 31, 2013.

The labour relations board determined that the union’s proposed bargaining unit was appropriate for collective bargaining, and dismissed the employer’s objections to the unit. They ordered that the ballots in the certification vote be counted, with the exception of two ballots which the union and the employer mutually agreed should be excluded.

The reasons for the decision included: - The union’s proposed bargaining unit included employees who had contact with the public in doing their jobs, but excluded employees who did not have contact with the public (e.g. the employees on the casino “drop team”).

- Although many of the resort’s management and operational functions were centralized, the union’s proposed bargaining unit included jobs in areas (e.g. casinos, kitchens) that were directly supervised by separate managers.

- The union’s proposed bargaining unit included the majority of the resort’s employees.

- “The fact that customer service and satisfaction may be a common focus for all employees, or that the same customers may patronize different parts of the operation, does not mean that the only appropriate unit is an all-employee unit for the entire operation” (p. 9).

- While many of the employees work in what the employer characterizes as a “continuous work process”, jobs in many parts of the process are replenishment of supplies (e.g. cash). Those jobs are not required to be interdependent as they would be in, for example, an assembly line production process.

- The casino operates under regulatory and legal requirements which make it impossible for some jobs (e.g. surveillance) to be included in the bargaining unit.

- While there are clearly duties that are shared among jobs, as indicated in the casino’s Service Standards, it is also clear that there are positions with primary responsibilities for these duties, and that other staff are only expected to carry out these duties if they have time to do so. This is not evidence of “functional integration” of duties or jobs.

- While there are overlaps in duties between positions such as housekeepers and maintenance staff, this overlap is to ensure a smoothly running operation. It is not an interdependency.

- Even if the composition of the proposed bargaining unit maximizes the union’s chances to achieve a certification, as the employer alleges, this does not mean the proposed unit is inappropriate for bargaining purposes.

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Suggested Discussion Questions for Case 5-1 1. In many workplaces there are duties that are shared between jobs. How much effect should this have on the composition of a proposed bargaining unit?

2. Many workplaces operate under legal or regulatory requirements that affect job duties and job performance standards. How can these requirements be balanced with an employee’s right to choose to be represented by a union?

3. In your opinion, what evidence would show that a set of jobs were so interdependent that they could only be included in a single bargaining unit?

4. If you were the labour relations board, what would you decide in this case?

Case 5-2 Hamill College and Hamill College Teachers Association This case is based on Concordia University College of Alberta Faculty Association and Concordia University College of Alberta (Alberta Labour Relations Board file no. CR04572). Decision date July 13, 2012.

The labour relations board ruled that the appropriate bargaining unit would include all full-time faculty members. It directed that only the ballots cast by full-time faculty members in the certification vote would be counted.

The reasons for the board’s decisions were: - It defined its mandate in cases such as this as not to determine the most appropriate unit for bargaining, but to determine whether the bargaining unit proposed in the union’s application was an appropriate bargaining unit.

- Much of the evidence presented to the board was to argue whether the proposed bargaining unit was the most appropriate bargaining unit, including references to previous cases involving primary and secondary educational institutions. The board felt that post-secondary institutions were structured differently enough from K-12 institutions for decisions involving those institutions to be irrelevant to the current case. The board also noted that K-12 institutions are regulated under different legislation than post-secondary institutions.

- The board’s general policies cite the criteria for an appropriate bargaining unit as including: o A community of interest among the employees, including the nature of the work o The bargaining history between the parties o Avoiding undue fragmentation between bargaining units o The nature of the employer’s organization o Any specific difficulties with union organizing in this location o The desires of the employees

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o The desires of the employer o The viability of the proposed bargaining structures In this case, the issue of community of interest is crucial, but the union’s proposed bargaining unit is also important, including whether the boundaries of the unit are definable and defensible.

What the union has proposed as a bargaining unit in this case has a clear community of interest; the boundaries of the unit are defined and are easily explained; and the employees in the bargaining unit clearly believe it is an appropriate unit. The board also noted that the employer itself treats full-time employees differently than part-time employees.

The board acknowledged that sessional instructors perform the same duties as full-time instructors, and many have the same academic qualifications. However, the full-time faculty have permanent contracts, different benefits, a different hiring system, and different job duties when they are not teaching.

The board acknowledged that a bargaining unit excluding sessional instructors may not be the most appropriate bargaining unit, because other post-secondary institutions have bargaining units that include sessional instructors. But there is also the potential for problems within such bargaining units.

The board stated that it did not hear enough convincing evidence to establish that laboratory teachers, laboratory technicians, professional librarians, and field placement coordinators had sufficient community of interest with full-time faculty to be in the same bargaining unit.

The board noted that although it was establishing a bargaining unit that only included full-time faculty, the union and the employer could still bargain for groups of employees not otherwise certified. In other words, the parties could agree to include these groups in collective bargaining even though they are not part of the certified bargaining unit.

Suggested Discussion Questions for Case 5-2 1. In many workplaces, there are full-time and part-time employees, or permanent and temporary employees, with similar job titles and performing similar duties. In such situation, which factors should be considered in determining an appropriate bargaining unit?

2. In this case, there are professionally-qualified employees (such as librarians and laboratory technicians) who interact with students but who do not formally teach courses. In your opinion, how much “community of interest” do these employees have with the employees who teach classes?

3. The evidence presented to the board indicates that there are a number of sessional instructors who have worked at the college for more than 10 years, even though they are technically still temporary employees. In your opinion, should the bargaining unit include instructors with this status? Why or why not?

4. If you were the labour relations board, what would you decide?

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 5 TOPICS

http://bcfed.ca/unions/join-a-union A guide on how to join union maintained by the B.C. Federation of Labour. Subjects covered include provincial code, job security, applying for recognition, appropriate bargaining units and representation votes. http://www.statcan.gc.ca/ The Statistics Canada website. A wealth of information on the labour force, the labour market, and employment trends. Includes union membership statistics.

Provincial Labour Boards Most of these sites contain links to the relevant labour code. There are also links to labour legislation (under “Statutes and Regulations”) and some jurisdictions’ labour relations boards at the Canadian Legal Information Institute website: http://www.canlii.org/en/ Canada Industrial Relations Board http://www.cirb-ccri.gc.ca/ Alberta Labour Relations Board http://www.alrb.gov.ab.ca/ Labour Relations Board – British Columbia http://www.lrb.bc.ca/ Manitoba Labour Board http://www.gov.mb.ca/labour/labbrd/ New Brunswick Labour and Employment Board http://www.gnb.ca/leb-cte/index-e.asp Government of Newfoundland and Labrador Labour Relations Board http://www.hrle.gov.nl.ca/lrb/ Nova Scotia Labour Relations Board http://www.gov.ns.ca/lae/labourboard/ Ontario Labour Relations Board http://www.olrb.gov.on.ca/ Prince Edward Island Labour and Industrial Relations http://www.gov.pe.ca/labour/index.php3?number=1006679&lang=E

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General information regarding labour laws in Quebec and Le Bureau du commissaire général du travail http://www.cnt.gouv.qc.ca/en/home/index.html Saskatchewan Labour Relations Board http://www.sasklabourrelationsboard.com/

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CHAPTER 6 Establishing Union Recognition LECTURE NOTES

Chapter 6 Objectives At the end of this chapter, you should be able to: • Explain how an application for certification is handled by a labour relations board • Understand the effect of certification • Explain some of the special circumstances that may arise in a certification application • Define and give examples of an unfair labour practice

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Assessing the Certification Application The Workplace Notice • When an application for certification is received by a labour relations board, in most provinces the employer and employees must be officially notified • An official notice is sent by registered mail and the employer must post the notice of the application - Notice will name union applying for certification, describes proposed bargaining unit, indicates that interested parties can make submissions, and specifies where such submissions can be made - This posting is required so that all employees are aware of application for certification and so that employees have the opportunity to make submissions to the board regarding the application - Any submissions will be taken into consideration when the board assesses the application • In some provinces, the notice must include a terminal date − This is the deadline by which submissions from any interested parties must be received for consideration by the board Determining Employee Support • After determining the appropriate bargaining unit, a labour relations board will assess the level of employee support for the application • Employer provides a list of employees and the Board compares this list with union’s list of signatures supporting the application − The purpose of this comparison is to make sure that application is supported by required number of workers in the proposed bargaining unit − This becomes complicated if there has been a delay between the collection of signatures and the submission of the certification application - Employees may have left the organization or may have moved to different positions - Employees supporting the application have to be currently employed by the organization and employed in positions within the proposed bargaining unit - There may also be problems with readability of signatures or question whether signature was actually written by person whose name appears • The board may require additional documentation - E.g., copies of driver’s licences or other ID to support validity of signatures

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Assessing the Certification Application The Representation Vote • If the level of support for a certification application is above the required minimum and automatic certification is not an option, a labour relations board will usually set a date for a representation vote - This is a vote held to determine whether employees wish to be represented by a union •

The required level of support for the application varies from jurisdiction to jurisdiction: - Range from minimum of 35% (Quebec and federal) to minimum of 45% (Manitoba, New Brunswick) - Provinces that set minimum and maximum levels usually permit automatic certification for support above the maximum level

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Labour relations boards generally attempt to minimize the time between the filing of a certification application and the representation vote

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The representation vote is a secret ballot, conducted at the workplace by the board

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The ballot asks the employees if they want the union to be their exclusive bargaining agent - In some jurisdictions, only employees in the proposed bargaining unit can vote; in others, all employees are eligible - For union to be certified at least 50% + 1 of voters must vote in favour of the union

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Assessing the Certification Application (cont’d) The Representation Vote • Excessive delays may allow either side to unduly influence the vote - In some jurisdictions representation vote can occur even if all issues related to certification have not been resolved, so that there is less opportunity for voters to be influenced •

If the vote is successful and no extraordinary circumstances arise, the board will issue a certification order

The certification order: - Legally creates the bargaining relationship between the union and the employer - Makes the union the exclusive bargaining agent for the employees in the bargaining unit - Compels the parties to commence bargaining for a collective agreement - Compels the parties to bargain in good faith - They must bargain honestly and with the intent of reaching a collective agreement •

70 percent of certification applications result in a union being legally recognized as the employees’ bargaining agent

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Applications for certification can be withdrawn before the certification process is complete

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Common reasons for withdrawals: disagreement between board and union over composition of appropriate bargaining unit; union feeling that boardimposed bargaining unit has little chance of winning representation vote; large number of questionable signatures on application for certification If the union believes its application may fail for any of these reasons, it has the option of withdrawing the application and resubmitting it with more substantive indications of support

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If a representation vote fails, most Canadian jurisdictions ban other certification applications for a set period - This is because certification is time-consuming and divisive, and issues involved may affect productivity and relationships between workers - If a ban was not in place, workplace could be disrupted by never-ending series of organizing campaigns

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Most Canadian labour codes set limits, known as time bars, that restrict the time within which organizing efforts can take place.

- The time bar that applies after a previous certification attempt has failed is known as an application bar - Some jurisdictions impose applications bars if previous certification application is under review or the subject of court proceedings - In most jurisdictions, unions cannot withdraw certification application for nontechnical reasons as a way of avoiding the application bar - This is so unions do not try to salvage unsuccessful organizing campaigns by terminating one certification application and immediately reapplying to represent the same group of workers - Most jurisdictions give the labour relations board the power to waive the application bar if union made some inadvertent error in its application

Assessing the Certification Application The Hearing • At any point during the assessment of the application for certification, a labour relations board may hold a hearing

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A hearing is usually held if there is some dispute over the content of the application or its surrounding circumstances - E.g., if there is an application for a very small bargaining unit within a very large company, board might want to know why union is applying for this particular bargaining unit - Hearing can also be justified if there are allegations of unfair labour practices during the organizing campaign or if union and employees disagree over composition of proposed bargaining unit

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A hearing is conducted in a manner similar to a court session - Board members will listen to submissions on the dispute - Submissions made by e.g., union, employer, employees - Each party presents evidence and is cross-examined by board members and by other parties - After hearing evidence, board members consider the evidence and make a decision

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Following a hearing, the board may: - Reject the application - E.g., if it feels proposed bargaining unit is inappropriate - Alter the bargaining unit - E.g., if it feels proposed bargaining unit needs adjustment - Order a representation vote - E.g., if actions taken on behalf of the union or employer have unduly influenced employees - Board has power to do this even if level of support is such that a vote would not usually be required or the application would not usually be considered - A new vote can also be ordered if there is evidence that an earlier vote was flawed e.g., tampering with ballots or individuals voting who should have been excluded

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The board may impose remedies.

- In most jurisdictions, the board may declare a certification even if the required minimum level of support is not present -

Remedies could include e.g., requiring employer to post notices or send letters apologizing for its actions Certification without required support can be declared e.g., if employer or union actions so intimidated employees that a vote would not reflect employees’ true wishes

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Special Circumstances during Certification Certification for a Previously Unionized Workplace • A certification remains in effect for as long as the parties involved wish it to and the parties themselves do not change •

A union may attempt to certify workers represented by another union – this is known as a raid

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Some unions do not raid on principle; others raid regularly - Some unions consider raids damaging to strength of labour movement as a whole, and feel that membership should be expanded by organizing unorganized workers - Other unions feel they could do a better job of representing workers; feel that there is less work involved in organizing unionized workers rather than nonunionized ones; or see their traditional membership base eroding and want to bring in more members

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No Canadian labour legislation explicitly forbids raiding - Such a restriction would interfere with right of employees to freely choose their workplace representative - There is also no requirement that employees be represented by union directly associated with their type of employment, so raiding unions do not need to confine themselves to current industries or occupations represented

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Raids can occur when employees feel dissatisfied with the representation provided by their current union − A raid may begin on the initiative of either the employees or a union

Certification for a Previously Unionized Workplace • Labour codes impose time bars that restrict when a raid can take place.

- They generally ban organizing for a certain time after a certification order has been granted to a previously non-unionized workplace - This restriction is to give newly certified unions a chance to represent their members without the threat of a more experienced union poised to take over

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In new unions, individuals may have little experience with e.g., contract negotiation Restriction allows union executives and members time to gain skills to run union effectively without having to fend off an organizing campaign

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Another time bar sets certain times during the term of an existing collective agreement when a certification application can be submitted – these are known as open periods - Generally applications can only be made during specified times in a multiyear agreement or within a certain period toward the end of a single-year agreement - These restrictions ensure that union and management representatives do not have to deal with raids while trying to negotiate a new collective agreement - They also allow the existing agreement to run its course without interference or distraction of a raid

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There are no legal restrictions on the number of unions that can simultaneously attempt to organize the same existing bargaining unit - Usually there is only one union but there have been cases of raids by more than one union on the same group of workers at the same time

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A certification application covering a unionized workplace is assessed using the same criteria that would be used to assess any other type of certification application

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A board is more likely to order a representation vote in such a situation to ensure that the employees truly wish to change their union representation

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If the representation vote is successful or if a certification order is issued without a vote, a new certification order is issued to replace the previous certification

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If the representation vote fails or if the certification application is rejected, the time bars on subsequent applications are the same as if the workers had previously not been unionized

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Special Circumstances during Certification Certification if the Parties Change • Some form of re-certification may be required if union or employer changes in some way •

If the union merges with one or more other unions, the merged union usually applies for certification under its new name

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A labour relations board may order a representation vote or may alter the certification without a vote

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If the union ceases to exist and the workers do not wish to be represented by another union, the workers would usually file for decertification.

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Decertification cancels the existing certification and makes the workplace nonunion − Discussed in more detail in Ch. 12

Special Circumstances during Certification Certification if the Parties Change (cont) • If the employer goes out of business, the certification is considered to have lapsed. The union or employer can apply for decertification.

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Certification is considered to have lapsed because employees are no longer employed and one of the parties (employer) named in the certification order no longer exists Decertification is a legally binding declaration that union-employer relationship has ended

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If the employer merges with another business or expands, the board must decide whether the existing certification still applies. This circumstance is known as successorship

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The board must decide whether employees whose positions were not part of original bargaining unit should now be included - Successorship discussed in more detail in Ch. 12

Certification Applications during a Strike or Lockout • Several Canadian jurisdictions have time bars that restrict when or if certification applications can be made during a strike or lockout •

In some jurisdictions, an application for certification cannot be made if an illegal strike has taken place in support of the certification attempt - This rule exists to emphasize that certification, not striking, is how employees should promote change in the workplace - Certification was made a legal process so that unionizing would be a viable alternative to striking as a way for employees to express dissatisfaction - In some jurisdictions an application for certification will not be accepted if an illegal strike related to certification attempt takes place

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In some jurisdictions, a certification application cannot take place during a legal strike or lockout - Such application would usually be made by another union attempting to represent the striking or locked-out workers - Application might be perceived as undue interference with collective bargaining, or an attempt by one union to exploit weak status of another - Strikes and lockouts are usually quite emotional, and those employees who disagree with rationale for strike or lockout might be especially vulnerable to the suggestion of representation by a different union

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Unfair Labour Practices Definition and Legislative Philosophy • An unfair labour practice is an action taken by an employer, or, less commonly, by a union, that has the effect of unduly influencing the “private decisions” made by the employee in the certification process Legislation must incorporate several different considerations • The inherent balance of power in most workplaces - Employer has extensive power over employees work (including whether employees have a job or not) - Employer also controls how work is done in the workplace - Legal restraints are needed to ensure employer does not abuse this power during certification, since employee has legal right to join union without employer retaliation or interference •

The employer’s legal rights - Employer has right to free speech - Not feasible or fair to completely ban employer-employee contact during certification, since the workplace would be unable to function without this contact - It would be impossible to operate the workplace if employer could not speak to employees

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Special Circumstances During Certification • It may be difficult to clearly determine whether an employer’s actions are legitimate or intended to intimidate employees E.g., if employer says something like “I do not support a union”, is that a statement of fact or is it a threat?

• It is impossible to prevent unfair labour practices – a labour relations board can’t continuously monitor a workplace - LRB cannot be present for every employee-employer interaction and cannot assess the impact of every activity •

Even if a complaint is upheld, the effects of the behaviour can still influence the outcome of an organizing campaign

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Unfair labour practices tend to occur most often during the certification process - Employees are more vulnerable during certification because they are not yet protected by collective agreement - Employers might take advantage of this by demoting, disciplining, or firing employees who are known union supporters - The point of this would be to intimidate other employees who wouldn’t want the same thing to happen to them - One recent survey of employers showed that 12% of respondents engaged in at least one action during organizing that could be considered an unfair labour practice - In this study the most commonly reported forms of employer action were downsizing, laying off, or dismissing employees

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It is more common for complaints to be brought against employers because the union has less power to intimidate employees - Union is more likely to exert undue influence e.g. by promising employees better wages if they join the union - Union, unlike employer, does not have ability to fire or discipline employees

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Employer complaints about unions’ unfair labour practices during certification attempts usually focus on organizing activity during prohibited times or in prohibited locations

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Legislation • Most labour codes in Canada outline contain guidelines for employer and union behaviour •

An employer cannot participate in or interfere with the formation, selection, or administration of a trade union.

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Nor can an employer participate in the representation of employees by a union or contribute financial or other support - Employer or its workplace representative cannot oppose organizing campaign but also cannot support it - Union must be independent so that it can independently represent employees

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An employer is free to express views for or against the union so long as the employer does not use coercion, intimidation, threats, promises, or undue influence

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It is often very difficult to determine when an employer’s comments constitute an unfair labour practice - Statements made in one context (e.g., informal discussion between peers) could have completely different impact in another context (e.g., stated by manager at meeting that employees are ordered to attend) - Interpretation of comment by recipient is also important; what one person perceives as intimidation could be perceived as meaningless by someone else

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The context and perception of the expressed views, as well as their content, need to be considered - Wording of Canadian labour codes attempts to capture range of possible behaviours or statements that could be considered unfair labour practices - Wording also tries to be broad enough so as not to exclude any behaviour or statements

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If employees are disciplined or fired during a certification attempt, the employer may need to prove that these actions were justified or necessary - E.g., if a union activist is demoted, labour relations board would expect to see evidence that his/her work was a problem prior to the organizing campaign, and/or that s/he had been warned about work problems - Sometimes performance problems “mysteriously” emerge as soon as employee becomes active in organizing campaign

Unfair Labour Practices • A labour relations board will look at whether the employer’s action resulted from an anti-union animus •

This is defined as whether the employer’s opposition to the union manifested itself in actions that harmed employees who were active in the union

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In some jurisdictions, anti-union animus is enough to support a declaration of an unfair labour practice - E.g., even if employee’s performance record justifies discipline, an unfair labour practice could still occur if employee is disciplined because of antiunion animus

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A reverse onus applies in most Canadian jurisdictions − the employer must prove its actions were not motivated by anti-union animus - In civil court cases, the onus would be on the employee or the union making the complaint to prove that employer’s actions were not justified - In this situation, union cannot reliably explain employer’s thought processes in deciding on action, so employer must prove motivation for its own actions

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An employer might be found to have committed an unfair labour practice if its action had the effect of influencing employees’ behaviour, even if that was not the employer’s intent - E.g., employer’s intent might be simply to give employees information by distributing handout about unionization in other companies,

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but if employees perceive this action as implying threats about what will happen if union is certified, distribution could be seen as an unfair labour practice

Unfair Labour Practices Dealing with an Unfair Labour Practice Complaint • If an employer, union, or employee believes that an unfair labour practice has occurred, it can file a complaint with the labour relations board •

The standard of proof in all cases before a labour relations board is the balance of probabilities.

- This is less rigorous than the standard of “beyond a reasonable doubt” used in criminal court

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Still requires sufficient evidence showing the probability that the disputed action was justified - E.g., if employee involved in organizing campaign is fired, employer would have to prove “balance of probabilities” by showing such evidence as the employee’s poor work record and was warned about it prior to start of campaign - Employer might also have to show other evidence such as proof that employee was offered training to help with performance problems

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Unfair Labour Practices An Example of an Unfair Labour Practice Complaint • American Airlines Inc. vs. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees •

Employees were forbidden to place union information in workers’ mailboxes, even though non-company material was regularly left in the boxes - Company operated a call centre where employees worked varied shifts; employees were expected to check mailboxes before starting a shift so they would be up to date on work-related information - Materials such as blood donor clinic notices and party invitations were often placed in mailboxes - On at least two occasions employees were forbidden to place union information in mailboxes, because company’s written policies required company approval for distribution of literature on company premises, and using company time for non-company business was prohibited

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A senior company official held events called “rap sessions” that employees were compelled to attend - These were held after organizing campaign started - At these meetings, management staff introduced themselves, talked about company’s business plans, and answered employee questions - Management made no specific statements about unionization, but if employees asked they were told that employees had a choice whether or not to join a union

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This official sent all employees a letter that discussed the certification drive - Official claimed that employees were confused about the impact a union would have - Letter indicated that other companies in same industry had reduced workforce after unionization - Letter stated that “we firmly believe” everyone’s interests would be “best served” by remaining non-union - Letter described how presence of union would change seniority practices, reduce take-home pay, and possibly cause a strike

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Letter asked employees “to think very seriously before…tak[ing] any action” that would bring in a union

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The company argued that the letter did not contain any direct threats or instructions not to join the union.

- Company said letter was a statement of company’s opinion

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The union argued that the letter implied that there were negative consequences of unionization that had occurred elsewhere and that would occur at this organization if it became unionized

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The labour relations board found the letter constituted an unfair labour practice – even statements that are not explicit threats can effectively be threats - E.g., statement of employer’s position could intimidate employees who don’t agree with employer’s position

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The board held that the ban on distribution of union material in workers’ mailboxes was an attempt to intimidate employees

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The board noted that the company had not enforced its policy against noncompany material in the mailboxes - Policy had been in effect for several years and was not enforced until after organizing campaign started

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The company had not demonstrated that the union material disrupted operations - While the board did not specifically address the rap sessions, these could have been interpreted as intimidation because employees were compelled to attend

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Unfair Labour Practices Remedies for Unfair Labour Practices • A labour relations board will usually choose a remedy that will make whole the situation – i.e., attempt to put the parties to the complaint in the same situation they were in before the unfair labour practice occurred •

Examples: - Reimbursing a union for extra organizing expenses - Union might have to spend extra money responding to employer’s actions - Reinstating employees disciplined because of anti-union animus

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Make-whole remedies can also attempt to reverse any damage an unfair labour practice has caused to an organizing campaign.

- Examples: - Allowing union organizers into the workplace - Allowing employees or unions to use company bulletin boards - Allowing the union to hold information meetings in the workplace during working hours

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Unfair Labour Practices Remedies for Unfair Labour Practices • Labour boards have “wide powers to issue remedial orders” appropriate to the circumstances - Making whole can be difficult - Unfair labour practice may have already intimidated employees and any subsequent action may not be able to correct that •

If an organizing campaign is in progress, the board can issue a “cease and desist” order - Board can also order that employees be compensated for any financial loss as a result of employer’s actions, e.g., lost earnings from demotion or dismissal - If board is concerned that unfair labour practice may not stop after “cease and desist” order, order can be filed in provincial or federal court, so that violation of order is treated the same as violation of a court judgement

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In extreme cases, the board may order a new representation vote - This can be done if pro-union employees were afraid to vote in favour of certification or if anti-union employees were afraid to vote against it - Result of new vote would override results of any previous votes - Employees may still be intimidated the new vote at least takes place after employer’s or union’s behaviour has been officially condemned

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In some jurisdictions, the board may impose a certification order - This can happen even without required amount of support or without clear majority in a representation vote

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Unfair Labour Practices Remedies for Unfair Labour Practices • The remedy in the American Airlines case: - The board ordered the company to write a new letter to all employees, on company letterhead, indicating that the earlier letter had been found to be an unfair labour practice - A copy of the board’s reasons for its decision was to be included with the new letter - The company was directed to allow distribution of union literature in workers’ mailboxes

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1) A representation vote might not be required for certification if there is evidence that employer or union actions (i.e., unfair labour practices) have influenced employees to the extent that the results of a vote would not reflect their true wishes. In this situation, a labour relations board can order a certification without a vote. The other situation in which a representation vote would not be required for certification is automatic certification. In the jurisdictions which permit this, certification is automatically granted if the level of support expressed on the application for certification exceeds a stated percentage of all employees in the proposed bargaining unit. The reasoning for allowing automatic certification is that a representation vote is pointless if a large proportion of employees have already expressed support for a union. Requiring a certification vote in that situation would only give the employer additional time to unduly influence employees.

2) In an organizing campaign, the employee has the right to join a union without employer interference or intimidation. However, the employer also has the right to express his or her views on unionization. Labour legislation balances these competing rights by establishing conditions within which the employer can express his or her views but not unduly influence employees. Employers are not completely banned from communicating with employees during an organizing campaign, but they must not express their views in such a way that employees might be intimidated into voting against their true wishes. The labour relations board cannot be continually present in the workplace to monitor employeremployee interactions and to assess their impact, but the labour relations board expects employers to be aware of the actual or potential impact employers’ statements to employees might have, and to frame their remarks appropriately.

3) Restrictions on when certification applications can be made are there to ensure that workplaces are not continually disrupted by ongoing organizing campaigns, and also to ensure that newly certified unions have a fair chance to establish and prove themselves as competent employee representatives. There are restrictions on when a certification application can be filed if a previous application was unsuccessful, and there are also restrictions on when an application can be filed to represent a group of workers that is already unionized.

4) This question is based on an actual British Columbia Labour Relations Board case. In that case, the board found that the company’s actions constituted an unfair labour practice. The main reason for this finding was the context in which the employer delivered its information. The board ruled that the format of an individual meeting with the manager was unduly intimidating to the employees, especially those who were not fluent in English and might not fully understand the difference between this sort of meeting and other meetings involving managers, such as a disciplinary meeting. The company argued that its intent in

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holding the individual meetings with employees was to give them information, and that this format was the only way to achieve that goal. It claimed that the varied linguistic abilities of the employees would have made it difficult to convey the information accurately in a single group meeting. However, the board did not accept this argument. The board also noted that many of the employees had vulnerable employment status; many of them were working in these jobs because they did not have adequate English skills to obtain any other kind of job.

That, in the board’s view, made the format of the meeting additionally intimidating. The board granted the certification without a vote because of these factors.

5) Some unions are opposed to raiding because they believe that raiding weakens the entire union movement. Raids take members away from one union for the sole purpose of strengthening another union. These unions also believe that raiding does not actually increase overall union membership, since the newly unionized workers were already union members, and that organizing efforts should focus on unorganized workers.

6) The “balance of probabilities” is the standard of proof used for cases in civil court.

Using this standard, the argument that is accepted is the one that is most reasonable given the evidence, even if neither case is completely convincing.

“Beyond a reasonable doubt” is the more rigorous standard of proof used for cases in criminal court. The “balance of probabilities” standard is the standard used to adjudicate unfair labour practice complaints, and it requires that there be sufficient evidence to show that the disputed action was probably justified. For example, if an employee was dismissed for poor performance while an organizing campaign was going on, the employer would likely have to show evidence that the employee was given sufficient warning of their performance problems and given the opportunity to correct them, and that these actions were independent from the employee’s involvement in the union.

7) Being represented by a union whose other members were in a different occupation or industry could give an employee the opportunity to belong to a larger and more powerful union. This opportunity would be particularly advantageous for employees in small workplaces or those who work for very large and powerful employers. The main disadvantage would be that the union might not have much understanding of the issues and concerns specific to that employee’s work or workplace. The lack of understanding could cause difficulties in bargaining with the employer because the union might not be able to convincingly respond to the employer’s proposals, or might not recognize which bargaining issues would be worth fighting for. A related disadvantage is that if a small minority of the union’s members are in different occupations or industries than the majority of the union’s members, the “minority” members may have trouble having their issues and concerns adopted as priorities by the union as a whole.

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8) Labour relations boards have a wide range of potential remedies for unfair labour practices because many complaints about unfair labour practices are quite individualized. Complaints can involve different actions, different participants, different contexts, different impacts of the actions, and different requests for resolution or remedy. Because of this wide range of potential variation, labour relations boards need to be able to create a remedy that addresses the circumstances of each individual complaint. However, the one guiding principle that is followed in awarding remedies is that of “make whole”. As much as possible, the remedy should attempt to put the parties in the place they were before the unfair labour practice occurred.

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TEACHING NOTES FOR CHAPTER 6 CASES CASE 6-1 Service Workers’ Union and Happy Coffee This case is based on Service Employees International Union Local 2, Brewery, General & Professional Workers’ Union and 3258205 Nova Scotia Ltd. o/a Second Cup (2013 NSLB 146). Decision date November 26, 2013.

The board ordered that the disputed ballot be counted, and as a result of the vote, issued the certification order. It also upheld the unfair labour practice complaint, and in lieu of ordering reinstatement of the dismissed employee, awarded the employee the equivalent of two weeks’ pay at 20 hours of work per week.

The board determined that the schedule mix-up on June 2 was a result of honest mistakes, and noted that when Harding was notified by Morrow that he was not sure if another employee would be working, she did not confirm the other employee’s availability. The board also stated that Harding did not provide any evidence to prove that the cafe’s business on June 2 was hurt as a result of the understaffing.

The board stated that Harding had clearly demonstrated anti-union animus through her statements in the letter to the employees and in the conversations with individual employees. In that context, the board said, Wagner’s firing could have the effect of intimidating the other employees and creating the impression that their jobs might also be at risk.

The board also stated that if the incident involving the coupons was part of the reason why Wagner had been fired, that should have been mentioned in Harding’s email of dismissal.

Suggested Discussion Questions for Case 6-1 1) If an employee has to be disciplined or fired for performance-related reasons during an organizing campaign, how should this process be managed in order to reduce the chances of an unfair labour practice complaint?

2) What might a labour relations board look at in deciding on an award to an employee fired because of employer anti-union animus?

3) If you were the labour relations board in this case, what would you decide?

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CASE 6-2 Meter Services and Trades Union This case is based on Olameter Inc. and Canadian Office and Professional Employees Union, Local 387 (BC Labour Relations Board case number B3/2014). Decision date January 6, 2014.

The board found that Lyons was dismissed, in part, because of anti-union animus, and that the employer had not proved that there was just cause to dismiss Lyons. The board ruled that Lyons should be reinstated, with back pay as requested by the union, and that copies of its decision be posted at the employers’ stations.

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There were discrepancies between how Lyons and Foley defined the coding categories of P1 and P2. However, since Foley said he could not clearly recall how he defined the categories in response to the questions at the safety meeting, it could not be concluded that Lyons was lying about what Foley told him.

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Lyons’ testimony was consistent in reporting what Foley had told him regarding the coding, while Foley’s recollections were unclear and incomplete.

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The testimony from the employer’s witnesses was consistent in stating that there were unwritten rules in effect about certain coding practices. This supported Lyons’ position that he was coding the meters at the townhouses in accordance with an unwritten rule.

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The emails that Lyons sent after his termination supported Carlisle’s testimony that Lyons was upset and distraught by his termination. The board did not interpret them as a confession of guilt.

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Lyons was terminated because of his coding on one route on one day. The board thus assumed that the employer had no problems with Lyons’ previous coding, and that because of that, the employer should have talked to Lyons and asked him to explain his coding on this particular occasion. The employer should have instructed Carlisle to meet with Lyons for this purpose, rather than ordering Carlisle to arrange a meeting with Lyons to terminate his employment.

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The coding in question was the first time that Lyons had worked this particular route, which made it all the more important that the employer should have asked him to explain his coding, rather than terminating his employment.

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There was also evidence to indicate that other meter readers had coded the meters on the route differently than Lyons had, but the employer did not present any evidence to indicate which coding was correct, or whether any other meter readers on the same route had been disciplined for inaccurate coding.

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There was no evidence presented by the employer to indicate that Lyons had deliberately miscoded the route for “personal gain”. Lyons had recorded the same information on the data from his hand-held device and on the paper records he submitted. The number of P2 codes made by Lyons was the highest number of P2s for that route in the evidence submitted by the employer, but there was no “objective or subjective evidence” that Lyons had deliberately coded this way to dishonestly obtain a benefit. Thus, there was no reasonable relationship between Lyons’ conduct and the penalty he received for it.

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The board admitted that there was no direct evidence that Lyons was dismissed because of anti-union animus. However, the employer was aware of the union organizing campaign, and that Carlisle could have inferred from Lyons’ remarks to him about the benefits of union membership that Lyons was a union supporter.

The board found it “more probable than not” that Carlisle had conveyed this information to Wilson, and that this information had influenced Wilson’s decision to terminate Lyons’ employment.

Suggested Discussion Questions for Case 6-2 1) What sort of evidence would a labour relations board expect to support a complaint of anti-union animus motivating an employer’s actions?

2) When unions file complaints involving the motivation behind an employer’s actions, the onus is on the employer to prove their actions were justified and reasonable. Is this onus fair to the employer?

3) Generally employers are expected to notify an employee of unacceptable performance, and to give the employee the opportunity to improve their performance. Are there ever circumstances where an employee’s performance is so unacceptable that their employment should be terminated as soon as possible? If so, how should an employer justify that decision if it occurs during a union organizing campaign?

4) If you were the labour relations board in this case, what would you decide?

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 6 TOPICS Raiding Suggestions from a firm specializing in union public relations on how unions experiencing a raid should frame their public communications on the issue. http://www.unioncommunications.ca/raid.html A discussion of raiding and its implications, from the National Union of Public and General Employees. http://www.nupge.ca/content/3825/questions-and-answers-regarding-nupge-srelationship-clc Case Involving Time Bars A decision of the B.C. Labour Relations Board, dated April 17, 2002, involving the United Food and Commercial Workers International Union, Local 1518, and 7-Eleven Canada Inc. http://www.lrb.bc.ca/decisions/B130$2002.pdf Case Involving Unfair Labour Practices Summary of a decision of a case involving the Union of Canadian Correctional Officers and Corrections Canada. A link to the full text of the decision is on the site as well. http://www.pslrb-crtfp.gc.ca/decisions/summaries/1263_e.asp

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CHAPTER 7 Defining and Commencing Collective Bargaining LECTURE NOTES

Chapter 7 Objectives At the end of this chapter, you should be able to: • Describe how certification changes the relationship between employees and employers • Identify exemptions to the effects of certification • Name the participants on the union and management bargaining teams • Understand different kinds of bargaining structures and how a bargaining structure is determined • Describe the process by which bargaining teams arrive at their list of desired outcomes • Identify practices that are considered bargaining in good faith

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The Effects of Certification • When a certification order is issued, certain sections of the labour code become applicable to the workplace - these sections are designed to ensure that the union has sufficient resources to represent all members of the bargaining unit •

These sections are usually addressed by union security clauses − The clauses are contained in contractual terms between the union and employer and authorized by legislation

Examples of union security clauses: • Dues check-off – allows the union member to direct the employer to deduct union dues from his or her paycheque.

– All union members pay dues but there are some generally permitted exceptions to dues check-off, e.g., religious exemption - Dues are calculated as standard flat fee or percentage of pay (percentage is more common) - Dues check-off saves union from having to collect directly from every member after every paycheque is issued - Also ensures union receives dues regularly and promptly - Religious exemption (where permitted) can only be applied if employee has some religious objection to belonging to a union in general; does not apply if employee objects to a specific union or to specific union actions

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Employees receiving a religious exemption do not participate in union votes, but are covered by collective agreement An employee receiving a religious exemption directs the amount they would have paid in union dues to a registered charity mutually agreed upon by the employee and the union.

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The Rand formula − based on the principle that not all employees may wish to join the union, but all benefit from the union contract - Because all employees benefit from union’s negotiation of contract, all employees must pay union dues, but don’t have to join the union - Can be used to replace religious exemption in jurisdictions that do not have one

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Closed shop or union shop − new employees, as a condition of employment, must agree to join the union and to pay dues - This provision ensures that employers cannot reduce union membership by hiring employees who will not join the union - Variation on this occurs in skilled trades and construction employment where prospective employees must already belong to union before being hired

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Hiring hall − In some occupations (e.g. skilled trades and construction) workers are hired through the union − Employers contact union who then posts job openings − “Hall” can be permanent posting site at union office or on union website, or can be scheduled meeting attended by job seekers − Union can also maintain list of qualified members and fill job requests on the basis of seniority or specialized skills − This format protects union security in occupations where employment relationships are flexible and change frequently

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Union provisions to expel members − the employer is compelled to discharge workers who have been expelled from the union − This reinforces expectation that all workers in bargaining unit be union members in good standing − Expelling members is an extreme action because it could result in a former member being unable to gain future employment - Expelling usually only done as last resort when other disciplinary measures have failed - Either union executive or vote of membership can expel member - Reasons for expelling e.g., member did not pay dues or did work of another member who was on strike or locked out

Once a certification order is issued, both the union and the employer are compelled to commence collective bargaining - Neither party can refuse to acknowledge other’s role as bargaining representative or refuse to participate in bargaining − −

Individual employees can no longer bargain individually with the employer The employer can no longer bargain individually with employees ▪ An employer who does attempt this may be breaching expectation of bargaining in good faith (discussed later in chapter)

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The Framework for Collective Bargaining The Structure of Collective Bargaining • “Structure” refers to the number of unions, employers, workplaces, or industries represented in a particular collective bargaining situation - Structure can be simple or complex - Degree of complexity depends on how many workplaces, business establishments, bargaining units, unions, and employers are involved in bargaining •

The simplest and most common bargaining structure is “single unit-single employer,” but more complex structures are possible - Individual units can bargain with single employer that has multiple locations - Multiple units can bargain with single employer - Multiple units can bargain with multiple employers

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The bargaining structure is usually determined by the certification order. − Guidelines for bargaining structure may also be contained in legislation, especially in the public sector − Legislation governing public sector outlines which part of government is considered employer and/or which part will act on behalf of employer in negotiations

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Groups of employers or unions may bargain as a single entity − this helps employers avoid pattern bargaining or whipsawing, where a union uses an agreement with one employer to pressure others - Employers may wish to bargain as a group if they feel their interests would be better served in that structure - Whipsawing was used extensively by unions in past bargaining in the U.S. auto industry - It is less common now because of changes in different companies’ abilities to pay the requested wages - Whipsawing has re-emerged as an employer tactic in auto industry, with employer threats to move jobs outside country because of North American Free Trade Agreement

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Pattern bargaining was used by both unions and employers in 2006 Canadian auto industry negotiations Unions may choose to bargain as a group if they feel they can exert more pressure on the employer that way; in this structure, if one union goes on strike, others will respect picket lines and entire organization will shut down However, multiple-union/single-employer structure is efficient because employer does not have to bargain common issues with each union separately

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Employers wishing to bargain as a group must apply to the labour relations board for certification as an employers’ council. − The process that leads to recognition is known as accreditation − Employers applying for accreditation don’t need representation vote; participation in application is considered sufficient evidence of support − If employers decide to bargain individually they must apply to have accreditation cancelled

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Unions may bargain together as a group known as a bargaining council − no formal recognition from a labour relations board is required

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Most collective bargaining is conducted by two teams of negotiators, one team representing the union and the other representing the employer

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Union team members: - Rank-and-file members - Included because they have knowledge of workplace-level issues and because their presence gives team credibility with union membership - If there is a parent union, regional or national representative; - -representatives included because they usually have negotiation experience and because they will be aware of what other locals have negotiated - Professional negotiators, especially in large sets of negotiations - included because of their ability to help develop strategy and tactics - Experts such as economists and researchers

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included because they can provide information to support union proposals

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Employer team members: - Executives who regularly deal with union, e.g., human resources director - included because they have knowledge of workplace necessary to bargain an appropriate collective agreement - Financial officer - included because they know employer’s financial situation and will ensure that management team does not make a financial offer they cannot fulfill - Representative of the parent organization if there is one - included for similar reasons as union regional or national representative - Professional negotiators and researchers - included for same reasons as on union team

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If bargaining structure involves a bargaining council or employers’ council, bargaining team(s) usually include a representative from each union or employer on the council - Included to give information on how proposals would affect individual council members - Avoids problem of negotiated agreement that is not appropriate for some or all council members

What Can the Participants Bargain For? • The most commonly addressed bargaining issues are wages, benefits, working hours, procedures for hiring and promotions, and working conditions •

Theoretically, no issues are off limits in collective bargaining. However, many collective agreements contain a management rights clause − This clause gives management the right to establish procedures or policies governing any issue not addressed in the collective agreement − This means that if a collective agreement contains a management rights clause, agreement is not absolute authority on how workplace is to be operated −

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The Framework for Collective Bargaining Some legislative guidelines: • Collective agreements must meet minimum terms – in most jurisdictions, one year - This is so employers and unions do not have to commence bargaining for a new agreement immediately after concluding the previous one, which would be very time-consuming •

Agreements cannot contain provisions inferior to the minimum conditions specified in the relevant employment standards act - E.g., a collective agreement could not specify a wage lower than minimum wage, even if both parties accepted that - This is because employment standards apply to all workplaces, unionized and non-unionized

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Agreements cannot discriminate - “Discrimination” as defined in relevant human rights act

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Agreements are generally required to contain a grievance procedure − most labour relations legislation includes a template for a grievance procedure that applies if a collective agreement does not contain a grievance procedure - This is necessary so that disputes during the term of the collective agreement can be resolved

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Preparing to Commence Bargaining Timelines for Collective Bargaining • Most Canadian labour codes specify times by which collective bargaining for a first contract must commence • There are also timelines addressing the start of bargaining when an existing collective agreement is close to expiring - There can be reluctance to start bargaining, especially for first collective agreement - Employers may resent union or be bitter about how certification process unfolded - Union members may be worn out from effort of organizing campaign, or may not have expertise to bargain effectively •

In both situations, the process is initiated by one party issuing a notice to bargain to the other party

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Most codes specify a deadline of when bargaining is expected to begin after a notice to bargain has been issued - If bargaining does not begin by this deadline, party that issued notice to bargain can file a complaint of unfair labour practices with a labour relations board - Party that does not meet deadline may have reasons for doing so, e.g., absence of member of the bargaining team - In this situation, if the other party considers this reason valid, both parties can mutually agree on time to start bargaining - However, if one party continually manufactures excuses not to bargain, an unfair labour practices complaint can be used as means to force that party to appear at the bargaining table

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If a union does not initiate bargaining or does not respond to an employer’s notice to bargain, it may be considered to have abandoned its bargaining rights – could lead to decertification - Discussed in more detail in Ch. 12

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Most jurisdictions permit parties to set deadlines in a collective agreement for when bargaining will begin for next agreement • Deadlines for commencing bargaining range from 10 to 30 days after notice is issued • Legislation also sets deadlines for when bargaining for a new collective agreement must begin if an agreement is already in place − usually within last four months of term of existing agreement

Preparing to Commence Bargaining Setting Bargaining Priorities Before starting to bargain, a team will address two questions: • What outcomes does the team want to achieve?

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Which of these outcomes are the most or least important?

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These questions have to be answered if team is going to bargain effectively A comprehensive list of desired outcomes ensures that all team members agree on bargaining goals and direct their efforts towards those goals A prioritized list of outcomes allows team to act strategically in responding to other team’s offers (the team will know which items can be conceded and which must be obtained) Agreeing on goals and priorities can be challenging - Union team has to balance different needs and wants of diverse group of employees - Management team has to balance desires of stakeholders inside and outside the organization

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Preparing to Commence Bargaining Means of identifying and prioritizing goals: • The union may poll its membership - E.g., can distribute questionnaire and analyze results, or vote on importance of proposed items at membership meetings - Since union members have to approve negotiated agreement, it’s important for bargaining team to know what membership wants so that agreement will be accepted - Bargaining effectiveness is perceived by some as a key determinant of how union members rate union effectiveness; however, some research indicates that members judge union effectiveness on other criteria such as quality of leadership and opportunity to participate in union activities •

The union and management teams may review past negotiations - They will look at what was and what was not accomplished - This will indicate how likely it is that differences on current issuess can be achieved and whether goals that were not previously achieved are still important - Proposals may still be introduced, even if previously rejected, if party believes they are still important

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Union and management teams may examine related collective agreements - What has been agreed to by other industries/occupations/employers?

- Particularly important if there is a parent union or parent organization; neither union or management will want to agree to anything inferior to what has been achieved by other parts of union or organization - This is where pattern bargaining/whipsawing comes in as bargaining tactic

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Union and management teams will examine the record of grievances - Consistent record of grievances concerning a particular part of collective agreement may indicate that part needs to be revisited in negotiations; it may need to be rewritten or clarified - Outcomes of grievances may also indicate how likely it is that certain bargaining goals can be achieved

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Union and management will both look at external environmental conditions – inflation, labour market demographics, economic indicators - Trends such as these may affect outcomes of bargaining - E.g., if there is a predicted oversupply of labour, union may not be able to demand large increases in wages

Preparing to Commence Bargaining • A negotiating team’s perception of what goals are realistic can be influenced by the demographics of the team members - Research indicates that union members who are more dissatisfied than their co-workers turn to union activism as a way to improve job conditions - Thus, union negotiators may be more inclined to prioritize issues that are personally important - Issues of concern to minority groups in unions are usually only considered “important” once the minority group members form a significant part of the union membership, or once the group succeeds in promoting its concerns within the union (possibly on the grounds that the issues affect more than just the group members) - If neither of these conditions is present, minority concerns are not likely to be given priority in bargaining demands •

Decision making in local unions tends to be governed by explicit rules and policies − Members unfamiliar with these rules may be excluded from the decisions affecting bargaining priorities − Newcomers or those who do not participate regularly may not be able to influence bargaining priorities since they do not know procedures that determine these priorities

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The union membership must ratify whatever the union team negotiates and may reject an agreement that does not at least appear to reflect its priorities - Thus, union negotiating team must ensure that priorities reflect the membership’s wishes not their own personal preferences

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Identifying and prioritizing management team goals is more efficient and less formal than the same process for the union team − The management team is not usually accountable to constituents in the same way the union is - Management team will not have to have contract formally ratified by vote of stakeholders - Management team will usually gather information on desired outcomes from groups or individuals it represents, and will also examine previous bargaining experiences or agreements in other organizations - Management may also acquire advance information on union plans through discussion with supervisors or other non-union staff who interact with union members - management may then adjust its priorities based on what it thinks union priorities are

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Both sides will also draw on court decisions and legislative changes before bargaining - Changes in legislation, e.g., eligibility for certain kinds of benefits may mean that agreement has to be rewritten to reflect the new regulatory framework

Preparing to Commence Bargaining Preparing for the Start of Bargaining • Both negotiating teams develop a “laundry list” of proposals - The list includes all items the team wants to bargain for - The list is usually ranked by importance or feasibility •

The teams exchange lists of proposals, but these lists do not indicate priorities

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The lists may also include items that are low priority or are considered unachievable - Why exchange demands that are not serious ones?

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This allows the team to assure stakeholders that “their” items were introduced in bargaining - This is particularly important to union negotiators who have been chosen by membership vote

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In order to have continued support from the union’s members, they need to be perceived as being responsive to membership demands One way to create this perception is to tell members that their demands were presented in negotiations but were dropped when management would not agree to them They can also justify lack of action on members’ items by saying their energy was better used to bargain for items that were achievable

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This allows the team to hide the true priority of individual items from the other side - E.g., union could agree to item of minor importance to them but which could actually be a high priority item for management - Thus, by hiding true priorities, management achieves a desired bargaining outcome with minimal effort - If union was aware that item was a high priority for management, it might not easily agree to it and instead insist e.g., that agreement would only be given on that item in exchange for management agreement on an item of equal priority to union

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The length of the list of proposals can play a strategic role − A lengthy list can intimidate the other team - A lengthy list shows that one side is (theoretically) prepared to address many issues - The prospect of long negotiations may encourage other side to reduce its own number of demands or to rethink its priorities

Preparing to Commence Bargaining Bargaining in Good Faith • Parties are legally required to bargain in good faith •

Bad faith bargaining complaints can be made at any point in the collective bargaining process

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The first significant place in the bargaining process where bargaining in bad faith can occur is before the process even begins

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If one party refuses to start negotiations or to meet at all, that party can be charged with bargaining in bad faith - Expectation of bargaining in good faith underlies the entire bargaining process, including preparation and commencement

Two components to bargaining in good faith: • Parties are expected to enter into honest bargaining - E.g., they must not make offers they are not prepared to commit to, or withhold information that might affect how other party responds to a proposal •

Parties are expected to bargain with the intent of reaching a collective agreement - This does not mean that parties have to agree to every proposal or that there cannot be delays or breaks in the process - What it does mean is that parties should actively work toward achieving an agreement and should not jeopardize process - E.g., they should not make outlandish proposals or skip meetings without good reason

Preparing to Commence Bargaining Bargaining in Good Faith • If one party believes the other party is not bargaining in good faith, it can file a complaint of an unfair labour practice with the labour relations board •

The board will use both objective and subjective criteria to evaluate the complaint - Objective criteria e.g., definitions in labour legislation that would determine whether illegal actions have taken place - Subjective criteria include ethical or moral issues (e.g. was one party justified in withholding information from another party)

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Preparing to Commence Bargaining Bargaining in Good Faith • In most jurisdictions, the following have been identified as bargaining in bad faith: - Outright refusal to bargain - Surface bargaining - i.e., participating in negotiations but having no intent of concluding a collective agreement - Boulwarism - Presenting an initial offer as a final offer without justification or rationale and refusing to negotiate further

Preparing to Commence Bargaining Bargaining in Good Faith • Additional examples of bargaining in bad faith: - Firing or disciplining union members or negotiators for reasons unrelated to their work, or for no reason, during the negotiation process - The employer bargaining directly with employees - Refusing to provide the rationale for a bargaining position - Attempting to reopen negotiation of terms that have already been settled - One exception to this would be if there has been some external or internal change in conditions that requires the terms be revisited

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Preparing to Commence Bargaining Bargaining in Good Faith • The expectation that the parties will bargain in good faith does not require that a collective agreement be reached.

• Parties are not expected to “give in” just to reach an agreement - Parties should be committed to concluding an agreement and actively working toward that goal - Not reaching an agreement is not in and of itself evidence of bargaining in bad faith •

Most labour codes state that once bargaining begins, workplace terms and conditions are under a freeze − This includes terms of any expired collective agreement − Employer cannot unilaterally change contractual terms during the bargaining process

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Bad faith bargaining complaints can be difficult for labour boards to resolve − For example, it is often difficult to distinguish between a hard line bargaining stance and surface bargaining - If one party rejects the other party’s proposal, it could be because that party genuinely believes the proposal is unreasonable - However, continued rejection could be a way of making negotiations so miserable that other party will concede to proposals it otherwise would have refused, just to end the process

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Labour relations board must sort through evidence – sometimes quite contradictory – to determine what actually happened or what party’s motivation was

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The usual remedy is for the board to state clearly what is and is not “bargaining in good faith” - Principles of collective bargaining suggest that parties should, as much as possible, negotiate freely without third party interference - Labour relations boards do not want to have to actively manage negotiations - However, board also has responsibility of repairing damage to relationship between parties - That repair can sometimes only be achieved by directing or suggesting how parties should act in negotiations − These guidelines may be suggested to the parties even if the board does not uphold the bad faith bargaining complaint - Suggesting guidelines may help avoid future complaints or questionable behaviour

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If necessary, or possible, the board will repair whatever substantive damage was caused by the unfair labour practice − e.g., restoring wages to pre-negotiation levels if a freeze was broken

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If a first collective agreement is being negotiated, most legislation permits a board to impose a collective agreement if the parties are not able to negotiate one themselves. This, however, can lead to problems - Imposing an agreement is not ideal because it takes responsibility for creating the agreement away from the parties - If there are problems with the imposed agreement, the parties may blame the third party rather than trying to resolve the problems - The parties will also not learn how to successfully conclude a collective agreement through bargaining - However, it is important for boards to be able to impose a first agreement - An imposed agreement is sometimes the only way to end bargaining disputes, particularly if parties are inexperienced negotiators - An imposed agreement may also bring into line an employer who is being stubborn in negotiations - If the employer refuses to meet with union or consider union proposals, an imposed agreement bypasses that behaviour and ensures that an agreement is in place - If the employer does not like terms of imposed agreement, this may motivate it to participate more seriously in negotiations the next time around

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS

1. The provision for a minimum term of one year for a collective agreement is to ensure that employers and unions are not continually engaged in bargaining or in preparation for bargaining. In most jurisdictions, bargaining for a new collective agreement must begin within the last few months of the term of the existing collective agreement. If collective agreements had terms of less than one year, preparation for bargaining, or actual bargaining, would have to begin very soon after the conclusion of bargaining for the previous agreement.

Another reason for this requirement is to give the collective agreement a chance to “work” in the workplace. After a collective agreement has been in effect for a year, both the union and management should be able to tell whether the language in the collective agreement has the effects that the parties intended, and whether there are situations in the workplace that are not being addressed by the collective agreement.

Any length of time less than a year might not be long enough to demonstrate these qualities of the collective agreement.

2. As mentioned in the chapter, one of the principles of collective bargaining is that the two parties should be able to bargain freely, without the interference of third parties.

Legislation that intervened more directly in the collective bargaining process would violate this principle. The parties should be free to choose how the bargaining process will work and which items they will bargain about, and then independently arrive at a mutually acceptable collective agreement. However, legislation does establish procedures that allow for intervention in the bargaining process if one of the parties feels that the process is not functioning fairly. These procedures include the ability for the parties to file complaints about bargaining in bad faith, and the ability of labour relations boards to impose a first collective agreement if the parties cannot conclude one themselves.

3. The union bargaining team usually includes members of the union executive and rank-and-file union members. These individuals know, or should know, the membership’s desired bargaining outcomes, as well as the workplace issues that need to be addressed in bargaining. If the local union is part of a parent union, the bargaining team may also include a representative from the parent union. The parent union representative can offer bargaining expertise, and can also ensure that the bargaining team achieves an agreement comparable to those that locals in similar situations have successfully bargained for. If the union is bargaining as part of a bargaining council, the negotiating team will usually include one member from each unit represented by the council. This representation ensures that the negotiated agreement is suitable for all the workplaces it will be applied to. And if the negotiations involve a large union or employer, the union negotiating team may also include professional negotiators or researchers, who bring expertise and supporting information to help develop proposals or strategies.

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On the management side, the management bargaining team usually includes the human resources director, or the manager who deals most directly with the union in day-to-day interactions. A financial officer of the organization may also be part of the team, to ensure that the management negotiating team does not make financial offers that the organization cannot afford. If the organization is part of a larger organization, a representative of the parent organization may also be part of the team, for the same reason that a parent union representative may be present on the union side. If the employer is negotiating as part of an employers’ council, the council will usually include one representative from each employer, similar to the structure of a bargaining council. And, depending on the size of the negotiations, professional negotiators and researchers may also be on the management negotiating team.

4. The requirement for wages and working conditions to be “frozen” during negotiations ensures that the employer does not manipulate these factors as a way of pressuring acceptance of their bargaining demands. If this requirement did not exist, an employer could, for example, present a demand at the bargaining table, reduce wages, and refuse to raise them again until the union negotiators agreed to accept that demand. The ability to do this would give the employer a huge advantage in bargaining, and severely disadvantage the union.

5. Determining whether presenting an offer and then making minimal changes is bargaining in good faith would depend on several factors. Bargaining in good faith requires that the parties bargain honestly and with the intention of concluding a collective agreement.

The employer’s behaviour does not clearly indicate dishonesty. The employer’s initial offer could actually be fairly close to what the employer believes it must settle for. Thus, the employer might feel it is not able to significantly change its position, regardless of the union’s concerns. This is not necessarily bargaining in bad faith, but is more an example of poor bargaining strategy by the employer. The employer’s initial offer could also involve an item that is a bargaining priority, and thus the employer may feel it must not significantly change its offer. A clearer indication of dishonesty would be if the employer actually could make significant changes to the offer but told the union that it could not.

It is also not clear whether the employer’s behaviour violates the expectation of bargaining with the intention of concluding a collective agreement. Being stubborn or obstinate on a single bargaining item does not necessarily mean that the party has no overall desire to settle a collective agreement. However, if this particular instance of behaviour is part of a consistent pattern of behaviour, then the employer may be hindering the progress of finishing a collective agreement – intentionally or otherwise - and thus may be bargaining in bad faith.

6. There are two major reasons why bargaining in good faith is an important issue when bargaining for a first collective agreement. First, the negotiators may be

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relatively inexperienced, and thus bargaining in bad faith may occur because the negotiators are not aware of what constitutes bargaining in bad faith, or do not know how to bargain in good faith. A labour relations board may need to set behavioural guidelines to assist negotiators with these sorts of problems.

Second, employers who resent the presence of a union may bargain in bad faith so as to oppose the union and hinder its effectiveness. The employer may feel it was treated unfairly during the certification process, or may simply resent unions on general principle. Bargaining in bad faith is one way to express these attitudes. In this situation, the ability of labour relations board to impose a first collective agreement is important, as imposing an agreement may be the only way to bypass this sort of employer behaviour in negotiations.

7. Labour relations boards have the power to impose a first collective agreement for two reasons. First, the parties may not have the negotiating skills to successfully reach an agreement on their own. Second, the ability to impose an agreement allows the board to ensure an agreement is established if an employer is reluctant to negotiate or refuses to negotiate.

8. As described in the answer to Question 7, an imposed collective agreement ensures that a collective agreement is in place even if the parties cannot reach one on their own. However, when an agreement is imposed, the parties may not acquire the negotiating experience and skills to successfully conclude an agreement on their own in the future. Additionally, the parties may resent having an agreement imposed on them, which may lead to the parties not being fully committed to implementing the agreement or supporting its terms and conditions.

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TEACHING NOTES FOR CHAPTER 7 CASES CASE 7-1 Journalists Union and Overseas News This case is based on Communications, Energy and Paperworkers Union of Canada, Local 87-M, Southern Ontario Newspaper Guild v. Ming Pao Newspapers (Canada) Ltd., Ontario Labour Relations Board 2233-11-FC. Decision date December 2, 2011.

The board directed that the parties’ first collective agreement be settled by arbitration.

The board identified two criteria which it felt needed to be considered to determine whether a first collective agreement should be imposed. The board noted that there were no mandatory standards that had to be met for the board to impose a first collective agreement.

The two criteria identified by the board were: - Whether it appeared that the process of collective bargaining has been unsuccessful.

The board noted that there were no mandatory number of negotiation meetings that had to take place for it to find that bargaining was unsuccessful. The board stated that the parties had bargained for nine months, had used third-party assistance (the conciliator), that proposals had been exchanged and discussed, that job action (the strike) had been undertaken, and that the parties were still at an impasse over several issues. The board thus determined that bargaining had not succeeded.

- What appeared to have caused collective bargaining to be unsuccessful.

The board attributed the lack of success in bargaining to the employer’s “refusal to recognize the bargaining authority of the trade union”. It cited the employer’s refusal to bargain over wages, the layoffs of the outside salespeople, the transfer of work from the outside sales department to the inside sales department, and the notification of wage increases just before the certification vote as evidence of this refusal.

Suggested Discussion Questions for Case 7-1 1) In your opinion, what kinds of evidence would demonstrate that the process of collective bargaining is not succeeding?

2) During collective bargaining, is it reasonable for a union or an employer to refuse to consider a proposal until a proposal on another issue is presented? Why or why not?

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3) Should a third party brought in to assist with collective bargaining withdraw from the proceedings if only one of the parties requests this? Why or why not?

4) If you were the labour relations board in this case, what would you decide?

CASE 7-2 City Workers Union and Town of Smallville This case is based on Canadian Union of Public Employees, Local 1881, v. Town of Kamsack, Saskatchewan Labour Relations Board file no. 136-11. Decision date December 15, 2011.

The majority of the three-member panel hearing the case dismissed the complaint. The third member of the panel filed a dissenting opinion.

The majority’s reasons for dismissing the complaint were: -

-

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Both parties had made proposals around the issue of job descriptions, which made the issue a subject for negotiations.

Neither party intended the job descriptions themselves to be part of the negotiations. The disagreement in bargaining was over the process by which the job descriptions were to be finalized, and how much control the union and the town would each have over the process.

It was clear that the town was frustrated over the lack of progress on resolving the job descriptions. However, the town had previously agreed to a process for developing the descriptions, and had also agreed to develop draft descriptions to be reviewed and approved by the union. This indicated that the town was willing to cooperate with the union on the issue.

The town’s actions were intended to make progress on the job descriptions issue, and the proposal of a one-year contract with a 2% wage increase made it clear that negotiations over the job descriptions would continue even if that contract was agreed to.

The majority decision stated that the town and the union were the parties with the most knowledge of how to reach a solution on the job descriptions issue. Therefore, he board did not offer any advice on a solution or on how to proceed with further negotiations.

The dissenting opinion stated that: -

The town’s proposal on job descriptions was not a logical extension of the issues that had earlier been presented and negotiated.

The proposed job descriptions were “sweeping” and “very contentious” (p. 11) and were presented as non-negotiable.

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The content of the job descriptions was troubling because it included attributes that were more suited to a performance evaluation rather than a job description.

The inclusion of a new promotion process in the job descriptions proposal made it difficult to view the proposal as “non-negotiable”, since the proposed process was different from the one outlined in the current collective agreement.

Given the lack of progress in the negotiations, the town should have known that a final offer involving a shorter than usual contract term would not be ratified by the membership.

The dissenting opinion supported the request to order the town to remove the job descriptions proposal from the bargaining process. This, in the dissenting member’s view, would return the parties to the point in bargaining where they had reached agreement on several issues. The parties could then proceed to resolve the remaining issues.

Suggested Discussion Questions for Case 7-2 1) Labour relations boards and governments are generally reluctant to direct or to enter into collective bargaining processes. What evidence do you think would indicate when such direction or involvement would be justified?

2) The union argues that the employer’s job descriptions proposal had the effect of moving negotiations backwards rather than forwards. How would you recommend that new proposals be introduced in bargaining so as to encourage progress toward an agreement?

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 7 TOPICS A “union glossary” maintained by the Canadian branch of the International Association of Machinists and Aerospace Workers. Includes some of the terms used in this chapter. http://district140.iamaw.ca/?page_id=170 A “union glossary” maintained by the Saskatoon and District Labour Council. Includes some of the terms used in this chapter. http://www.saskatoondlc.ca/glossary An example of a webpage to keep the union membership informed during negotiations, from the Carleton University Academic Staff Association. http://www.cuasa.ca/bargaining/ The central information site for negotiations involving the Public Sector Alliance of Canada. Contains links to several documents on preparing for negotiations and links to reports and other supplemental information that can be used to prepare bargaining proposals. http://psacunion.ca/topics/bargaining Bargaining information page for the Yukon Employees Union. Contains information on how members can submit suggestions for issues to be raised in negotiations. http://yeu.ca/for-members/bargaining-give-your-input/

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CHAPTER 8 The Collective Bargaining Process LECTURE NOTES

Chapter 8 Objectives At the end of this chapter, you should be able to: • Define the stages that negotiations go through • Describe the subprocesses that occur within negotiation stages • Understand how each side in negotiations acquires bargaining power • Outline alternative models for union-management negotiations

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The Collective Bargaining Process Union-management negotiations usually proceed through specific stages: • The pre-negotiation stage • The stage of establishing the negotiating range • The stage of narrowing the negotiating range • The crisis stage • The ratification stage Will outline the basic process of negotiation and then discuss each stage and the sub-processes that may occur in each stage

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How Do Negotiations Work?

- As discussed in Ch. 7, the negotiation process formally begins when one side issues a notice to bargain to the other side - Legislation specifies a deadline by which negotiations must begin once notice has been issued - Parties must agree on when to have first bargaining meeting • • • •

At the first joint bargaining meeting, the teams exchange written proposals and demands, and decide when the next joint meeting will be Each negotiating team then holds its own private meetings to formulate a response At the second and subsequent joint meetings, each team makes counterproposals and uses a variety of strategies and tactics to uncover the other team’s goals and priorities These meetings continue until an agreement is reached or an impasse is declared

How Do Negotiations Work?

• When an agreement is reached, each team must go to its constituency or stakeholders and obtain their approval •

But parties may reach an impasse where they do not believe they can settle on a mutually acceptable agreement

•

If an impasse is declared one party may:

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Take a short break Ask for third-party intervention Undertake a strike or lockout • Each of these actions is intended to make the other party return to the bargaining table so an agreement can be concluded

Process of negotiation described above sounds straightforward - But it can unfold over varied periods of time and with varying degrees of cooperation or conflict •

Studies have noted a remarkable similarity in the stages that most negotiations go through - The sequence of stages happens despite the range of variations in each individual process (e.g. different participants, different issues, different stakeholders) -

•

First is the pre-negotiation stage in which bargaining priorities are prepared by the parties before negotiations begin Actual negotiations take place within three stages: - establishing the negotiating range - narrowing the bargaining range - crisis Not always possible to clearly define when one stage ends and next one begins But it is important that negotiations proceed through all these stages

Aborting or short-circuiting any of these stages can cause the process to end abruptly or to fail to produce an agreement

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Stages of Union-Management Negotiations Pre-negotiation Stage • Each side determines its priorities, goals and proposals for the upcoming negotiations.

- Some proposals are considered essential, while others may be traded or “dropped off the table” once negotiations have begun - Other proposals may be put forward as a way to introduce issues that may be important in the future - Parties develop this information by collecting information and developing “laundry lists” (as discussed in Ch. 7) - A long and inclusive list disguises each side’s actual priorities - A long and inclusive list also enhances each side’s relationship with its own constituents by demonstrating that their negotiating team has heard and responded to their concerns •

It is common for the two sides to meet jointly during this stage to sound each other out informally on negotiating protocol and procedures - It is also an efficient way to agree on these issues before negotiations start, so that actual negotiation time is not wasted on non-bargaining questions

Establishing the Negotiating Range • This stage typically begins at the first formal bargaining session.

• Both parties introduce their bargaining team members and present their proposals

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Usually, the chief negotiator for each side orally presents the rationale for each proposal to the other side - These presentations are vigorous, spirited and sometimes aggressive - Emotional and/or extreme rhetoric may be used, but chief negotiators usually have a professional relationship with each other and are not personally offended by each other’s remarks

-While these are usually forceful presentations, experienced negotiators know that bargaining will not proceed smoothly if the negotiators alienate each other at the first meeting Purposes of oral presentations: • Establish the bargaining range - Identifying the issues of importance and stating what each side intends to achieve on each issue - Usually, chief negotiator outlines the issue and attaches an offer to the issue - Offers are initial offers and do not represent what union or employer is actually willing to settle for •

Demonstrate each side’s degree of commitment - Spirited presentation indicates that union or employer is serious about its proposal and willing to work to achieve desired outcomes

•

Provide an opportunity for each side to explain the reasoning behind its proposals and thereby influence the perceptions and expectations of the other side - Giving background for each proposal helps other side understand why proposal was made and why it should be adopted - Background also helps other side develop counter-proposals, because to be successful these must address reasoning used to support original proposal

Narrowing the Bargaining Range • The zone of agreement dictates each side’s decisions in narrowing the bargaining range and, ultimately, whether the parties reach an agreement

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If it is well prepared, each team enters negotiations with an initial offer and a bottom line position for each proposed item - Initial offer = first proposal given to the other side - Usually the team’s most optimistic outcome for that item - Offer may be outlandish, but there is always a chance that other side will accept it - Bottom line = absolute minimum the team would be willing to accept

- Initial offers are usually far apart, which should inspire negotiators to consider offers that are more realistic and possibly mutually acceptable •

During this stage, both sides start to move from their original positions in an attempt to find a point where a mutually satisfactory resolution can be reached - E.g., mutually agreeable wage levels cannot exceed maximum of what employer is willing to pay, and cannot drop below what union is willing to accept

Narrowing the Bargaining Range • Terms that do not meet the other side’s bottom line will not be accepted • If there is no zone of agreement, either there will be no settlement or each team will have to adjust its bottom line - Bargaining teams are usually not authorized by their constituencies to accept anything below their predetermined minimum - Adjustment to bottom line should be based on what one side perceives the other side would be willing to accept in order to achieve an agreement • •

The timing of counter-proposals and concessions is crucial during this stage Both sides must exhaust their arguments for their own positions - Concessions = deciding to agree to the other side’s position or adjusting one’s own position - It is only when arguments have been fully exhausted that any movement from a position becomes likely

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•

Each side will likely want to meet privately to make sure that each team member supports a change in position or a counter-proposal before it is presented Thus there is much back-and-forth discussion and many private meetings

This is often the longest of all the bargaining stages - Extensive debate, exchange of counter-proposals, concessions, and agreement on mutually acceptable positions - These continue issue by issue until crisis stage is reached

The Crisis Stage • During the crisis stage, one or both sides must decide whether to settle or to use economic pressure such as a strike or lockout •

This decision can be triggered by disputes over a single issue or over a “package” deal involving several interrelated items - By this stage, there has been extensive argument, and tensions have increased - Hard and difficult decisions have to be made - Rise in tension level is usually indication that crisis stage has been reached - A strike or lockout is used in hopes of placing such a heavy financial burden on other side that they will eventually concede to bargaining demands

•

This stage can be short or lengthy, depending on the strength of the parties’ resolve and their resources - However, once desired concessions occur, both sides settle on terms and conditions of collective agreement and recommend its acceptance to members or stakeholders

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Ratification • Ratification of the tentative agreement by both sides is necessary once terms are agreed upon. The teams return to their constituencies and present the negotiated terms for approval - For management team, their job is to satisfy diverse interests within the organization (e.g., finance, marketing, production) -

Management team also should not have negotiated terms that make organization less efficient or less productive For union team, they must show they have satisfied specific and legitimate needs of bargaining unit members (usually e.g., job security, workplace equity) and must assure members that agreement addresses these issues

•

The union will generally conduct a ratification vote of the membership, and management will review the agreement with all relevant stakeholders

•

Negotiated terms must be accepted by all the employers or unions represented in a multiple-employer or multiple-union structure - If employers have bargained as a group, each individual employer must accept terms - If unions have bargained as a group, each union involved in the negotiations must conduct its own ratification vote

•

If one side rejects the proposed agreement, the parties must return to the table for further bargaining - They must create a new agreement that is acceptable to all constituencies - Will usually try to determine what in agreement led to its rejection and renegotiate those items Once the agreement is ratified, representatives from both sides sign it to bring it into legal effect

•

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Negotiation Stages and Negotiation Subprocesses - Within each stage of negotiation there are subprocesses that influence the parties’ behaviour in that stage R.E. Walton and R.B. McKersie’s framework identifies four negotiation subprocesses: •

Intra-organizational bargaining – each side’s negotiators seek to achieve consensus within their bargaining team and within their organization - Bargaining teams have to prioritize various conflicting demands - Doing this can cause conflict within the bargaining team and within the organization, because it means giving more attention to some items than others - Team or organization members may not agree on choices of primary bargaining goals - Intra-organizational bargaining is subprocess through which team achieves its own consensus on priorities, and obtains the organization’s support for its decisions

•

Attitudinal structuring – each side forms attitudes toward the other side and toward the relationship between the teams - This process can result in positive attitudes if one side perceives that other side is receptive to its proposals and that bargaining will be fast and cooperative - But it can also result in negative attitudes if one side perceives other side to be hostile - Factors affecting which of these outcomes occurs include each side’s knowledge of or experience with other side, each team’s perception of difficulty of negotiating issues, and any previous bargaining history - This process also includes adjustment of perceptions that have already been formed - E.g., if one team member shares new information about other team, that information can alter attitudes of all team members - Thus process affects not only basic relationship between teams but also degree of trust teams feel toward each other

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Results of this process can have significant effect on subsequent success of bargaining

•

Integrative bargaining – the two sides try to resolve some of the issues by identifying common interests in search of “win-win” solutions - Parties focus on what they have in common, rather than on issues on which they differ - Teams will attempt to identify items appropriate for integrative bargaining before negotiations begin - This helps teams enter bargaining cooperatively rather than with an attitude of conflict - Also gives teams a proactive problem-solving perspective on entire bargaining process

•

Distributive bargaining – the two sides compete with one another over the division of limited resources − produces “win-lose” solutions - If one team feels it cannot compromise its desired outcomes for certain items, distributive bargaining may be the only way those items are resolved

Negotiation Stages and Negotiation Subprocesses Different sub-processes become apparent during different stages of negotiations: • Intra-organizational and attitudinal structuring most obvious during establishing and narrowing the bargaining range - Presentation and discussion of proposals affects each side’s perception of, attitudes toward, and expectations of other side •

Integrative and distributive bargaining more obvious during the narrowing of the bargaining range − Narrowing involves determining which issues can be settled integratively and which must be settled distributively

•

In the crisis stage, the distributive bargaining sub-process becomes more apparent - Parties need to move toward settlement of collective agreement

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Ratification stage is the closure stage where each side’s members or constituents have a say or participate in a formal vote on the new collective agreement

Negotiation Stages and Negotiation Subprocesses The intra-organizational bargaining subprocess • Involves the internal relationships that exist within each organization − Thus it is distinct from the other three sub-processes, which involve external relationships between the union and management - It is through this process that each team reaches internal agreement on bargaining priorities and strategies - Takes place prior to and sometimes during bargaining, although wellprepared teams attempt to reach internal agreement prior to the start of bargaining Two main types of internal conflict appear during this subprocess: • Role conflict – occurs because of conflicting expectations of each side’s negotiator - Negotiator is expected to use all available strategies and tactics to achieve bargaining outcomes - However, negotiator is also expected to respond to other side’s negotiator in a way that does not jeopardize their relationship and the bargaining process - Thus, negotiators have an internal leadership role and an external relationship role - These roles may cause conflict because the behaviours required by each may not be easy to reconcile - E.g., if negotiator is respectful toward other negotiator, members of bargaining team may be upset because they feel negotiator should be aggressive and forceful •

Factional conflict – develops within an organization when different groups have conflicting demands − Results in disagreement within the organization over bargaining goals and priorities - Different constituencies have different ideas about which issues should receive priority in bargaining

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• • • •

Negotiators can use a variety of strategies and tactics to manage role and factional conflict Role and factional conflict can arise at any time during the bargaining process Strategies in Table 8-2 can be used during or after pre-negotiation stage These strategies are intended to align the expectations of organization members with the achievements of negotiators

Negotiation Stages and Negotiation Subprocesses The Attitudinal Structuring Subprocess • One of the defining characteristics of the negotiation process is the long-term relationship between the parties - Exists before bargaining starts and will continue to exist after bargaining ends - Parties not only participate in bargaining but also in daily interaction in the workplace, and in other processes e.g., grievance resolution - Thus, quality of interpersonal relationship affects how each side approaches negotiations as well as how collective agreement is administered - Attitudinal structuring is part of larger process that establishes relationship patterns shaping each side’s negotiation behaviour •

Prior to the start of negotiations, the relationship between the parties includes the following characteristics: - Each side’s motivation to be competitive or cooperative with the other side - Each side’s attitudes and beliefs about the legitimacy of the other side’s organization and leadership - The level of trust each side has in the other - Each side’s feelings of friendliness or hostility toward the other

Ideally, negotiations will be conducted in an atmosphere of trust, respect and openness - This positive atmosphere should continue during administration of collective agreement once negotiations conclude - Attitudinal structuring can assist in creating positive atmosphere by confirming and/or changing each side’s beliefs and perceptions of other side

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Negotiation Stages and Negotiation Subprocesses The Integrative Bargaining Subprocess • The integrative bargaining subprocess deals with mutual problem solving, while the distributive bargaining process deals with more contentious issues -

Use of integrative bargaining lets both sides “win” since both sides are concerned with finding solutions to the problems

•

Integrative bargaining is often one of the elements of a “fostering strategy” − This strategy is used to develop cooperation between the parties and that ultimately may create a better overall relationship and facilitate other parts of the bargaining process - Integrative bargaining creates a cooperative atmosphere by emphasizing shared interests in reaching solutions to problems

•

Problems that can be solved through integrative bargaining are often addressed before the distributive issues are negotiated - This is done in the hopes that cooperation generated from integrated bargaining will carry over into discussion of more contentious issues

•

Integrative bargaining can still be a difficult process, as the two sides may differ on how to divide the overall gain equitably - In order for each side to realize gains, parties have to decide how to divide overall gain - They may not agree on what constitutes an equitable division - In this sense integrative bargaining becomes distributive since the parties must address issues like equity and reach a decision - Success of integrative bargaining in solving problems can be blocked by either side’s inability or unwillingness to agree to distributive solutions

•

Strategies and tactics to resolve disputes during integrative bargaining are outlined in Table 8-4 Success of integrative bargaining may depend on how well chief negotiators handle distinct and concurrent requirements of integrative and distributive bargaining

•

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Negotiation Stages and Negotiation Sub-Processes The Distributive Bargaining Sub-process • This is the most highly visible negotiation sub-process and the one most often associated with union-management negotiations •

During this sub-process, both sides are involved in a fundamental conflict over the allocation of a fixed amount of resources

•

Process is essentially adversarial in nature - Each side is committed to achieving maximum gain for itself

•

Distributive bargaining strategies are commonly used when wage and benefit issues are being negotiated - Unions want to maximize wages and benefits for members - Management wants to minimize production and operating costs - These goals are in opposition and therefore a gain for one party means a loss for the other

•

Each side strives to present whatever information might persuade the other side to agree to its demands - Each party collects and distributes information in a way that benefits itself while not empowering the other side

•

Goals, priorities and demands that are usually the basis of distributive bargaining are central issues in most labour-management negotiations and in ongoing relationship between the parties

•

Determination of outcome of distributive bargaining (i.e., who wins) involves the use of bargaining power

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The Role of Bargaining Power in Union-Management Negotiations • The classic definition of bargaining power is the ability of one side to get the other side to agree to its terms - Can’t always precisely measure amount of power each side holds in negotiations - Amount of power held by each side will vary depending on a number of factors, some of which may be unique to issues being negotiated or to the parties themselves •

Environmental, socio-demographic, and organizational factors can affect both parties’ bargaining power - Environmental e.g., public opinion, legislation, the economy - Socio-demographic e.g., diversity of bargaining priorities among negotiators and their constituencies (more unity = more power) - Organizational e.g., intra-organizational dynamics of union and management (each usually knows about any internal disputes the other is experiencing and can exploit these to gain power)

•

Factors affecting the employer’s bargaining power : - the size of its inventory (E.g., large inventory would increase employer’s power because employer could continue production during a strike or lockout) − the structure of its operation − its competitiveness − whether the business is seasonal − whether it can operate during a strike − its labour costs

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Factors affecting the union’s bargaining power : − The strength of its commitment to specific issues − Having extra strike funds − The timing and effectiveness of a possible strike - E.g., access to extra strike funds would increase union’s power because union could resist the pressure of a lockout by employer

•

However, union-management negotiations are not just a clash of differing amounts of bargaining power − Integrative bargaining is an important part of the process - Integrative bargaining does not require one side or the other to exercise bargaining power to achieve their outcomes - distributive bargaining requires the use of power and is more common and more visible form of bargaining in most negotiations

•

The use of distributive bargaining can have damaging long-term effects on the relationship between the parties - One party ends up failing to achieve its outcomes - Resulting resentment may spill over long after negotiations have ended - Distributive bargaining is commonly used but is not the most positive nor always the most effective way of resolving bargaining disputes

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Two Alternative Models of Union-Management Negotiations - Strategies and processes previously described do not always produce positive relationships - Negotiation is a process of introducing changes, and change generates conflict - Conflict generated in negotiations can spill over into workplace and generate more conflict or worsens conflicts that previously existed - Historical, institutional and economic realities work against achieving a positive union-management relationship - This relationship is usually adversarial because union and management have differing goals, and because society accepts conflict as a way of resolving disputes (a lack of conflict may be perceived as an indication that bargaining is not being pursued with adequate commitment) - Two alternative models attempt to emphasize cooperation rather than confrontation in bargaining •

The cost of disputes model focuses on the interaction among the bargaining power, the interests, and the rights of each side, and how this interaction affects the costs associated with negotiating disputes

•

Interests are the needs, wants, fears, concerns, desires, or other motivators that underlie a position, or the preferred outcome, of one side

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Rights are formal powers granted to the parties − These come from through legislation, existing collective agreements, or in arbitral jurisprudence (previous legal decisions) Cost of disputes model outlines how interests, rights, and power interrelate during bargaining •

The parties’ differing interests are reconciled within the context of each side’s rights and bargaining power - The party with more rights may be able e.g., to dominate decisions on processes and outcomes - However, determination of rights takes place within context of power, and the party with more power may be able to dominate the party with more rights - Also, at any given point, context of negotiations may change to give more weight to interests, rights, or power of one or both sides - Cost of disputes model proposes that in order to assess how the interest/rights/power interaction has affected the outcome of bargaining, we should analyze bargaining in terms of costs incurred by the parties

•

There are four criteria to consider in evaluating the amount of the costs: - Transaction costs – include expenditures of time, money, resources, emotional energy, and lost opportunities, e.g., the costs of striking, locking out, or attempting to operate during a strike - Satisfaction with the outcome o Depends upon how well the ultimate resolution fulfills each side’s underlying interests - Unsatisfactory outcome will incur costs because it will be inefficient and will cause frustration to the parties - Long-term effect of bargaining on the union-management relationship - A poor relationship will be costly because it will lead to disputes between the parties - Similar to effect of attitudinal structuring - Disputes may be based more on dislike of each other than on any substantive problem - Recurrence - Relates to whether an agreement resolved the issues between the parties

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Recurring issues will be costly because further expenses will be incurred in trying to resolve them

•

The cost of disputes model suggests the cost of disputes can be reduced if, in bargaining, the parties focus on interests − The parties should not focus on issues that can only be resolved if they exercise their rights or bargaining power - Interests involve common problems and mutually agreeable solutions

•

Ideally, a focus on interests results in: - lower transaction costs - greater satisfaction - less strain on the parties’ relationship - a lower recurrence of disputes - Model does not suggest that negotiations should ignore distributive issues or that negotiators should persist in using collaborative bargaining techiniques when no solution can be generated - Exercise of rights and power can sometimes bring about resolution when other tactics won’t

Two Alternative Models of Union-Management Negotiations The Mutual Gains Model of Bargaining - Sometimes also called principled negotiations, negotiation on the merits, or interest-based negotiations

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•

Proposed by R.E. Fisher and W.L. Ury

•

Founded on four principles: - People – separate the people from the problem - Interests – focus on interests, not positions - Options – generate a variety of possibilities before deciding what to do - Criteria – insist that the result of negotiations be based or evaluated on some objective standard

•

Joint union-management training in this model has produced positive results

•

However, research suggests an imperfect fit between mutual gains bargaining techniques and union-management negotiations - Reported effects of training include better listening, avoiding unproductive arguments, and strengthened trust in other side - This general model of bargaining may not be totally appropriate in the context of union-management negotiations

•

Inherent power imbalances (between unions and management) and different perspectives can make it difficult to apply this model - Often there is a basic difference between the amount of power each party has - Each party may have different ideas about what is an acceptable solution to a problem - Thus, it becomes hard to apply a model which emphasizes equality and commonality - Suggestions to increase applicability include increasing trust, reshaping roles and responsibilities of members of negotiating team, and changing power balances

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Two Alternative Models of Union-Management Negotiations The Mutual Gains Model of Bargaining Three approaches have been proposed to resolve adversarial conflicts: • Each side should strive to establish a minimum degree of trust in the other as well as a minimum level of communication • Each side should determine a minimum level of acceptance of the other • Both sides should recognize the level of mutual dependency - These suggestions are intended to maintain a positive relationship regardless of whether integrative or distributive bargaining is taking place • •

Studies suggest that this model can lead to improvements in attitudes and can result in more innovative solutions.

However, a major transformation of unions’ and management’s traditional structures will be required for a wider acceptance of mutual gains bargaining to be more acceptable - Also need better methods of implementation and practical action suggestions, since discussion is mostly theoretical

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1) Union-management negotiations generally go through five specific stages. In the pre-negotiation stage, each party identifies its desired bargaining outcomes and prioritizes them. In the stage of establishing the negotiating range, the parties exchange offers on specific items and determine how much difference there is between their offers. The parties also attempt to persuade each other of the merits of their positions. In the stage of narrowing the bargaining range, the parties exchange counter-offers based on the other party’s positions. In the crisis stage, the parties must decide whether to settle or whether to use tactics such as strikes or lockouts to pressure acceptance of their demands. Finally, in the ratification stage, the parties present the negotiated agreement to their constituencies for approval.

2) The four subprocesses identified by Walton and McKersie are: 1. Intra-organizational bargaining, in which each team seeks to reach consensus among its members and among the members of the organization it represents on bargaining goals and outcomes 2. Attitudinal structuring, in which the teams develop attitudes toward each other and toward their mutual relationship 3. Integrative bargaining, in which the parties identify interests they both share and try to develop solutions that benefit them both 4. Distributive bargaining, in which the parties compete with each other over the division of limited resources 3) Different subprocesses are relevant during different stages of negotiations. The intra-organizational and attitudinal structuring subprocesses are most apparent while the negotiating range is being established and the bargaining range is being narrowed. However, integrative and distributive bargaining also become apparent during the narrowing of the bargaining range. Distributive bargaining is usually present during the crisis stage.

4) The zone of agreement is important in negotiations because it is the area within which it is possible for the parties to reach a mutually acceptable settlement. As shown in Figure 8-1, if one party’s bottom line is $12 and the other’s is $15, the zone of agreement lies between $12 and $15, since this area includes potential settlements that would be acceptable to both parties. If the zone of agreement is does not exist (i.e., if there is no overlap between the parties’ range of possible outcomes) then the parties will not be able to reach an agreement.

5) Management’s bargaining power is affected by such factors as the size of its inventory, the structure of its operation, its competitiveness, the seasonality of the business, the ability for the business to operate during a strike, and the business's labour costs. The union’s bargaining power is affected by such factors as the strength of its commitment to specific issues, the access to funds for

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supporting union strike activity, and the timing and the effectiveness of a possible strike. The amount of both parties’ power is also affected by environmental, socio-demographic, and organizational factors.

6) The four principles of mutual gains bargaining are: • separate the people from the problem • focus on interests, not positions • generate a variety of possibilities before deciding what to do • insist that the results of negotiations be based or evaluated on some objective standard The application of these principles is intended to make the negotiating focus on their common interests to reach a solution, and, as the name of the model suggests, to focus on the gains that each will make from a mutually satisfactory solution. In this sense, mutual gains bargaining is similar to the integrative bargaining sub-process.

7) The “cost of disputes” model suggests four criteria to assess the cost of disputes in a negotiation: • Transaction costs, e.g., expenditures of time, money, resources and emotional energy, and the value of opportunities lost because of disagreement • Level of satisfaction, i.e., how satisfied the parties are with the result of bargaining and how well the result addresses each side’s underlying interests • Long-term effect of bargaining, i.e., how bargaining affects the unionmanagement relationship and whether further disputes arise because of a poor relationship • Recurrence, i.e., whether the negotiations produced an agreement that resolved problems, or whether the problems recurred and caused further expenses

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TEACHING NOTES FOR CHAPTER 8 CASES CASE 8-1 SPECIALTY WORKERS UNION and WINNING CASINO This case is based on United Food and Commercial Workers Union Local No. 401 and Gateway Casinos G.P. Inc (141 C.L.R.B.R. (2nd)), Alberta Labour Relations Board.

Decision date June 13, 2007.

The board ruled that the employer’s refusal to allow union representatives in the lunchroom and the employer’s refusal to allow union representatives on the casino floor were both prohibited interference with union representation. The board also ruled maintaining those policies to the point of a bargaining impasse breached the duty to bargain in good faith. The board stated that the video surveillance of the two union representatives was prohibited interference with union representation. The board found that the employer’s position on providing a union office and the employer’s two-tier wage proposal did not violate the duty to bargain in good faith.

The board ordered the employer to cease and desist its practices of banning union staff members from the lunchroom and from the casino floor. The board did not feel that it needed to order the employer to table another offer on the issue of wages or on the issue of the union office.

The reasons for the board’s decisions were: -

There was clear evidence of past and current conflict between the employer and the union, particularly in showing that the employer did not like this particular union, but that in itself did not determine whether the employer’s actions violated labour law. The board noted, “The [law] does not oblige an employer to like its employees’ bargaining representative. Nor does it require the employer to agree to all measures that would solidify the bargaining agent’s relationship with its members” (p. 243).

-

The evidence did not indicate that the employer was trying to avoid resolving a collective agreement, especially as the employer had requested an employee vote on its most recent offer.

-

The board stated that a private union office in the workplace would be helpful to the union but not essential, and noted that the union does not have such an arrangement in any other workplace. The board considered the provision of an office to be an issue which the parties could resolve through bargaining.

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-

However, the board stated that some access to the employee lunchroom and the casino floor was essential for the union to meet with its members, to be visible to members who might have concerns, or to view conditions that might be the subject of complaints or grievances. If restrictions were needed because of security or customer service concerns, they should be reasonable ones.

-

The video surveillance of the union representatives was “not random” and was more surveillance than would normally be conducted on employees or customers.

-

The board agreed with the union’s position that the employer did not discuss the possibility of a two-tier wage system prior to introducing its proposal in negotiations.

-

The board also noted that the two-tier proposal was offered to employees in the employee vote with a signing bonus, which indicated that the employer knew the proposal would not succeed in bargaining.

-

However, the board stated that legislation and case precedents established that while changes in subjects of bargaining could be bargaining in bad faith, proposing a significantly different approach to a known subject should not be prohibited. The board also noted that the union knew of the employer’s dissatisfaction with the “diagonal” wage structure.

-

The board acknowledged that the employer’s approach in presenting the two-tier wage structure, with the incentive of a signing bonus, was “bold and aggressive” (p. 254), but determined that it was not an effort by the employer to avoid settling a collective agreement. The board also stated that the proposal did not threaten the framework of collective bargaining because the proposal did not force the union to re-examine any of the points it had previously agreed to.

Suggested Discussion Questions for Case 8-1 1) What is meant by “bargaining in good faith”?

2) How might the duty to bargain in good faith affect when or how parties should introduce proposals in collective bargaining?

3) In some workplaces, like the one in this case, there are special considerations around security or surveillance. How might these affect the union’s job of representing its members?

4) If you were the board in this case, what would you decide?

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CASE 8-2 Wright College and Wright College Faculty Union This case is based on St. Thomas More College and St. Thomas More College Faculty Union (1977) (148 C.L.R.B.R. [2d]), Saskatchewan Labour Relations Board. Decision date February 12, 2008.

In this case, the board upheld the complaint of failure to bargain in good faith, and ordered the union to hold another ratification vote.

The board’s reasons for its decision were: -

The legal duty to bargain in good faith requires that the parties “strive towards the goal of concluding and executing a collective agreement” (p. 306), and the board must examine the union’s conduct in this context.

-

The board acknowledged that a recommendation to ratify a tentative collective agreement is not an inherent part of the duty to bargain in good faith.

-

However, the obligation to recommend ratification arises from “an express agreement made between the parties” (p. 307), and reaching that agreement also requires negotiations. The board found that in this case such an agreement was made verbally and also in writing.

-

Both parties knew that the collective agreement would not be binding until the union membership voted on the agreement, and Dr. Hines fulfilled his obligation to recommend ratification.

-

The board recognized that the union membership was diverse and had different and sometimes conflicting interests. The board believed that the negotiating committee was given a sufficient mandate by the union executive, and the negotiating committee clearly intended to bargain in good faith because it did conclude an agreement.

-

However, the board found that the new union executive did not show a willingness to conclude a collective agreement because it actively encouraged the union members to reject the agreement. The union executive is also subject to the requirement to bargain in good faith because it is in constant contact with the negotiating committee and gives it advice and direction.

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-

The union executive also expressed clear opposition to the tentative agreement and demanded changes to it, which did not demonstrate a willingness to conclude a collective agreement. The union executive went beyond explaining the new agreement to the membership, and instead stated in detail what it liked and did not like, under the guise of raising “concerns”, and used language designed to “inflame the members’ opinion” (p. 317).

-

The membership of the union is intelligent and knowledgeable, and is “a membership capable of critical analyses of the collective agreement and capable of expressing opinions” (p. 317). Thus it was not necessary for the union executive to “help” the members raise concerns about the agreement; all that was needed was for the executive to explain the changes between the old and new agreements.

-

The board also pointed out that while the two union executive members who spoke against the ratification at the membership meeting claimed they were speaking only as individuals, no one from the new executive spoke in favour of ratification.

This was the first time in the history of this employer and union that a negotiated collective agreement had not been ratified. However, not all of the union members were present at the ratification meeting, and the concerns expressed by the new union executive were concerns shared by some of the membership. Because of this, the board said it could not conclude that the ratification vote failed simply because the union did not fulfill its obligation to bargain in good faith. Therefore, the board ordered that the union conduct another ratification vote within 45 days of the board’s decision being issued.

Suggested Discussion Questions for Case 8-2 1. If the members of a bargaining team change during the process of concluding a new collective agreement, is it appropriate for the team to change its bargaining positions?

2. When bargaining team members are presenting a tentative agreement to their constituencies, what do you see as their responsibilities?

3. If a bargaining team member disagrees with the rest of the team’s opinion on a bargaining position, what would you recommend as appropriate actions for that team member?

4. If you were the labour relations board in this situation, what would you decide?

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TEACHING NOTES FOR COLLECTIVE BARGAINING SIMULATION EXERCISE NEWTOWN SCHOOL DISPUTE Preparing for the Exercise To conduct this bargaining simulation, students will need to be assigned to a Teacher Association team or a Board of Education team. One Teacher Association team and one Board of Education team will conduct a negotiation based on the information provided. Depending on the size of the class, it is possible to run simultaneous sets of negotiations. Each bargaining team can have two or more members, although the opportunity for every team member to intensively participate in the bargaining is reduced with larger teams. Teams of between four to six members are most appropriate for this exercise. If there are simultaneous negotiations, the instructor, if desired, can also assign observer(s) to each set of negotiations to report back to the class.

Observers can be asked to answer questions such as: Which bargaining tactics or behaviours were used?

Did you observe the bargaining stages and subprocesses described in the chapter?

Were the parties satisfied with the final settlement?

What factors, in your opinion, influenced the eventual outcome of the negotiations?

Based on what you observed, can you make any suggestions on how to be a successful negotiator?

The textbook contains the “background information” that is available to both teams. The members of each team should be provided with copies of the appropriate “team information” included below. Some teams may want to gather additional information (such as actual recent settlements in local educational districts, or local cost-of-living rates) to strengthen their case, but having this information is not essential to being able to successfully participate in the exercise. It should be noted that the figures in the salary schedule on p. 233 are lower than what teachers would be paid in most Canadian jurisdictions, but the team members can be reminded that the numbers are simply part of the exercise and are not necessarily intended to reflect real-life conditions.

NOTE: there is a deliberate mistake in the costing of the teachers’ salary schedule. The current-year cost of the step 5 salaries is shown as $1,563,000, but should be $1,625,000 (26 X 62,500). This mistake is included to ensure that the parties have thoroughly reviewed the calculations leading to the projected budgets. Most teams are successful at identifying the mistake, but are not always sure how to deal with it when approaching negotiations. They should be encouraged to bring the mistake to the bargaining table to discuss with the other team, and to ensure that both parties’ proposals are based on the same set of calculations.

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Each set of negotiations will need its own meeting room. Ideally, each room should have other vacant rooms or secluded areas nearby for private team meetings during the negotiations. Also, if there are multiple negotiations, it is preferable to have the rooms somewhat distant from each other (e.g., on different floors). This is so the negotiators are not distracted or influenced by audible or visible activity from other negotiations.

The amount of time needed to conduct the exercise will obviously depend on the class schedule, but for this exercise to at least approximate the “real” bargaining experience, an uninterrupted block of two to four hours is preferable. If the class is scheduled to meet twice a week, the exercise can be conducted over two class periods.

The exercise will be most successful if, in addition to the actual negotiating time, part or all of a preceding class can be devoted to in-class preparation. During this time, each team can meet privately and the instructor should visit each team. Having this preparation session greatly improves the quality of the bargaining during the simulation.

It gives each team some guaranteed time to collectively review information, to develop strategy, and to assign responsibility for preparing the written proposal to be presented at the start of negotiations. (This is particularly important when students may not be available for group meetings outside class time.) This session also gives students the opportunity to ask questions of the instructor. Students may be confused about points in their information (e.g., the concept of “prep time” is not always understood) or about how the negotiations are to be conducted. To encourage the teams to be responsible for their own performance, however, the instructor should resist answering questions such as which strategy would be most effective or what an appropriate bargaining demand on a particular item would be.

At the end of the class prior to the negotiation session, the instructor should ensure that each student knows which negotiation s/he is assigned to, where that negotiation will meet, and what time the negotiations will commence.

Conducting the Negotiations Before the negotiations start, the instructor should ensure that each set of negotiations is provided with a copy of the “Final Settlement” form shown below. As described in the textbook, this form is to be used to record the agreement on each item and is to be signed by all parties. If the parties do not conclude an agreement by the end of the designated bargaining time, the parties should each record their final positions on the items still in dispute.

The negotiators should be informed that it is their responsibility to start the negotiations themselves at the designated time (i.e., that the instructor will not come around and tell them to begin). This stipulation establishes that it is the parties, not the instructor, who control the negotiations. While the negotiations are actually in progress, the instructor and any observers must not make comments or offer advice. The only exception might

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be (at the instructor’s discretion) if both teams mutually agree to ask for clarification or other information.

At the end of the negotiation session, or when the teams have concluded their agreements, the “Final Settlement” form or a similar document should be returned to the instructor. As the textbook mentions, the “final settlement” information for all simulations should be summarized and returned to the participants in the exercise. Seeing these summaries is often very enlightening for the participants because, even though each set of negotiations has the same information, it is very rare that any two negotiations will produce identical outcomes.

After the Negotiations A debriefing session in the class immediately after the negotiation session can be very worthwhile. The instructor can encourage discussion on the process of negotiation as experienced by the participants, and there might also be discussion of the various settlements described in the summary of the “Final Settlement” forms. If observers were assigned to the negotiations, they can also make their report to the class. The instructor can use the experience of the simulation to illustrate the chapter material about the stages and subprocesses of bargaining, and the effectiveness of the strategies and tactics described for managing each subprocess.

Evaluating the Simulation Some instructors may choose to conduct the simulation simply as a learning experience for the class members, while others may incorporate it into the evaluation components for the course (i.e. assign part of the course grade to it). Some methods which may be used individually or collectively to assign grades for performance in the simulation include: • Requiring each team to submit a complete bargaining proposal in writing to the instructor, including the team’s opening and bottom-line positions on each items and its rationale and/or strategy for its goals for each item. The instructor can evaluate this document on such criteria as completeness and quality of reasoning/strategy.

• Requiring the participants in each set of negotiations, at the conclusion of each simulation, to submit a balance sheet showing the budgetary impact of the negotiated items and a description of the agreed-upon terms for each item. If the two teams are unable to reach agreement on an item or items, they can submit their final positions on the unfinished items, along with a description of why they were not able to agree.

• Basing a part of the grade on observer or peer evaluation of team members’ performance during negotiations. These evaluations could be based on criteria such as appropriateness of behaviour/attitude toward other team, willingness to work cooperatively with other participants, demonstration of ability to work toward mutually agreeable solutions, and ability to work cooperatively within one’s own team.

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NEWTOWN SCHOOL DISPUTE Board of Education’s Position You, along with the other members of your team, constitute the whole of the Newtown Board of Education. You are to select one or more of your members to serve as chief negotiator(s) representing your side in contract negotiations with the Newtown Teacher Association. Members of your team not designated as chief negotiator(s) may function in any capacity that the team decides upon.

As indicated in the background information, the previous contract with the Teacher Association has expired. It is now the beginning of the school year and, as a result of various pressures, the teachers have agreed to return to work on a day-to-day basis, with the reservation that they may call a strike at any time so long as the contract is not finalized. Your responsibility as the board is to conclude an agreement with the Teacher Association and to avert a strike. However, the teachers are not fully informed of just how important it is for you to reach an agreement. In order to conclude an agreement, in light of the budget situation described in the background information, you feel that you have to minimize concessions, reduce staff, obtain an increase in teachers’ work load, and retain your prerogatives to make final decisions wherever possible. The board has been informed privately that if it cannot succeed in preventing a strike and finalizing a contract at minimal cost, the community may withdraw its support of the board and ask for your resignation. All members of the board, however, wish to remain on the board.

Also, the board has discretionary power to transfer funds among budgetary categories if the need arises.

The issues that remain unsettled fall into six categories: Reduction in staff Work load Evaluation of teachers Salary Binding arbitration of grievances Benefits These general categories are ranked in order of importance to the board. The board’s position on specific issues within these categories is spelled out below. The provincial law requires that all issues in dispute are negotiable.

Reduction in staff The board wants the following: • System-wide reduction in staff, as deemed necessary by the board. The board wishes to retain as much control as possible over layoffs, but may provide opportunities for the Teacher Association to make informal recommendations of various kinds.

• Final decisions about layoffs of individual teachers, as well as quotas within schools and/or grade levels, should remain with the board. The board wishes

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to retain as much control as possible, but may offer mechanisms enabling the Teacher Association to voice its views.

• Layoffs to become effective 20 working days after the contract is finalized. The board wishes to expedite layoffs as quickly as possible, but has some room to negotiate on this issue.

• Notifications of layoffs to affected teachers to be issued not more than 10 working days prior to layoff date. The board wishes to minimize the notification period. However, the board feels that there is some room to negotiate on this issue.

• Members of the board are generally resistant to hearing grievances from individual teachers that have been laid off. However, the board is willing to accept an informal review procedure so long as it minimizes time investment and permits the retention of final discretionary power by the board.

• Recall: the board is willing to accept a recall list but wishes to limit formal eligibility to one year from the date of layoff. The board also wishes to retain full discretion in recalling individual teachers, particularly those whose oneyear recall period has expired, if it wishes to do so.

• Notification and acceptance of recall: the board wants written response within 72 hours of notification of recall in order to expedite recall. Again, the board wishes to minimize its efforts and obtain a clear indication of recall acceptances as quickly as possible. However, there is some room to negotiate within the context of this principle.

In general, the board wishes to reduce the number of teaching staff in order to absorb part of the overall budget decrease. It also hopes to use layoffs to partially cover increased costs that would result from finalization of the contract presently being negotiated.

Work Load The board wants the following: • Student/teacher ratio: the board wants an increase in the system wide ratio from its current level of 32 to approximately 35. Although there is some flexibility on this issue, the board feels it is important for budgetary reasons to come as close to 35 as possible.

• Workday: the board wants an increase in the length of the present workday from seven hours and five minutes to a full eight hours. The shorter workday was agreed to in better times when the budget was able to tolerate it. Now the board feels that it wants the time “returned”.

• Prep time: the board wants elimination of the 50-minute prep time period given to each teacher on each workday (one period per day). Same reasons as in 2.2.

• Duty-free time: the board wants elimination of duty-free time given to each teacher on each workday. This amounts to 25 minutes per day in addition to a 25-minute lunch period. Same reasons as in 2.2.

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• Emergency assignments and general obligations: The board wants discretionary power to assign teachers to activities during the 75 minutes gained from 2.3 and 2.4 above. These activities include emergency substitute fill-in, bus duty, hall duty, disciplinary duty, and committee service. Also, the board wants to assign teachers to monitor and chaperone after-school athletic and social activities.

In general, the board wishes to increase teachers’ workload so as to regain coverage of work lost to layoffs and budget cuts, while at the same time minimizing costs.

Evaluation of teachers The board wants to hire its own consultant to develop a systematic evaluation procedure. It wishes to use these evaluations as aids in each of the following areas: • Determining pay increases • Assigning teachers to schools and classes • Granting tenure • Removing teachers The board feels that evaluation is a legitimate management activity and that the Teacher Association should provide only advisory assistance for the design and execution of the evaluations.

The board does not want these evaluations to be freely available to teachers, due to the confidential nature of the material included and the notes likely to be made by supervisors. Instead, the board is willing to provide limited access to evaluations by having a teacher’s supervisor, principal, or assistant principal summarize the contents to individual teachers. Here, the board wishes to retain discretion as to information revealed to individual teachers.

The board is seeking ‘unannounced visitations’ into classrooms for the purpose of conducting observations as a part of the evaluation procedure. The board wishes to be unrestricted in its freedom to conduct these observations, but is prepared to accept scheduled visitations.

Salary The board wants the following: • Retroactivity: No retroactivity of salary increases prior to date of contract finalization. However, if necessary, the board feels it can provide a nominal percentage of full retroactivity, but it would prefer not to do so.

• Cost of living increase: the board feels that it can only provide a percentage of the previous year’s increase in cost of living, as determined by official government figures. However, this limit may be approached in many ways, and the board is willing to entertain suggestions.

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• Across-the-board increases in salary schedule: the board feels that it cannot provide such increases unless budgetary resources can be obtained through sacrifices made by the Teachers Association on other issues in the present negotiations.

Binding Arbitration of Contracts The board is hesitant to consent to a binding arbitration procedure, as a result of certain groups in the community who are adamantly opposed to erosion of management prerogatives. The board is willing to agree to some form of advisory (non-binding) arbitration.

Benefits During this time of severe budgetary curtailment, the board wants to minimize expenditures on benefits. This includes the direct costs of the benefits, as well as the costs that the school system would incur in administering benefit programs.

•

Accumulated sick leave upon severance: the board wishes to minimize such expenditures.

•

Bereavement leave: the board is willing to give up to two days’ bereavement leave in the case of the death of a member of the teacher’s immediate family (spouse or children).

•

Civic duty leave: the board is willing to grant salary for jury duty only. The board also wishes to deduct the amount received for jury duty from a teacher’s regular daily rate of pay.

•

Childbirth leave: the board is seeking a maximum of 10 days’ leave for female employees who have given birth, and no more than five days’ leave for spouses or partners of new parents. In addition, the board prefers that childbirth leave be classified as sick leave.

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NEWTOWN SCHOOL DISPUTE Teacher Association Position You and your teammates are the bargaining team of the Newtown Teacher Association.

You are to select one or more of your members to serve as chief negotiator(s) representing your side in contract negotiations with the Newtown School District.

Members of your team not designated as chief negotiator(s) may function in any capacity that the team decides upon.

As indicated in the background information, the previous contract with the school district has expired. It is now the opening day of the school year, and, as a result of various community pressures, the Teacher Association has agreed to return to work on a dayto-day basis, with the provision that it is free to call a strike at any time if the contract is not finalized. In this regard, the bargaining team has considered several options, ranging from a system-wide strike to more limited actions such as a work-to-rule campaign and refusing to participate in extracurricular activities.

Your union represents all of the teachers in the Newtown system, with the exception of special education assistants and other types of teachers’ aides, who are represented by a different union. The information available to you indicates that a majority of your union’s membership prefers to conclude an agreement, but is willing, if necessary, to engage in strike action. Of the remainder of the membership, one group wants to avoid any strike, while a second group is pressing you to call a strike immediately. You, along with the other members of your team, prefer to conclude a contract rather than to go on strike, but you are ready to do the latter if necessary. You are aware of increasing community pressure on your association and on the school board to conclude an agreement in order to avert school shutdowns.

The Teacher Association membership is aware of the budget cuts being imposed on the school district. However, it has certain demands that it feels are justified and reasonable in light of the increased cost of living and recent gains received by teacher associations in neighbouring communities.

In general, the bargaining team wants to avoid losing benefits that the Teacher Association has gained over the past several years. The perception is that the Board of Education is trying to reduce staff numbers, and at the same time is trying to increase teachers’ workload in order to meet externally imposed budgetary reductions. You feel that the board is attempting to impose the burden of the budget cuts on teachers rather than distributing the cuts equitably throughout the system. Many members of the association also want salary increases that, at the very least, will offset the increased cost of living. Many teachers are willing to share some of the impact of the budget cuts and are willing to make a reasonable contribution to this end. A sizeable portion of the membership is willing to accept an increase in workload, provided that the increases are reasonable and that they have some choice in how the increases would be accomplished. However, most of the membership feels that the board is asking

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teachers to incur most of the costs and make most of the sacrifices, while seeking to retain its own prerogative to make all decisions in these matters.

The issues that remain to be settled fall into six general categories: Salary Evaluation of teachers Reduction in staff Work load Benefits Binding arbitration of grievances These categories are ranked in order of importance to the teachers. The bargaining team’s position on specific issues within these categories is spelled out below. The provincial law requires that all issues in dispute are negotiable.

Salary The Teacher Association wants the following: • Retroactivity: all salary increases retroactive to July 1, the anniversary date of the contract. However, information available to the bargaining team suggests that the membership may be willing to accept partial retroactivity in exchange for concessions on other issues. The acceptable possibilities include a reasonable percentage of full retroactivity; differential retroactivity linked to criteria such as years of service and present salary level; or any formula agreed upon by the teams that yields satisfactory concessions on other priority issues.

• Cost of living increase: the membership prefers a cost of living increase comparable to the regional increase in cost of living during the previous year, as determined by official government sources. However, information available to the bargaining team suggests that the membership might be willing to accept either a differential formula or one providing a reasonable percentage of the full increase in cost of living, in exchange for concessions on other issues.

• Across-the-board increases in salary schedule: in order to equalize salaries with those in surrounding districts, the membership wants a $750 across-theboard increase. Information available to the bargaining team suggests that this figure could be somewhat flexible, so long as pronounced inequities at the lower steps of the salary schedule are brought into line with those of the surrounding districts.

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Evaluation of Teachers The bargaining team has information indicating that the board is about to hire a consultant to develop a systematic evaluation procedure to be used by the board in determining individual salary increases and assignments to specific schools and duties.

The board also wants to use these evaluations as the basis for decisions on appointments to permanent positions and on teacher layoffs. The membership is wary of this approach. Instead, teachers want the following: • Teacher and union representation in the process of designing, implementing, and conducting teacher evaluations. The areas of most concern are the development of performance criteria against which teachers’ performance will be evaluated, and the development of the rules concerning the conditions under which evaluations will be made.

• Access by individual teachers to any and all evaluation data involving them that has been obtained or is on file.

• The opportunity to challenge, through a specified procedure, any information felt by individual teachers to be inappropriate, inaccurate, or otherwise damaging to them, and to have such information removed from the teacher’s file.

In general, the teachers want an explicit agreement, incorporating their input, which states the content of teacher evaluations, the procedures to be followed in obtaining evaluation data, and the use of evaluations by the board in determining teacher salary, school assignments, permanent appointments, and other staffing-related decisions.

Reduction in Staff The Teacher Association wants the following: • Minimal and selective reductions in staff, to be offset wherever possible by activating early retirements, using teachers to fill administrative positions that are presently vacant, and using laid-off teachers to fill vacancies created by teachers on both short- and long-term leave.

• Layoffs to be determined on a case-by-case basis and with decisions made jointly by representatives of the Teacher Association and the board.

• Layoffs to become effective on the last day of the present school term (January 28).

• Written notification of layoff to affected teachers, to be given at least 60 days prior to layoff date.

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• The right to dispute layoffs of individual teachers by meeting and conferring with the board in order to resolve disputes. Where disputes cannot be resolved in this manner, the case will be submitted to an arbitrator whose decision will be binding. In the event of a reversal of layoff resulting from either procedure, the reinstated teacher would receive full salary for any period of layoff.

• Laid-off teachers to be placed on a recall list in order of their layoff dates.

Teacher’ names will be on this list for a period not to exceed three years. If laid-off teachers were placed on the list on the same day, recall priority is to be determined by calculating each teacher’s length of service prior to the layoff date. If a teacher with seniority is recalled over another teacher placed on the list on the same day, the teacher who is not recalled is to be placed at the top of the recall list for consideration in the next vacancy.

• Recall notification shall be given in writing to the teacher being recalled.

Teachers shall have 10 days following receipt of the notification to inform the board of their intention to accept or decline recall.

In general, the Teacher Association wants to minimize layoffs through placing teachers in existing administrative vacancies, activating early retirements, and using laid-off teachers as substitutes for teachers on leave. Also, the Teacher Association wants to have representation in layoff decisions, to maximize the time of layoff notices to affected teachers, to have specified recall procedures, and to have a procedure permitting it to challenge board layoff decisions. Within these overall membership preferences, however, the bargaining team recognizes a need to remain flexible and to make tradeoffs wherever necessary.

Work Load The bargaining team has information indicating that the membership, though somewhat divided, wants the following: •

Student-teacher ratio (average class size): the present system-wide ratio is approximately 32:1. However, this figure is an average; there are some smaller and some larger classes. The membership wants to hold the ratio at its present level, but might be willing to accept an increase in the ratio for certain types of classes in exchange for concessions on other priority issues.

•

Workday length: the length of the present workday, as established in previous contracts, is seven hours and five minutes. Although there are strong feelings in the membership against any formal increase, the bargaining team feels that it might agree to certain limited increases, particularly where individual teachers voluntarily agree to assume additional responsibilities on an ad hoc basis. The bargaining team wishes to use this option as a lever to gain concessions on other priority issues.

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Prep time: teachers currently have a 50-minute prep time period each workday.

Much of the membership feels rather strongly about retaining this period “as is”, but the bargaining team feels that it might be able to offer a nominal reduction to this amount on a rotational or otherwise shared basis. The bargaining team feels that any concession on this issue should yield appropriate concessions in return.

•

Duty-free time: in the previous contract, the teachers made a concession to the board which reduced their one-hour lunch period to 50 minutes. Furthermore, the teachers also agreed to divide this 50-minute period into two parts: 25 minutes for lunch and 25 minutes of “duty-free time”. The teachers are adamantly opposed to any demands by the board for additional service during the 25-minute duty-free period.

•

Emergency assignments and general obligations: the teachers are opposed to giving the board discretionary power to assign teachers to various duties during their prep time or duty-free time. Such assignments could include emergency substitute fill-in, bus duty, hall duty, disciplinary duty, committee service, and monitoring and/or chaperoning of after-school athletic and social events. The bargaining team feels that it can design schemes filling some of these needs, provided that: o Decisions pertaining to such assignments are made jointly by representatives of the Teacher Association and the board o Such assignments are rotated in order to minimize and equalize such service for all teachers o Individual teachers have a choice of the duties to which they are assigned

The bargaining team is willing to make these proposals in exchange for concessions on other priority issues. In general, the teachers are willing to make certain concessions on workload, provided that assignments are not made arbitrarily by the board and that any increases are kept to a minimum and distributed equitably.

Benefits The Teacher Association wants the following: • Accumulated sick leave upon severance. Teachers in most surrounding communities receive payment for unused sick leave upon severance, so the Newtown membership feels that it too is entitled to such benefits. However, the bargaining team believes that less than a 100% payment might be acceptable to the membership if concessions on other priority issues were forthcoming from the board. These forms of payment might include payments of a percentage of accumulated sick leave, payments keyed to years of service, or payment calculations based on the reasons for severance. The bargaining team also sees the possibility of phasing such benefits in over several years.

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• Bereavement leave: according to a poll taken by the bargaining team, the members want up to five days of paid leave after the death of an immediate member of a teacher’s family, including spouse, child or parent. The members also want two days’ paid leave in the event of the death of a spouse’s parent.

However, the results of the poll indicate that these preferences are somewhat flexible.

• Civic duty leave: the membership has indicated that it wants full pay from the school district for members serving on jury duty, without deductions for any pay received as a result of such duty. However, the bargaining team’s information suggests that the membership could be induced to accept a formula in which any pay received for performing civic duty would be deducted from regular pay, so long as teachers incur no loss of their regular pay while performing such duties. The bargaining team feels that such an agreement would only be appropriate if the board is willing to meet salary demands satisfactorily.

• Childbirth leave: the membership wants 15 days’ paid leave for both female and male employees. A number of teachers also want childbirth leave to not be counted toward sick leave allocations. However, the bargaining team feels that tradeoffs might be made on this issue in exchange for salary and/or reduction in staff concessions. The bargaining team feels it can develop proposals tying childbirth leave to specific workload issues so as to reduce the overall cost of such leaves to the system.

Binding Arbitration of Grievances The teachers are seeking binding arbitration of grievances, but are willing to temporarily accept advisory (non-binding) arbitration, provided that they are satisfied that teachers’ interests are appropriately represented in the process. The bargaining team wants to use this as a lever to gain concessions from the board on issues related to work and reduction of staff.

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FINAL SETTLEMENT NEWTOWN SCHOOL DISTRICT COLLECTIVE AGREEMENT We the undersigned agree to these terms of settlement for the following bargaining items: Benefits ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ Binding Arbitration of Grievances ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ Evaluation of Teachers ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ Reduction in Staff ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

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Salary ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ Work Load ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ Teacher Association bargaining team (signatures)

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 8 TOPICS Negotiation The Program on Negotiations in the Workplace, part of the Harvard Law School’s Program on Negotiation. http://www.pon.harvard.edu/category/research_projects/program-on-negotiations-in-theworkplace/ A description of the negotiation process, from the website of the international enegotiation project involving several Canadian partners. http://interneg.concordia.ca/enegotiation/projects/labour/tournament/training_01.html

Alternative Models for Union-Management Negotiations A summary of the book Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury. http://www.colorado.edu/conflict/peace/example/fish7513.htm Information about the costs of disputes model and the work of William Ury, Jeanne Brett, and Steven Goldberg. http://www.colorado.edu/conflict/peace/treatment/dsd.htm

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CHAPTER 9 Strikes and Lockouts LECTURE NOTES

Chapter 9 Objectives At the end of this chapter, you should be able to: • Define a strike and a lockout • Explain why a strike or lockout would be used as a bargaining tactic • Outline the legislative guidelines for the use of a strike or a lockout in bargaining • Describe the criteria that are used to identify an essential service • Outline legislative guidelines on picketing activity • Define replacement workers and when and how they might be used in strikes • Assess the impact of strikes in Canada

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Strikes and Lockouts • Strikes and lockouts are visible actions - This is deliberate since one of the purposes of a strike is to draw public attention to a dispute •

Strikes and lockouts are uncommon events - They are perceived as being regular and inevitable but they are not - Approximately 90 percent of collective agreements in Canada are settled without a strike or lockout

•

Strikes and lockouts can have widespread impact and long-lasting effects - Thus it is important to understand what they are and how they are conducted

•

Defining Strikes and Lockouts - A strike occurs when union members in a bargaining unit withdraw their labour, i.e., refuse to perform part or all of their regular duties or come to work - A lockout occurs when the employer closes all or part of the workplace so that the workers cannot enter the premises to perform their jobs

•

Industrial action and industrial conflict are terms that are also used to describe both strikes and lockouts

•

A recognition strike is used to pressure an employer into recognizing a union as the employees’ representative - Recognition strikes were often used in the early days of Canadian unionism - The need for recognition strikes disappeared when Canadian labour legislation formalized the certification process and forced employers to accept their employees’ chosen workplace representatives

•

Recognition strikes are banned in every Canadian jurisdiction

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Strikes and Lockouts • A legal strike or lockout can take place only while collective bargaining is in progress •

Negotiation sessions do not have to be taking place - Strikes or lockouts often occur because bargaining has broken down -

However, the parties must be in the process of bargaining and a collective agreement must not have been settled

•

In most Canadian jurisdictions, the employer is prohibited from dismissing striking employees during a strike

•

Work does not have to stop completely for a legal strike to occur

- Several provincial codes and the Canada Labour Code state that a work “slowdown” can be considered a strike. This includes overtime bans, rotating strikes, and work-to-rule campaigns • Slowdowns include union-imposed overtime bans and rotating strikes - In a rotating strike, workers at one location of a business stop work but workers at other locations keep working - Employer doesn’t always know in advance which location will be affected • −

Work-to-rule campaigns occur when workers apply the most narrow interpretation of the terms of their collective agreement in order to slow production; Working to rule can be considered a strike action

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Strikes and Lockouts • Why Strikes or Lockouts Happen - The basic purpose of a strike or lockout is to inflict “economic pain” on the other side - This is intended to force the other side to accept bargaining demands In a strike or lockout: • The employer is hurt financially by lost revenue - Because there are no workers, the employer usually cannot produce or sell products or services •

The striking union members do not receive their regular pay

The goal of the party undertaking industrial action is to make the other party suffer more - Both parties suffer, but the goal is to make the other party suffer more so that they accept bargaining demands •

The successful party is, in many cases, the party with enough resources or determination to withstand the economic pain inflicted by the action - Successful = achieves bargaining demands

•

A strike or lockout is not always won by the party with the more reasonable, ethical, or equitable proposals - More often, it is the party with more resources, regardless of the merits of that party’s bargaining position

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Motivations for Striking or Locking Out Complex motivations for strikes and lockouts: "Strikes as mistakes" • Suggests strikes or lockouts occur as a result of mistaken perceptions developed during bargaining •

Some reasons for inaccurate perceptions: - Lack of bargaining experience - Inexperienced bargainers may not know either how to elicit or how to interpret information - They may also misinterpret how much the other party is willing to concede -

-

-

Limited disclosures of information - One party may withhold information that could affect other side's perceptions Complexity of issues - One or both parties may not understand a new or complex issue or proposals related to it Miscalculations of the other side's position Changes in the parties' expectations during bargaining - E.g., expectations may be altered by input from constituencies or changes in external environment like new legislation - One party may misunderstand the other party’s position and thus erroneously believe there is no common grounds for a settlement - One party may then undertake a strike or lockout to force an agreement - Thus a strike or lockout is a mistake because the parties could have agreed on issues without the pressure of industrial action

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Strikes as collective voice • Suggests that strikes or lockouts are likely to occur due to mistrust in the unionmanagement relationship - Unions and management represent different interests and have different philosophies on workplace governance - Thus they have fundamental reasons to distrust each other even if a specific union-employer relationship is positive - What determines if distrust is manifested as a strike or lockout?

The occurrence of a strike or lockout depends on several factors: • The amount of worker discontent - Dissatisfied workers are more likely to strike •

Management’s willingness or ability to address discontent - Reducing employee discontent may also reduce the possibility of a strike

•

The existence of other means to express discontent - E.g., grievance procedure or management "open door" policies may provide alternate means for workers to express unhappiness

•

The ability of union leaders to mobilize discontent - Union leaders must be able to show that a strike is reasonable and will be productive if union members are going to commit themselves to that action

•

The social legitimacy of strikes - If society in general perceives strikes as illegitimate, striking will not gain public support and thus it may not be a useful way to pressure management into agreeing to the union’s demands

Strikes or lockouts occur for non-economic reasons such as expressing worker discontent - The opportunity for a party to have a “voice” may be more important than the economic impact of a strike or lockout - Strikes or lockouts can also be used to release tension or high emotions that have built up during bargaining

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Bargaining Structure • Larger bargaining units may be more likely to go on strike than smaller units (according to an American study) - This is attributed to perception that larger bargaining units will have more impact by striking than will smaller bargaining units •

Lack of data makes it difficult to determine if this is also the case in Canada - In the past, national strike statistics were collected only for units of more than 500 workers

•

An Ontario study indicated that very small bargaining units in this country are less likely to strike; among larger-sized units, the tendency to strike varies - Units most likely to strike were those of 150 to 300 workers - Units least likely to strike were those of less than 21 members - Units of 50-149 members and of 300-499 members had roughly equivalent strike rates - However, this study included private and public sector bargaining units, and the ability to strike is usually more limited in the public sector (thus, lack of strike may not indicate unwillingness to strike) - Another study indicated that smaller bargaining units tended to be involved in longer strikes

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Bargaining Structure Individual Factors • One study indicated that higher loyalty to the union results in a higher propensity to support strike action - Study was based on a small number of subjects - However, it is not illogical that employees loyal to the union might be more likely to support actions proposed by the unions - Since union members give the mandate for strike action, their support is essential if a strike is to happen - Another study suggested that both high commitment to the union and high levels of solidarity within the union are needed to increase the likelihood of a strike •

If parties had a history of using strikes or lockouts against each other, they may be more likely to do so again - Parties will be knowledgeable about how these actions are conducted - May be less fearful of these actions than parties with little or no experience

•

If the parties had a hostile relationship prior to the start of bargaining, both parties might be willing to consider more confrontational bargaining tactics - This might also happen if their relationship became contentious during bargaining - A hostile relationship can have other effects prior to or during strike activity, e.g. more defective products

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Economic Conditions General economic conditions also affect whether a strike or lockout occurs • High unemployment rates negatively affect union members’ willingness to strike if they perceive that other work opportunities are not readily available - This is particularly important if union members think that strike will be a long one •

The financial position of the employer or the industry affects the union’s perceptions of the employer’s ability to pay − These perceptions are balanced against the perceived likelihood of the strike action obtaining desired financial outcomes - E.g., if the union wants a wage increase but the employer is apparently unable to pay and a strike won’t change that, it is unlikely that striking will be perceived as productive - Strike could have a negative impact on union members if financial gains in the eventual collective agreement do not compensate for losses sustained during strike

•

The stage of the employer’s business cycle is influential − Strikes will not have a particularly large financial impact on the employer during slow times - E.g., workers at a ski resort would not have much financial impact on the employer by striking in summer but much more financial impact on the employer by striking in winter - Workers might also take into consideration any major events employer has planned and time strike threats or action to potentially affect those events (thus putting more pressure on the employer to concede)

Legislative Restrictions • Strikes sometimes occur in contravention of the law •

Most Canadian labour codes ban strikes during the term of a collective agreement, but Canada has a long history of these types of strikes

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•

Such strikes may occur spontaneously or may be planned and facilitated by union leaders - May be a spontaneous expression of dissatisfaction - May be planned/facilitated even though they are illegal

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In many jurisdictions, the ability of some public sector workers to strike is severely restricted or is banned

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Nevertheless, the public sector represents 20-30 percent of annual strike activity in Canada -

-

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Between 2011 and 2012, the rate of work stoppages in the public sector increased by 356.2%, in contrast to an increase of 14.7% in the private sector.

“No-strike” laws may restrict the ability of public sector union negotiators to push their demands, because government negotiators know union cannot strike or can only strike under limited circumstances These laws can also cause high levels of conflict in public sector negotiations since strikes cannot be used to express discontent

Bargaining Process Factors • Strikes and lockouts are sometimes used as a means of providing a break from bargaining • They can also be an emotional release for bargainers and the parties they represent - Time away from bargaining may reduce tension and give parties new energy and ideas when they return to bargaining - Union members can also express feelings through picketing and other public action - These are not primary reasons for striking but they can generate useful side effects •

A party can be pressured into accepting the other party’s demands by the mere threat of a strike or lockout - Strike or lockout does not necessarily have to happen for the other party to concede - If one party does not have the resources to withstand strike or lockout, the other party can use the threat of strike or lockout to make gains in bargaining without the strike or lockout ever actually happening

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How Does a Strike or Lockout Begin?

There are several general pre-conditions to a strike or lockout that are fairly consistent in federal and provincial labour law • A legal strike or lockout is that either can occur only during collective bargaining and when an existing collective agreement has expired − A strike that takes place during a collective agreement is known as a wildcat strike • Usually occurs in response to workplace event(s) • Employees walk off the job or do not show up for work, and may disregard union executive direction in doing so • Employer will usually apply to labour relations board for both a declaration that a strike is illegal and an order for strikers to return to work • Declaration can usually be obtained within a few hours so that the impact of a wildcat strike is minimal and workers return to work as soon as possible •

A legal strike must be authorized by a vote of the members of the bargaining unit - The vote authorizing strike action is known as the strike vote and is conducted by secret ballot - The vote is intended to ensure that union membership, not just the union executive or bargaining team, supports the idea of a strike

•

In most provinces, a majority vote (usually 50 percent + 1) is required for a strike mandate - Some provinces have specific rules determining who can participate in the strike vote and how a majority is to be calculated - In some provinces, the majority must be among the votes of all members of bargaining unit; in others, the majority must be only among those voting - Reasoning for stricter standard is that the strike should be supported by the majority of the bargaining unit, not just those who took the time to vote - Reasoning for looser standard is that unions are democratic organizations, and if some members choose not to participate in voting, that choice should not affect the outcome for those who did participate

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How Does a Strike or Lockout Begin?

• A vote in favour of a strike does not guarantee that a strike will occur - A vote in favour of strike action is used to support the union’s bargaining demands - Shows that union is willing to strike to achieve their desired outcomes - Bargaining after a successful strike vote can result in a collective agreement without a strike ever occurring - In some jurisdictions, strike mandate has a time limitation, and if that passes without a strike, union must hold another strike vote if it still wishes to have a strike mandate •

In some Canadian jurisdictions, parties must make use of third-party intervention before initiating a strike or lockout - The form of third-party intervention depends on the jurisdiction - Intervention can be in the form of a conciliator or a mediator - Reasoning behind third-party intervention is that strikes or lockouts can be damaging, so every effort should be made to avoid them - Third party’s role is to identify opportunities for settlement and help parties reach an agreement - If parties are committed to their positions strongly enough to consider a strike or lockout, a third party may not be able to overcome these major differences - Process of intervention may not be effective if it is imposed and parties are forced to sit through it

•

In several jurisdictions, the party initiating a strike or lockout must give notice to the other party of when the action will begin - Workplace arrangements must often be made in advance of a strike or lockout beginning because access to workplace will be limited - E.g., contents of workplace may have to be secured or removed - Employees may also want to remove personal belongings

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Most jurisdictions have legislation that restricts or forbids workers in essential services from striking

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Criteria used to define the occupations that are essential services vary between jurisdictions

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Workers are considered to be providing an essential service if their absence from the workplace would cause a threat to public safety or health - E.g., police officer, correctional officer, firefighter

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In public sector situations where strikes are restricted or forbidden there are usually provisions for resolution through third-party intervention

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Governments can use back-to-work legislation to end disputes

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Governments and the private sector can also use the courts to end strikes deemed illegal - Back-to-work legislation orders the strike to end and employees to return to work - Usually includes some provision for third-party intervention to resolve dispute leading to strike

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Back-to-work legislation can cause political problems for government - Governments in Canada used back-to-work legislation 62 times for public sector strikes between 1965 and 1993 - Passage of this legislation has the effect of ending the strike but it may cause other problems

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The government may appear heavy-handed, especially if the public supports the strikers - Public sector employees and/or the public may resent the government using its exceptional powers rather than constructively addressing disputes

•

In several Canadian jurisdictions, workers in some parts of the public sector must provide a designated minimum level of service during a strike - Health care is an example of one area where this often occurs - Numbers and types of employees required to maintain services are determined by legislation, by negotiation, or by third-party intervention

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What Happens When a Strike or Lockout Takes Place • Striking workers may seek employment elsewhere to supplement their strike pay - Strike pay: payment issued by the union to striking members to partially compensate for the loss of thier regular income - Workers do not perform their regular jobs, and employer usually cannot continue with business activities - Not illegal for striking workers to take jobs elsewhere •

Collective bargaining may or may not resume during a strike or lockout - Once strike or lockout starts having an economic impact, one or both parties may be motivated to return to bargaining, in order to resolve the dispute and minimize the economic pain it is suffering

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One party may refuse to return to the bargaining table due to pressure of a strike or lockout; may demand that strike or lockout end before it will return to bargaining

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Two major factors affect how a strike or lockout proceeds once it begins: - Picketing - The use of replacement workers

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Picketing • Most visible indication of a strike or lockout • Picketing union members walk around the perimeter of the employer's premises on a picket line, usually carrying signs - Picketers can also hand out information or talk to passers-by about the dispute •

Picketing serves two main functions: - Attempts to gain public support for striking or locked-out workers - Physically demonstrates (or creates) a lack of access to the workplace by publicizing the dispute - Discourages individuals from entering the employer’s premises - Workplace is closed to union members, but management staff may still be expected to attend work - Suppliers may bring materials and maintenance workers may still be required to perform jobs - Customers or clients may also attempt to enter workplace - Picket line is intended to hamper physical access to workplace and thus discourage these individuals

•

Attempting to regulate picketing can be complex −

− −

Supreme Court of Canada rulings indicate that the definition of “picketing” and restrictions on picketing activity must be carefully applied so as not to restrict union members’ freedom of expression The Supreme Court of Canada has determined that picketing is not an inherent right under the Charter of Rights and Freedoms Thus, reasonable limitations can be placed on picketing

• Labour relations boards must balance the rights of the various parties: - Workers must have the opportunity to promote their cause - Picketing is a means of doing this - Others should not be unduly constrained from conducting their regular business - E.g., non-union staff or suppliers

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Although each case has unique factors, there are some general guidelines: • Cases of Shared Premises - If the employer shares premises with businesses or organizations that are not directly involved with the dispute, the picketers must not interfere with their legitimate business activities - E.g., picket lines should not block a common doorway or entrance also used by non-striking employees or companies in the same building - Times of picketing and number of pickets can also be restricted so as not to interfere with other businesses •

Secondary Picketing - Picketers often appear at the “non-struck” premises of suppliers or at other premises of the employer’s business

Picketing • Purpose of secondary picketing is to restrict or curtail employer from using a secondary location to carry out work that would usually be done at the location of the strike or lockout - Employer may attempt to avoid effects of strike by moving work elsewhere •

Secondary picketing is also intended to hamper the employer’s ability to generate revenue - Secondary picketing is intended to make it difficult for the employer to conduct business with suppliers or in other locations

• For legal secondary picketing, the union must prove that the supplier or associate does business only or primarily with the employer involved in the strike or lockout - E.g., once-daily pickup or dropoff would probably not justify legal secondary picketing

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Picketing Compliance with the Law • The picketers, their supporters, the employer, and anyone else involved in the strike or lockout must act according to the law.

•

Destruction of property, physical violence, or intimidation of individuals entering or leaving the employer’s premises are not legal - Individuals undertaking these actions could be charged in civil or criminal court, as well as being penalized by the labour relations board - However, it can be difficult to determine when picket line behaviour becomes unacceptable - Behaviour that might otherwise just be forceful or rude could be perceived differently on a picket line - Authorities present may have to determine when behaviour becomes unacceptable and take action - Labour relations boards can also assess evidence and decide whether permanent intervention (e.g., cease-and-desist order) is warranted

Adherence to the Facts • Picket signs and information leaflets distributed by picketers must contain factual statements and must not be libellous - Libel = something untrue that would damage an individual’s reputation - E.g., saying employer is a liar or is corrupt could be libellous - Information on picket signs and in leaflets is usually factual, e.g., employer’s last offer, union’s last offer - Information can also request public support and give contact details for employer so public can express support for union directly to the employer

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Picketing • Some union members choose to cross their own union’s picket line or the picket line of another striking union - Usually because they do not agree with rationale for the strike •

Most unions consider this a serious offence - Particularly so if the picket line is one’s own union - Such actions undermine the unity of the strike and may weaken the strength of the union’s position at the bargaining table

• Unions may penalize members who cross picket lines - in extreme cases, the member may be expelled from the union •

The slang term for a person who crosses a picket line is a scab - This term is also used for replacement workers who are usually not union members, but they cross picket lines to enter employer’s premises -

Employer might be able to sell goods directly or to secondary sources e.g., distributors

Unions may also request that other union members undertake a boycott or a hot declaration - Boycott = not buying the employer’s goods or services - Idea of a boycott is to further reduce the employer’s revenue while the strike or lockout is in progress A hot declaration may be issued by a union or a labour federation • •

It may give other union members the right to refuse to handle the goods or engage the services of a company whose workers are on strike E.g., if company on strike attempts to place ads in unionized newspaper, production staff could refuse to accept, create, or print the ads Where it exists, the right of union members to honour a hot declaration is usually outlined in the collective agreement

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•

The success of any kind of boycott depends on the union’s ability to generate publicity - The union must be able to make others aware of the strike or the lockout and the associated boycott - Need to publicize what employer’s products or services could be tricky if e.g., employer sells under a variety of brand names - Boycott will only be successful if people refuse to buy employer’s products - Most labour federations strongly encourage members to honour boycotts - Boycott usually ends when strike or lockout ends - Ongoing boycott might be imposed if employer has a long history of poor labour relations

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Replacement Workers • One of the more controversial issues in Canadian labour law is whether the employer should be permitted to use or hire replacement workers − These are workers who carry out tasks usually performed by workers who are currently on strike Theoretical arguments in favour of permitting replacement workers: • The employer’s business should not be affected by the decision of the workers to withdraw their labour •

A prolonged shutdown or reduction in production could cause lasting harm to the business

•

If striking or locked-out workers are not banned from earning money from other sources, it is unfair to ban the employer from earning money during a strike or lockout

Replacement Workers Theoretical arguments against permitting replacement workers: • Giving the employer the ability to use replacement workers unduly favours the employer •

Workers’ withdrawal of labour will have no economic impact on employer if employer can use replacement workers

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•

The ability to replace striking workers removes any economic incentive for the employer to concede

•

The use of replacement workers creates a great potential for picket line violence - Replacement workers will be regularly confronting picketing union members when entering or leaving premises - The union members will likely be angry at the employer’s actions and attempt to stop the replacement workers from entering the workplace

•

B.C. and Quebec have the strongest restrictions on replacement workers −

-

−

Both these jurisdictions define replacement workers as those brought in to perform work once a strike or lockout begins, and also any workers hired after collective bargaining begins This provision prohibits employer from preparing for possible industrial action by hiring employees to replace unionized employees who would be absent during a strike or lockout

−

The Canada Labour Code restricts the employer’s ability to “stack” the workplace with additional workers prior to a strike or lockout

−

Workers brought in after collective bargaining begins are considered replacement workers only if they are hired or assigned to do the work of striking or locked-out employees

−

Manitoba does not allow replacement workers to be hired during a strike or lockout

With technological advances in the workplace such as email and Internet access, it is much easier for employers to use replacement workers if the workers do not need to be on site

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Replacement Workers • B.C. and Ontario forbid the use of professional strike breakers − These are individuals whose sole source of employment is replacing striking workers − These already trained individuals can be hired by an agency and they usually have specific skills so that an employer can resume production with minimal disruption •

Most jurisdictions in Canada even those who restrict replacement workers do not explicitly forbid managers from doing the work of union members during a strike or lockout - Managers are usually excluded from union membership and are in the workplace on an ongoing basis - Thus they are generally not considered replacement workers even if they do the work of striking union members • Some jurisdictions specify that managers can work in a location where the workers are on strike or locked out only if they worked at that location already - This discourages employers from stacking the workplace with managers from other locations during a strike or lockout •

Jurisdictions that restrict replacement workers have provisions for the maintenance of essential services which might require replacement workers - Replacement workers might be needed to keep essential services functioning - Legislation in these jurisdictions usually makes some distinction between work that generates revenue for the employer and work that contributes to maintaining required levels of essential services

•

Jurisdictions that allow the use of replacement workers generally specify what will happen to the replacement workers when a strike or lockout ends - This is needed so that it is clear who has the right to the job when regular work resumes − Most jurisdictions indicate that the worker on strike or locked out must be given priority over a replacement worker for the job when the dispute ends

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Alberta and Ontario allow striking employees to apply for reinstatement after a strike has lasted a certain length of time This is intended to allow employees to avoid the financial impact of an extended strike However, unions do not encourage their members to exercise this option, as it would weaken the support for the strike and increase employer’s ability to withstand the effect of strike action

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Ending a Strike or Lockout • A strike or lockout ends when: - The bargaining parties reach a collective agreement, or - One party chooses to cease its actions and, usually, return to bargaining •

The length of time it takes to reach either of these points depends on a number of factors - The most significant being each party’s ability to endure the economic impact of a strike or lockout

Ending a Strike or Lockout • The union’s ability to continue paying strike pay is an important factor - Unions usually have funds banked for this purpose - If strike is longer than union has budgeted for, union members may be dissatisfied with reduced or non-existent strike pay - If there is a parent union, it may be able to provide additional funds for strike pay - Strike pay is rarely the same amount as workers regular pay - Poorer/smaller unions may not be able to offer strike pay at all - The individual financial situations of the members and the amount of financial support the union is able to offer can strongly influence a strike’s duration •

If union members are easily able to find alternative work during a strike, the strike may last longer - If local unemployment rate is low, it may be easy to get other work

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Alternate sources of income may make it easier for union members to engage in a long strike However, this is somewhat dependent on individual union members and types of work available, e.g., older office workers may not want to take jobs involving hard physical labour

•

The employer - like the union - may have money set aside to offset the impact of a shutdown - Possibly in a contingency fund for that purpose • The employer may also have enough alternative sources of income to allow it to continue production or operations - This could include sufficient amounts of inventory on hand to continue sales or production - Employer loses money from reduced sales during a shutdown, but also saves money by not incurring regular operating costs - There may also be funds available from parent organization •

Whether the employer can use replacement workers also affects its ability to withstand a strike

Studies suggest that the use of replacement workers shortens the length of strikes •

A recent U.S. study suggests that pre-strike media attention significantly increases the duration of a strike - The study only analyzed strikes of more than 10,000 workers - Authors speculate that media attention causes negotiators to increase commitment to publicized bargaining positions and thus become less willing to compromise - Parties may also use media attention to increase their own bargaining power and to generate public sympathy, which can then intensify conflict during bargaining

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Ending a Strike or Lockout • If the majority of a bargaining unit accepts a proposed collective agreement in a ratification vote and a new collective agreement is signed, the strike formally ends The union and the employer will usually agree on the conditions governing the employees’ return to work − This usually includes setting a return-to-work deadline − This allows employees who have taken on other commitments (e.g., other jobs) time to end those commitments − Other issues might include how to deal with picketing-related disputes •

If the ratification vote fails, the union negotiating team must continue negotiating for an agreement more acceptable to its membership

•

The management team must return to the table if its stakeholders are not satisfied

•

The effects of a strike or lockout may last far beyond the formal ending - Strikes and lockouts are hostile events and generate strong emotional reactions - Resentments and conflicts may continue after return to work - Attitudes created during strike/lockout may influence how union members and management interact daily in the workplace - Residual hostility can also cause problems in future interactions e.g., grievance resolution or the next round of collective bargaining

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Putting Canada’s Strike Record in Context - Measuring the impact of a strike is challenging because there are different methods of assessing impact, and some information is difficult to collect - Counting frequency or duration of strikes or lockouts is easy, but averages may be skewed by a few very long strikes - Simple counts also do not always include e.g., number of workers involved and length of time they were affected - Also not easy to determine financial impact (e.g., lost sales) because it isn’t always clear what these would have been if strike or lockout hadn’t occurred - also hard to assign dollar values to intangibles e.g., goodwill and customer relationships •

The measure of strike and lockout activity that has been used most often in Canadian strike records is lost person-days − This is defined as the number of days of labour lost in a year because of industrial disputes − Calculated by multiplying the number of disputes by the total duration of disputes by the number of workers involved

•

Factors influencing work-stoppage data: - Unionization levels in Canada have increased steadily since strike and lockout data were first collected - Thus increases in the number of strikes and lockouts may partially reflect increases in numbers of unionized workers - The size of the workforce has also increased - More industrial disputes may reflect higher numbers of workers - Figures for some years have been inflated due to unusually long disputes or short disputes involving unusually large numbers of workers - E.g., one-day Canada-wide strike in 1976 inflated amount of strike activity but the overall figure of lost person-days for that year did not reflect the impact of the average strike or lockout

•

Strikes and lockouts have not represented a significant loss of working time in any recent period

•

Time lost to industrial disputes appears to be declining

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Other analyses indicate that average annual number of work stoppages and lost person-days in 1990s were half the rate they were in 1980s

Putting Canada’s Strike Record in Context • Canada may appear to be more strike-prone than other industrialized nations - This can be assessed by comparing data from other countries •

Comparing data on work stoppages in different countries is difficult - Different countries have different legislation regulating when and how strikes and lockouts can happen, different definitions, and different data collection methods - Some data rely on voluntary rather than mandatory reporting of industrial disputes - Some data include in the count of lost person-days workers who are not on strike themselves but who cannot work e.g., manufacturing workers who cannot work because raw materials supplier is on strike - Legislation governing strikes may differ between jurisdictions

•

Canada has fewer strikes than other industrialized nations, but Canadian strikes tend to be longer than strikes in other countries, which accounts for a relatively high number of lost workdays - Number of workers involved is not large in comparison to other countries - Canada does not count workers who are indirectly affected

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1. A union might undertake a rotating strike or a work-to-rule campaign in order to inconvenience the employer without causing employees to suffer the economic impact of a full-scale strike. A work-to-rule campaign may be an attractive action for unions because it does not involve any explicitly illegal action or extensive preparation. Instead, the union and/or the employees simply follow a very narrow and rigid interpretation of the existing collective agreement. Because the collective agreement is a legal document that both the union and the employer have accepted, it is difficult for the employer to accuse the employees of acting illegally, even though their actions may be causing inconvenience. A rotating strike may be an attractive action for unions because it only causes disadvantage to the employer in specific locations for short times, making it difficult for the employer to deal with the impact of the action. The impact of a rotating strike is particularly powerful if the union does not announce strike locations in advance, or only gives very short notice of which location will be affected when.

2. The individual factors that might determine whether a strike or lockout happens could include the willingness of the union members to undertake a strike; the amount of loyalty that union members have to the union; the level of solidarity among the union membership; the history or quality of the relationship between the parties; and events in past or current bargaining. Situational factors affecting the possibility of a strike or lockout might include economic factors such as unemployment rates and the employer’s current financial situation; legislative restrictions affecting whether or how strikes or lockouts can occur; and the intent of the parties in undertaking a strike or lockout (e.g., to pressure bargaining demands, or as a means of releasing tension).

3. A union might take a strike vote to support its bargaining demands, since support for a proposed strike would show the employer that the bargaining unit members are prepared to withdraw their labour to achieve their demands. The mere threat of a strike might be enough to persuade the employer to give in to the union’s demands, without a strike actually happening. It should be noted that in some Canadian jurisdictions a strike mandate is only valid for a specified time after the vote. If a union in one of these jurisdictions takes a strike vote and a strike does not occur within the designated time, the union must take another strike vote if it wishes to still have a valid strike mandate.

4. Requiring advance notice of a strike or a lockout gives both sides a chance to prepare for the limited access to the workplace that a strike or a lockout will cause.

The employer may need to move valuable or perishable goods to another, more accessible location. Union members may have personal items that they want to remove from the workplace.

5. Labour boards often have to make situation-specific rulings around picketing because of the unique factors involved in each strike or lockout. For example, the

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employer may have a single location or multiple locations, and these sites may or may not be shared with other tenants. These factors might affect where and how picketing can take place. The employer may also have different forms of business relationships with other companies or individuals, which may affect whether secondary picketing is permitted at those locations. The degree of hostility between the parties in the dispute may also determine whether the labour relations board may decide to restrict picketing or other behaviour that could be illegal or threatening.

6. The arguments for the use of replacement workers can be summarized as follows: • The employer’s business activities should not be affected by the decision of the workers to withdraw their labour.

• A prolonged partial or complete shutdown could cause lasting harm to the business.

• If workers are not banned from taking other employment while on strike, the employer should not be restricted in its ability to earn money during a strike.

The arguments against the use of replacement workers can be summarized as follows: • Allowing the employer to use replacement workers creates a severe imbalance in bargaining power, since any withdrawal of unionized labour will have no effect on the employer if it can continue to operate with replacement workers.

• Allowing the employer to replace striking workers and continue its business removes any economic incentive for the employer to concede to the union’s bargaining demands.

• There is potential for conflict and violence if replacement workers are crossing picket lines at the employer’s premises.

7. It is difficult to conduct meaningful comparisons of strike rates across industrialized nations because of differences in definitions and in data collection methods. Canada does not seem to have an excessively high number of strikes in comparison to other countries, but it does tend to have a comparatively high rate of workdays lost to strikes or lockouts. This could partly be because Canadian strikes appear to be longer than strikes in other countries.

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TEACHING NOTES FOR CHAPTER 9 CASES

CASE 9-1 This case is based on Simon Fraser University and Teaching Support Staff Union (BC Labour Relations Board No. B20/2013). Decision date January 17, 2013.

The labour relations board dismissed the union’s complaint, for the following reasons: -

The emails to the union’s members did not contain any expressed or implied threats of consequences if members refused to cross a picket line.

-

Although a “reasonable employee” might be uncomfortable with the employer’s request, or might not want to provide information about their support for a strike or picket line directly and individually to the employer, there was no evidence of employees being concerned about negative consequences for their careers or employment if they said they would not cross a picket line.

-

The inquiry involved a picket line rumoured to be set up by another union. The board stated that it would have likely found the employer in violation of the relevant labour legislation if the employer had been inquiring about the union members’ plans to honour their own union’s picket line. However, since the inquiry was about plans to honour another union’s picket line, the request was reasonable in the context of preparing for work interruptions as a result of the picketing.

Suggested Discussion Questions for Case 9-1 1. What circumstances might justify an employer asking employees about their intentions if a labour disruption is anticipated?

2. In many workplaces, there are employees in what has been called “precarious employment”, e.g. temporary, limited-term contract, or part-time work. Do you think those employees might react differently than permanent or full-time employees to employer requests? Is an employer obliged to consider any such differences in status when communicating with employees?

3. What operational issues might an employer need to deal with if a picket line is set up at the workplace?

4. If you were the labour board in this case, what would you decide?

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CASE 9-2 This case is based on North Shore Winter Club and Canadian Union of Public Employees Local 389 (BC Labour Relations Board No. B114/2013). Decision date May 31, 2013.

The labour relations board upheld both of the union’s complaints. It ordered that the employer cease and desist using any person “employed, engaged or supplied to the employer by another person” to perform bargaining unit work during the lockout, until a collective agreement was reached. The board defined that work as including lawn mowing and trimming. It also ordered that the employer cease using Guthrie to perform work during that same period. However, it declined to award damages or to appoint an industrial relations officer.

The board’s reasoning in the first situation was: -

The standard for determining whether the work was being done by replacement workers was whether the work would have been performed by an employee but for the labour dispute.

-

The employer had contracted out grounds maintenance work in the past, but the evidence indicated that the work did not include lawn mowing or trimming.

-

The board acknowledged that the employer had previously used outside contractors to perform bargaining unit work when bargaining unit members were unable to perform the work. However, the board stated that such situations were caused by employees being sick or absent, and as such it did not set a precedent which allowed the employer to use outside contractors during a labour dispute.

The board’s reasoning in the second situation was: -

The employer did not deny the union’s allegations that Guthrie was performing work usually done by bargaining unit members (i.e. driving the Zamboni), and there was evidence submitted to the board which confirmed Guthrie’s activities on the club premises.

-

However, there was conflicting evidence about Guthrie’s employment status prior to the lockout. The board’s duty in such situations is to make a decision based on the “balance of probabilities” standard.

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-

Using that standard, and considering the lack of additional evidence to verify Guthrie’s work hours on the employer’s spreadsheet, Guthrie was not working for the employer on a continuous basis prior to the date of the notice to commence collective bargaining. As such, Guthrie’s employment on May 12 was as a replacement worker.

The board declined to award financial damages to the union. The board stated it did not feel that the employer’s actions had strongly diminished the union’s bargaining power, or that the employer’s breaches of the labour relations legislation had been so extensive and continuous that a financial penalty was warranted as a punishment or a deterrent.

However, the board noted that the employer’s actions that were the subject of this complaint would be taken into account in determining remedies if it found in the future that the employer had breached the legislation.

The board declined to appoint an industrial relations officer for the investigation as requested by the union, because it did not feel that an “open-ended investigation” was warranted based on the evidence presented in this case. However, the board noted that if the union found further evidence of the employer breaching the labour relations legislation, the union could apply for a “more focused” investigation such as a payroll audit.

Suggested Discussion Questions for Case 9-2 1) Some provincial labour codes in Canada permit the use of replacement workers during a strike or lockout; others forbid the use of replacement workers in such circumstances. What is the reasoning for and against allowing an employer to use replacement workers during a labour dispute?

2) In many unionized workplaces, some workplace tasks are contracted to outside organizations or workers. What are the arguments for and against contracting out work when a workplace is unionized?

3) In this case, the workplace includes both unionized and non-unionized employees. What issues would the union and the employer have to consider in their actions toward the non-unionized employees during a strike or lockout?

4) If you were the labour relations board in this case, what would you decide?

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 9 TOPICS

Strikes and Lockouts Some information on strikes and lockouts is available from the Human Resources and Skills Development Canada website. http://www.hrsdc.gc.ca/eng/labour/labour_relations/info_analysis/work_stoppages/index .shtml The Canada Industrial Relations Board’s FAQs includes answers to questions such as “What is a strike or lockout?” http://www.cirb-ccri.gc.ca/eic/site/047.nsf/eng/00104.html News on strikes and lockouts around the world as well as larger political issues; maintained by Labour and Society International for the international trade union movement. http://www.labourstart.org/ Links to news about strikes and lockouts around the globe. http://www.xpdnc.com/links/strikes.html

Statistics on Strikes and Lockouts Most provinces and all three territories have statistical bureaus that are available on the Web: B.C.: http://www.bcstats.gov.bc.ca Newfoundland and Labrador: http://www.stats.gov.nl.ca/statistics/ Nova Scotia: http://www.novascotia.ca/finance/statistics/default.asp Ontario: http://www.ontario.ca/en/communities/economy/ONT03_020921.html Prince Edward Island: http://www.gov.pe.ca/infopei/index.php3 Quebec (English version): http://www.stat.gouv.qc.ca/default_an.html Saskatchewan: http://www.stats.gov.sk.ca/ Northwest Territories: http://www.stats.gov.nt.ca/ Nunavut: http://www.eia.gov.nu.ca/stats/ Yukon: http://www.gov.yk.ca/depts/eco/stats/index.html

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International Statistical Bureaus The U.S. Bureau of Labour Statistics. http://www.bls.gov/ Links to international statistical bureaus. http://www.statcan.gc.ca/eng/reference/other-autres-eng A wealth of international statistical sites, maintained by the University of Florida's Department of Statistics. http://www.stat.ufl.edu/vlib/statistics.html Boycotts and Hot Declarations An information page on the latest news and updates from the Ontario Federation of Labour http://ofl.ca/index.php/category/solidarity/labour/ The B.C. Federation of Labour’s list of industrial actions, hot declarations and boycotted employers in B.C. and the rest of North America. The list is divided into: “Strikes and Lockouts, “Settled,” “Hot Edicts,” “Boycotts,” and “Do Not Patronize.” http://bcfed.ca/disputes

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CHAPTER 10 Third-Party Intervention during Negotiations

LECTURE NOTES

Chapter 10 Objectives At the end of this chapter, you should be able to: • Explain why a third party would be used to help negotiators reach a collective agreement • Understand the difference between conciliation, mediation, and arbitration • Outline the conciliation process • Define interest arbitration and understand how it is used • Explain the role of mediators • Discuss industrial inquiry commissions • Understand the purpose of a disputes inquiry board

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Third-Party Intervention during Negotiations • Most Canadian jurisdictions provide for various forms of third-party intervention in collective bargaining − Third parties are brought into the bargaining process to help parties resolve their differences without using a strike or lockout − Ideally, a third party is perceived as neutral by both negotiating teams - If so, they can provide suggestions without being perceived as promoting the interests of only one side − Third parties may be introduced into the bargaining process by the government to convey its interest in a speedy resolution − The third party has not been involved in the process from the beginning and therefore may be able to provide a different outlook

Types of Third-Party Intervention • The main types of third-party intervention used in Canadian jurisdictions are: - Conciliation - Mediation - Arbitration • The use of these types of intervention may be voluntary or mandatory • Three less common types of third-party intervention: - Mediation-arbitration - Industrial inquiry commissions - Dispute-resolution boards Each type of intervention and its use will be described individually

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Conciliation • In all Canadian jurisdictions except B.C. and Alberta, conciliation is the first step in attempting to resolve an impasse in negotiations •

The conciliator’s role is to assess the parties' positions and the reasons for their inability to reach an agreement − The conciliator then submits a report of his or her findings to the provincial or federal minister of labour, to the parties, or to both

•

The conciliator does not participate in bargaining sessions or impose an agreement

•

In some jurisdictions, the conciliator’s report must be completed and submitted to the minister of labour before a strike or lockout can occur

•

In jurisdictions where conciliation is voluntary, the parties often undertake conciliation on their own initiative - Parties may choose to do this before using, or being forced to use, other forms of third-party intervention that reduces their control over their bargaining outcomes

- The conciliator can be an individual conciliation officer, or, in the federal jurisdiction, a conciliation commission - A conciliation officer or commissioner is usually a government employee, appointed at either the request of the parties or by the minister of labour •

Conciliation begins with the conciliation officer meeting with the parties and investigating the issues in dispute - Officer will review the items have been settled, what is still being negotiated, and determine the parties’ positions on unresolved items - If conciliation is not voluntary, the officer will compile a report to the minister of labour - If conciliation has not been ordered by the government, the report will be given directly to the parties

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•

A minister of labour may use conciliation as a way to bring public opinion into the dispute − The parties may be motivated to settle their dispute to avoid embarrassment or damage to their public image - An order for conciliation may be made with the deliberate intent to create this sort of pressure - In this situation, the minister of labour will likely also specify that the report be made public - Thus the parties know that the details of their dispute will be publicized if they cannot reach an agreement themselves - Parties might experience a negative public reaction which could have a longterm effect - Parties may agree to accept recommendations, even if they do not completely agree with them, in order to preserve their reputations

Conciliation • In several Canadian jurisdictions, if the report of the conciliation officer fails to produce an agreement, the minister of labour may appoint a tripartite conciliation board •

This board is made up of: - An individual appointed by the employer - An individual appointed by the union - A neutral third party, either appointed jointly by the parties or by an external authority

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Conciliation • The board will hold a formal hearing at which both parties present their positions - conciliation officers or commissions usually do not hold a hearing •

Shortly after the hearing, the board will make its recommendations on the solutions to the dispute to the minister of labour

• If parties agree in advance, board recommendations can be binding - The parties agree to accept the board’s recommendations as a resolution of their dispute •

Conciliation is often used in situations involving essential services - This occurs in the federal, provincial, and regional or municipal public service - Conciliation may delay a strike or a lockout, or, if binding, can avoid a strike or a lockout altogether

Conciliation • Conciliation rarely resolves disputes −

−

The parties may perceive conciliation only as the first step taken before using more intensive actions – such as a strike or lockout – or before they can use more directly interventionist forms of third-party involvement Because conciliation usually happens early in the bargaining process, seldom have the parties reached the stage where they are prepared to compromise

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−

One study indicated that the use of conciliation did not significantly reduce either the number or the length of strikes - A two-stage conciliation process with a two-week “cooling off” period in between the stages was somewhat more effective in reducing strike activity than a single-step process - Conciliation was also not significantly effective in reducing the cost of strikes to workers and to the employer

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Mediation • Mediation is a more intensive form of third-party intervention than conciliation − In most jurisdictions a mediator is brought in on the agreement of both parties •

The mediator usually participates in the actual bargaining process The mediator meets jointly and separately with the parties during bargaining sessions

−

•

•

In most Canadian jurisdictions, a mediator is appointed at the request of one or both parties − A mediator can also be appointed on the initiative of the minister of labour In all jurisdictions except P.E.I., the mediator’s recommendations are not binding In P.E.I., mediator’s recommendations can be binding if both parties agree to this prior to the start of mediation

−

•

Generally, mediators are chosen by the labour relations board or the ministry of labour - Mediators usually have experience as negotiators, lawyers, or professors - Mediators must have the trust of the parties - The cost of using a government-appointed mediator is usually paid for by the government agency that makes the appointment

• Mediator does not need to be a government employee •

A mediator investigates a dispute in a more proactive way than a conciliator − The mediator attends bargaining sessions and observes the teams in action

•

The mediator will listen to each side’s position to attempt to identify where differences exist

•

He or she will then suggest possible resolutions to the parties - These suggestions can be made either privately or jointly depending on which the mediator feels would be most effective

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•

The suggestions are not binding so the parties are under no obligation to accept them

At the conclusion of the mediation process the mediator will provide a report that may include recommended terms of settlement

• These recommendations are often persuasive and of real use in reaching a collective agreement - The mediator’s suggestions tend to be more persuasive than the conciliator’s because the mediator is more closely involved in bargaining - The mediator’s suggestions are also usually more realistic because the mediator has greater familiarity with both the parties and the issues - Parties may also treat the mediator’s recommendations more seriously because of the parties’ close contact with the mediator

Mediation • In Alberta and P.E.I., a mediator or conciliator must be appointed prior to the start of a legal strike or lockout •

In New Brunswick, Newfoundland, and Nova Scotia, a conciliator or conciliation board must be appointed before a legal strike or lockout can occur

•

Mediators and conciliators are not required to complete their work before a strike or lockout begins

•

They will usually book out of the negotiations before the strike or lockout occurs

•

Booking out for mediators means that the mediator stops trying to help the parties overcome their differences and formally leaves the proceedings - Booking out occurs either at the request of the parties or by the mediator’s own initiative; the latter can happen if the mediator is unable to resolve disputes or feels that the parties have no common ground on which to reach an agreement

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Special Mediation • In B.C., Saskatchewan, and Quebec, the minister of labour may appoint a special mediator at any time during collective bargaining − The special mediator often has expanded protection, privileges, and powers − Much of the special mediator’s authority is determined by the terms of each individual appointment - This is one difference between special mediation and “regular” mediation - A special mediator may be requested to submit a report to the minister of labour, to the parties involved, or both; the minister may give this report the same consideration as a report from a conciliator

Fact Finding • In B.C., a labour relations board official can appoint a fact finder to meet with the parties •

The fact finder reports on issues agreed to and those in dispute and may include other relevant findings − Report can include findings on any matter considered relevant to reaching a collective agreement

•

Copies of the fact finder’s report are given to the parties and may be made public

•

The fact finder, while technically a mediator, serves a function similar to that of a conciliator

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Interest Arbitration • Interest arbitration is the most intensive and invasive form of third-party intervention • The arbitrator establishes some or all of the terms and conditions of the collective agreement - If the parties are unable to agree on solutions, the arbitrator creates solutions that can then become part of the collective agreement - Interest arbitration is distinct from rights or grievance arbitration because it occurs while the collective agreement is being negotiated, whereas rights arbitration is used to settle disputes once the agreement is in place •

Not all Canadian jurisdictions make formal provisions for interest arbitration - However, rights or grievance arbitration is provided by legislation in all jurisdictions

•

Interest arbitration can still be used voluntarily during collective bargaining - This can be done if both parties agree to its use and can agree on an arbitrator

•

In most jurisdictions, an arbitrator can be appointed to create a collective agreement where the union is newly certified and the parties have been unable to settle on a first collective agreement

•

The arbitrator’s decision is binding - Decision settles the disputes and cannot be appealed (except under limited circumstances, described in Ch. 11)

•

The process commences when one or both of the parties request that the minister of labour appoint an arbitrator - Arbitrators usually have experience similar to that of mediators

• •

The minister will appoint either an individual or a tripartite panel A formal hearing is held

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Purpose of the hearing is to give arbitrator(s) an opportunity to investigate parties’ positions and to gather information on the dispute Hearing conducted like a court session, with arbitrator(s) presiding and witnesses giving testimony Once hearing is completed, arbitrator(s) consider evidence and issue a binding decision

Interest Arbitration • In some jurisdictions, legislation provides criteria that guide interest arbitrators •

However, in the majority of Canadian jurisdictions, where criteria are not mandated, interest arbitrators traditionally use final offer selection - If parties agree, the arbitrator can create terms based on his or her judgement and not on the parties’ offers

•

There are two types of final offer selection: - Total-package final offer selection - Item-by-item final offer selection

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Total-Package Final Offer Selection • Each party presents the interest arbitrator with a total package of offers covering outstanding issues - Package includes desired solutions to the issues and suggested terms for the collective agreement • During the arbitration hearing, each party presents evidence to convince the arbitrator of the superiority of its package • The interest arbitrator then selects one party’s total package • The selected package forms part or all of the terms and conditions of the collective agreement - If parties have previously agreed on settlements for other items, those agreements will be included in the collective agreement, and the arbitrator’s decision will only affect items with no settlement - Proposals in the package that is not chosen will not be included in collective agreement •

The advantage of using this selection is that it encourages the parties to submit realistic suggestions • They should not submit anything they do not want to see in the final collective agreement • The disadvantage is that it establishes a win-lose scenario - Parties know that the arbitrator has to agree with their suggestions in order to accept them - Also, parties should not suggest terms that they are not prepared to live with, in case those terms are chosen by arbitrator - Total package final offer selection was used in the Nova Scotia nurses’ strike in 2001 − The arbitrator chose the nurses’ proposal, but also outlined in her report what she perceived to be the deficiencies in the total-package solution - She noted that the employer might compensate for higher wage costs by giving nurses’ duties to lower-paid staff - She also noted that the process did not bring parties closer together, and that unions never would have accepted the employer’s offer if it had been presented in bargaining

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More recently, in 2011, the federal government ended a strike by unionized employees at Canada Post by passing legislation which included the use of total-package final offer selection to arbitrate a collective agreement.

Item-by-Item Final Offer Selection • Each party submits its package of proposals and the arbitrator selects a proposal for each outstanding item •

The interest arbitrator can select items from either side's proposals

•

The resulting collective agreement could contain all, some, or none of the proposals made by a particular side - As with the total-package selection, offers need to be realistic in order to enhance their chance of being chosen - As with the total-package selection, if the agreement has already been reached on some items, these agreements will be incorporated into the collective agreement, and the arbitrator will only select specific remaining items -

Advantage - There is less chance that a particular side will have all of its suggestions ignored Disadvantage - Neither party is likely to be completely satisfied The agreement may not integrate both sides’ suggestions in a way that could satisfy both parties Suggestions on items that one party may feel strongly about could still not be chosen

•

In several Canadian jurisdictions, interest arbitration is compulsory when resolving bargaining disputes − This is in place to avoid strikes and lockouts − If parties can’t agree to a solution, they must use arbitration instead of striking or locking out

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Interest arbitration is also used as a “last resort” form of third-party intervention

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It can be used as a third step when neither conciliation nor mediation has been successful

Interest Arbitration • Interest arbitration does result in a completed agreement and ensures some degree of workplace stability • But there may be a reduction in the parties’ desire to resolve outstanding issues on their own – known as the chilling effect - Parties may not be seriously committed to bargaining because they know a third party will settle disputes for them •

There is also the narcotic effect - The parties may become addicted to the habitual use of compulsory conciliation or interest arbitration and over time will lose the ability to resolve disputes on their own

•

Studies have been conducted regarding the existence of the narcotic effect; however, results vary and appear contradictory - After periods of increasing use of arbitration, there was a slight decrease in the likelihood of arbitration being used in an individual set of negotiations - This indicates that having previous examples of arbitration use does not always predispose parties to use arbitration themselves

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Mediation/Arbitration • In some Canadian jurisdictions, parties can use mediation-arbitration (medarb) •

In med-arb, a third party enters the bargaining process in the role of a mediator.

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If the issues cannot be resolved through mediation, the third party becomes an arbitrator and chooses the conditions of the collective agreement

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Med-arb advantages: - Guarantees that bargaining disputes will be resolved - Helps to avoid time delays that may occur if arbitration is implemented after a failed mediation - Promotes higher-quality solutions since the arbitrator is more closely acquainted with the parties and situations in dispute

•

However, med-arb is not widely used Parties may not be as cooperative with a mediator whom they know may ultimately determine the content of their collective agreement − Since the mediation part of med-arb tends to be ineffectual, med-arb essentially functions as an extra-lengthy form of arbitration −

• An arbitrator who has been involved in a dispute as a mediator may be less objective than an arbitrator who enters at a later phase •

Even if the mediator-arbitrator tries to be neutral, the parties may distrust the final results

Using Conciliation, Mediation, or Arbitration • Several jurisdictions require parties to submit to conciliation , then mediation, and then arbitration if the disputes are not resolved • This progression encourages the parties to resolve their own disputes and gives them third-party assistance to do so

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•

However, in some Canadian jurisdictions, the parties may choose other forms of third-party intervention

Third-Party Intervention in Private Sector Bargaining Disputes • Conciliation and arbitration are seldom used in private sector disputes, except where required by law •

Management and unions in this sector prefer mediation Mediation gives the parties practical assistance in resolving their disagreements while allowing them to retain control over details of the pending agreement − Private sector bargainers can use a mediator supplied by the labour relations board or ministry of labour, or can privately choose their own mediator −

•

Most Canadian jurisdictions require that public sector bargaining disputes be subject to some form of third-party intervention − This is because of the potential impact of work stoppages in the public sector,

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In some jurisdictions, the parties are required to proceed immediately to arbitration if a dispute arises

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In others, arbitration is used only if conciliation and mediation have been unsuccessful

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• •

B.C. is the only jurisdiction in Canada that does not require binding conciliation or arbitration in the public sector if regular conciliation does not succeed If public sector employers and unions choose arbitration, they are free to create their own decision criteria for the arbitrator to follow

Other Forms of Intervention in the Bargaining Process • Three methods of resolving bargaining disputes do not always actively involve a third party in the bargaining process: - Final Offer Votes - Industrial Inquiry Commissions - Disputes Inquiry Boards

Final Offer Votes • Most Canadian labour relations legislation provides for a final offer vote to be taken during a strike or lockout −

The minister of labour may order that bargaining unit members or the employers in an employers’ association be given an opportunity to vote secretly on the party's last offer

−

If the majority of the employees in the bargaining unit or the majority of the employers in the employers’ organization accept the offer, then the parties must conclude a collective agreement incorporating the terms of that offer

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There are two reasons for making a final offer vote available: - To determine whether a party’s offer is acceptable to the constituents represented by the other party’s negotiating team - To provide another opportunity for bargaining disputes to be resolved before a strike or lockout happens (or before a third party is brought in)

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Industrial Inquiry Commission • All Canadian jurisdictions, except New Brunswick and Saskatchewan, provide for the appointment of an industrial inquiry commission to investigate bargaining disputes •

The appointment of an industrial inquiry commission is a relatively rare event

•

When an industrial inquiry commission is created, the minister of labour provides it with a statement of the matters in dispute that are to be investigated

Industrial Inquiry Commission • If the parties do not settle the matters in dispute within a certain time (usually 14 days), the commission must report the results of its investigation, along with its recommendations for settlement, to the minister of labour − While industrial inquiry commissions are usually appointed in relation to a bargaining dispute, a strike, or a lockout, most legislation permits commissions to be appointed for any situation that the minister of labour or the parties consider appropriate

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Disputes Inquiry Board • In Alberta and Ontario, the minister of labour can establish a disputes inquiry board during a legal strike or lockout •

This board is usually composed of three individuals who gather evidence about a dispute

•

Like industrial inquiry commissions, disputes inquiry boards are appointed relatively infrequently

Disputes Inquiry Board • The board usually holds a formal hearing at which the employer and the union both present oral and written evidence •

The board then presents recommendations for the resolution of all outstanding issues to the minister

•

In Ontario, the minister is then free to act on the recommendations as he or she sees fit

•

In Alberta, if the recommendations are not accepted by the representatives of one side, that side’s members are given the opportunity to vote on the recommendations this vote is similar to a final offer vote

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Disputes Inquiry Board • If a majority votes to accept the recommendations, they are considered binding and incorporated into the terms of the collective agreement − Unlike an industrial inquiry commission, a disputes inquiry board is specifically charged with investigating disputes that have led to a strike or lockout − The recommendations of a disputes inquiry board have more formal weight than the recommendations of an industrial inquiry commission

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1. In conciliation, the conciliator assesses the positions of the parties and the reasons for their inability to reach agreement, and submits a report to the minister of labour, the parties, or both. Conciliation is usually the first type of third-party intervention to be used in resolving bargaining disputes. The rationale for using the conciliation process is that it is a relatively non-intrusive form of third-party intervention that allows the bargaining parties to retain control over the process and the outcomes of bargaining. Other forms of third-party intervention actually involve the third party in negotiations or settlements. Conciliation can also use public opinion as a form of pressure for the parties to reach an agreement. The parties know that if the details of their dispute are publicized, they may suffer embarrassment or damage to their image. Thus they may cooperate with the conciliation process – even if they do not completely agree with the resulting recommendations – as a way of preserving their reputations.

2. Interest arbitration is a form of third-party intervention in which the arbitrator (or arbitration board) investigates the issues in dispute and makes a binding decision on the issues. The arbitrator’s decision then becomes part or all of the collective agreement. Interest arbitration is usually used as the final type of third-party intervention, and is often employed when other forms of third-party intervention have failed to resolve bargaining disputes. It is often used in the public sector, especially when a strike or lockout is prohibited (e.g., for bargaining disputes involving occupations that are identified as essential services). It can also be used in private sector bargaining disputes if both parties agree to it.

3. Interest arbitration is used to settle disputes during negotiations for a collective agreement. Grievance arbitration, also called rights arbitration, is used to settle disputes after negotiation, when a collective agreement has been achieved and implemented. Grievance arbitration is used if disputes arise over the application or interpretation of the collective agreement while the agreement is in effect.

4. The mediation process begins with the appointment of a mediator. In most Canadian jurisdictions, this can be done by order of the minister of labour or by the request of the parties. Once the mediator is appointed, he or she observes bargaining sessions and attempts to identify factors in the bargaining that may be preventing the parties from reaching an agreement. He or she also usually meets with the parties (individually or collectively), and gathers information on the issues in dispute. He or she then makes recommendations for potential solutions to the dispute. The mediator’s recommendations are not binding.

5. A fact finder, as described in British Columbia’s labour legislation, meets with the bargaining parties, investigates the facts of the dispute, and makes a report to the associate chair of the mediation division of the labour relations board. The associate chair provides the parties with a copy of the report and may also make the report

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public. Thus a fact finder’s actions are similar to those of a mediator, but the fact finder’s role is more like that of a conciliator.

6. A final offer vote can be ordered during a strike or a lockout. The minister of labour orders the vote, usually at the request of one of the parties. The bargaining unit members or the employers in an employers’ council are given the other party’s final offer on all issues in dispute and asked to accept or reject the offer. If the offer is accepted by a majority of those voting, then the parties must conclude a collective agreement incorporating that offer.

7. The advantage of total-package final offer selection is that it encourages the parties to submit realistic offers to the arbitrator who will be making the selection. An arbitrator may not want to choose offers that are unreasonable or unworkable. The parties should also not submit offers they would not be willing to work with. The disadvantage of total-package final offer selection is that because one complete offer is chosen, one party wins and one party loses. The party whose offer is not selected will not have its suggestions in the collective agreement, and thus that party may be resentful and not committed to making the collective agreement work.

The advantage of item-by-item final offer selection is that the arbitrator can, if he or she chooses, incorporate suggestions from each party’s package of proposals. This avoids the “win-lose” scenario. The disadvantage of item-by-item final offer selection is that the resulting collective agreement is not an integrated document; instead, it is an arbitrary collection of choices between the parties’ final offers. Thus, it is possible that neither party will be completely satisfied with the outcome.

8. In the private sector, the parties generally have the option of choosing their preferred method of third-party intervention, or whether to have third-party intervention at all.

The most common form of third-party intervention in the private sector is mediation, because it allows the parties to retain control over the contents of the eventual collective agreement. In the public sector, the required form of third-party intervention may depend on what point the parties are at in the bargaining process, and on the legislation in the relevant jurisdiction. In some jurisdictions, if there is a public sector bargaining dispute the parties must proceed directly to arbitration. In others, arbitration is used in public sector bargaining disputes only if conciliation and mediation have failed to resolve the dispute.

9. An industrial inquiry commission is established by the minister of labour, who provides it with a statement of the matters to be investigated. The commission usually has 14 days to conduct its investigation. If the parties do not settle their disputes on their own within that time, the commission must report the results of its investigation to the minister, along with recommendations for resolving the dispute.

Thus, an industrial inquiry commission is usually established to indicate to the parties that if they do not settle disputes on their own, the minister of labour will possibly become involved in resolving the dispute for them.

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A disputes inquiry board is established after a legal strike or lockout commences. Its mandate is to gather evidence about the dispute leading to the strike or lockout. The board usually holds a formal hearing into the dispute, after which it presents recommendations for resolution of the dispute to the minister of labour.

A disputes inquiry board differs from an industrial inquiry commission in that a disputes inquiry board is established in relation to a strike or lockout, whereas an industrial inquiry commission can be established at any time. The recommendations of a disputes inquiry board, however, can result in a vote of the parties to accept or reject the recommendations (in Alberta) or in the minister of labour acting on the recommendations (Ontario). The recommendations of an industrial inquiry commission have less formal weight than those of a disputes inquiry board.

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TEACHING NOTES FOR CHAPTER 10 CASE CASE 10-1 Airport Authority and Air Traffic Controllers Union This case is based on Nav Canada and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and Canadian Association of Operational Support Specialists, International Brotherhood of Electrical Workers, indexed as Nav Canada and CAW-Canada (101 CLRBR [2d]). Decision date January 24, 2003.

In this case, the board dismissed the employer’s request to have the outstanding bargaining issues referred to binding arbitration. The board’s reasoning was as follows: -

The board noted that the issue of the determination of the right to strike or to impose a lockout was still being resolved. This was partly because the board had not received the safety study which contained the information the board felt it needed to assess the potential impact of such actions. Thus, the board felt it would be wrong to refer issues to arbitration if there was still the possibility that the parties could exercise their right to a strike or lockout as a means to resolve a bargaining dispute.

-

The board also indicated its opinion that, in determinations of essential services, the parties know the situation best and know what activities should be continued to avoid endangering the public. Thus, it was important for the parties themselves to also agree on what they considered to be essential services. The board felt this had not been adequately addressed in this set of negotiations.

-

The board also noted that both parties were dissatisfied with the “essentially forced conclusion” of their previous collective agreement. It stated that using arbitration as a means to resolve this collective agreement, particularly when the possibility of using a strike or lockout still existed, would not resolve this dissatisfaction.

-

The board further commented that there seemed to be differing expectations between the employer and the employees about the effect that privatization would have on the employees’ rights. It suggested that negotiation was a better way than arbitration to resolve these differences.

-

The board also noted that the parties had met for informal bargaining in September, 2002, during which a proposal for resolution was made. However, that proposal had not been followed up because of the employer’s request for arbitration. The board indicated that bargaining was still possible to resolve the outstanding issues.

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The board indicated that it would continue the process of fully determining the parties’ right to a strike or a lockout. If the parties had still not reached an agreement once that determination was made, the board would then be willing to address further issues within the framework of the determination of appropriate service levels and the resulting scope of a strike or lockout.

Suggested Discussion Questions for Case 10-1 1. In this case, the length of time that negotiations have already taken has been raised as an issue. How do you think a labour relations board could determine whether the length of time for negotiations has been excessive?

2. Do you agree that the labour relations board should wait until the promised safety study is available before determining essential service levels, or do you feel that the union’s right to strike is being unduly restricted by this delay? Explain your reasoning.

3. If you were the labour relations board, what would you decide in this case?

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 10 TOPICS Mediation and Arbitration An Alberta Labour Relations Board FAQ on mediation and arbitration. http://alrb.gov.ab.ca/faq_mediation.html The mediation division of the B.C. Labour Relations Board. http://www.lrb.bc.ca/mediation/ The Conciliation and Mediation Branch of the Manitoba Ministry of Labour and Immigration. http://www.gov.mb.ca/labour/concilia/ The form to request preventive mediation from the Newfoundland and Labrador Labour Relations Agency. http://www.gov.nl.ca/lra/forms/request.html The Ontario Labour Relations Board’s guide to mediation. http://www.olrb.gov.on.ca/english/mediat.htm Final Offer Selection http://www.policearbitration.on.ca/content/english/process/arbitration/arbitration.html A description of how final offer selection is used in binding arbitration for bargaining disputes involving police in Ontario.

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CHAPTER 11 The Grievance Arbitration Process LECTURE NOTES

Chapter 11 Objectives At the end of this chapter, you should be able to: • Discuss and give examples of different types of grievances • Describe the grievance procedure • Define the duty of fair representation • Distinguish between the different standards of proof that are used in arbitration proceedings • Describe the purpose and role of an arbitrator • Explain alternatives to the arbitration process

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The Grievance Arbitration Process • Even the best negotiators find it difficult to create a perfect collective agreement for the conditions of the workplace - Parties have different concerns that may not be addressed in either the negotiations or the agreement - Collective agreement may simply be the most acceptable settlement, that both parties feel they can live with for the term of the agreement - Conditions inside and outside the workplace may change after the agreement has been signed • Strikes and lockouts are prohibited while a collective agreement is in effect - A strike or lockout can’t occur every time the union and the employer disagree - So strikes and lockouts can’t be used to settle disagreements during the term of the collective agreement •

There needs to be another way to settle disagreements about the interpretation, application, or administration of the terms in the agreement

•

Such disagreements are known as grievances and are settled through grievance arbitration

•

If both parties are satisfied with the outcome of a grievance procedure, that positive relationship can affect how the parties interact in other ways, including during the next round of bargaining

•

If the union and the employer experience conflict in dealing with grievances and come to distrust or dislike each other as a result, this negative relationship can make other forms of interaction more adversarial and less productive

•

Grievance arbitration is also referred to as rights arbitration − It is different from interest arbitration − Interest arbitration determines the terms and conditions of the collective agreement itself

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−

Interest arbitration is used during negotiations, while grievance arbitration is used after negotiations are over and the collective agreement is in place

•

Rights arbitration is concerned with the rights of the employer, the individual, and the union that arise from the interpretation, application, or administration of the collective agreement

•

These rights include: - The right of the employee to be treated fairly by the employer - The right of the employer to exercise control over its operations - The right of the union to act as the representative of the employees

The Grievance in the Workplace • Definition of a Grievance - The term “grievance” is used to describe an alleged violation of one or more of the terms of the collective agreement - Not every complaint arising in an employment relationship is considered a grievance - From the union’s perspective, a grievance occurs when the employer violates the collective agreement by either taking or failing to take a specific action - E.g., if the collective agreement said that shift work schedules must be posted two weeks in advance, and the employer posts schedules only one week in advance, then there is potential for a grievance •

It is far more common for a union to file a grievance against an employer - The employer controls the day to day operations of the workplace and thus has greater responsibility for carrying out the collective agreement, and more chance to be perceived as violating the agreement

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Types of Grievances There are four general types of workplace grievances: • Individual Grievance - If an action taken or not taken by the employer specifically affects an individual employee, the resulting grievance is called an individual grievance - Discipline is a common cause of individual grievances - E.g., if the employer suspends the employee for being late once, and the collective agreement says that suspension must be the final step in the disciplinary procedure, this could cause an individual grievance •

Group Grievance - If an employer’s action affects a number of employees in the same manner, then a group grievance may be filed - E.g., if the collective agreement outlines layoff criteria and the employer misapplies those criteria to the detriment of a particular group of employees, this could cause a group grievance

•

Continuing Grievance - Grievances involving an ongoing practice are called continuing grievances - E.g., if the employer refuses to consider seniority when scheduling shifts, and the collective agreement specifies seniority as a criterion, a continuing grievance could be filed

•

Policy Grievance - A policy grievance is filed by a union on behalf of all employees - A policy grievance alleges that an employer’s action or lack of action is a violation of the collective agreement that affects all employees - E.g., if the employer interprets holiday pay provisions a certain way, this could cause a policy grievance, since all employees have to receive holiday pay under employment standards law

•

Grievances are also classified according to which part of the collective agreement is allegedly violated

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Timeliness of a Grievance • A grievance commences when the affected individual or group knows, or ought to reasonably know, that an action (or lack of action) violates the collective agreement - This expectation implies that both the union and the employer need to be familiar with the contractual terms of the collective agreement and need to be aware of what might cause a grievance - Also implies that parties affected by an alleged violation have a responsibility to make their concerns known as soon as possible •

It is the responsibility of employees to notify the union immediately when they believe that the agreement has been violated

•

Problems may arise if the party filing a grievance has failed to quickly report the alleged violation - The employer may dismiss the grievance out of hand, saying the employees have, in effect, accepted the practice. This is sometimes referred to as the principle of past practice - This does not mean that employees have no right to complain about an alleged violation if they have not complained when it happened before, but their ability to make an effective complaint is reduced - Even if the grievance is considered, the lack of timeliness can affect the eventual remedy granted - E.g., the remedy might only compensate from the time when the complaint was made, not from the time when the practice began

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Filing the Grievance: Step One • The first step of the grievance process is the filing of a complaint about a violation of the collective agreement •

The person or party initiating the grievance is referred to as the grievor

•

The grievance is submitted orally or in writing

•

The grievance is submitted either to the immediate supervisor of the area where the violation is alleged to have occurred or to the human resources department

•

This informal steps provides the parties with an opportunity to settle without having to use the next more formal steps in the process

•

In most situations, the employee is expected to “grieve, then work” – i.e., continue regular work

•

The only generally recognized exception to this rule is when the alleged violation endangers the employee − E.g., if the collective agreement establishes safety rules and the supervisor orders the employee to ignore those rules, the employee can file a grievance *and* refuse to work

•

Most grievance procedures include time limits for each step in the procedure - usually 10 to 14 days

•

If the grievance is not resolved during the time limit after it is first filed, the grievance automatically proceeds to the next step - The purpose of these timelines is to ensure that grievances aren’t ignored in the hopes that the complainant will go away

•

Time limits can be waived by mutual consent - E.g., if a particular individual needs to give evidence and that individual is unavailable, parties could agree to waive the time limit until that individual is available

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Failure to obtain an agreement to waive time limit can result in the grievance being deemed abandoned

Formal Complaint and Investigation: Step Two • After a formal written grievance has been submitted, the union and employer investigate the facts surrounding the grievance - Investigation usually involves interviewing the grievor, the manager or supervisor allegedly involved in the grievance, and any witnesses; physical evidence (e.g., payroll records) can also be collected •

Once the investigations are complete, the shop steward or the grievance committee meets with management

•

Both sides present their evidence, along with a recounting of events in the first two steps of the procedure - A resolution is desirable at this point because it allows both the management and the grievance committee to retain control of the solution - Resolution at this step also reduces the likelihood of interference from higher levels of the union or the management

•

After discussing the evidence, the parties attempt to reach a mutually satisfactory solution

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The Final Attempt before Arbitration: Step Three • The union business agent, along with the representative of the local union, meets with senior management representatives - These parties usually meet regularly to discuss matters requiring input from both sides; step three grievances are usually “big” enough to be discussed at these meetings •

This is the last opportunity for the union and management to resolve the issue without the input of a third party

•

Failure to reach a satisfactory settlement at this step leads to the option of arbitration

•

The union may have to decide whether the grievance justifies proceeding to arbitration

•

If the union chooses not to proceed to arbitration and decides to abandon the grievance, it may be subject to a complaint from one or more of its members that it has abandoned its duty of fair representation

Duty of Fair Representation • The duty of fair representation means that a union (as well as an employers’ association) must not act toward its members in a manner that is: - Arbitrary – the union must not act in a way that is superficial, capricious, indifferent, or reckless with regard to the members’ interests - E.g., if the union had evidence that clearly indicated a violation of the collective agreement, but decided that the grievance was unjustified and refused to pursue it, it may have not upheld its duty of fair representation - Discriminatory – the union must not be influenced by factors such as race, religion, gender, and age - E.g., the union could not refuse to pursue grievance only because the grievor was female or Asian

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In bad faith – the union’s decisions must not be influenced by dishonesty, personal hostility, or revenge - This can be difficult to determine if there is a history of bad relationships between the union and the grievor - E.g., if the grievor has previously filed several unsuccessful grievances on the same issue, and the employer did not uphold these grievances, the union might refuse to pursue any further complaints on the same issue - Grievor might perceive this as the union trying to discourage a “troublemaker”, especially if he or she truly believes that an injustice has occurred

•

The labour relations board will decide whether to accept or reject such a complaint

•

If it accepts the complaint, the board will investigate, and if warranted, hold a hearing

•

If the board finds that the union did not fairly represent the member, it can order remedies to correct the situation

•

If the member’s complaint involves the union not taking a grievance to arbitration, the board can order that the union proceed with arbitration

If the grievance is not settled by the end of step three, the grievance may proceed to arbitration •

Grievance arbitration is designed to bring a final and conclusive resolution

•

Arbitration is the only step in the grievance procedure where both the union and the employer can have a decision imposed on them by a neutral third party

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Appointment of an Arbitrator • The initial selection of an individual arbitrator or an arbitration panel is left up to the parties − Because of the importance of mutual agreement, grievance arbitration is sometimes referred to as consensual adjudication • • •

The most common method of investigating the grievance is through a hearing The arbitrator's decision is binding

•

There are, however, limited circumstances under which an arbitrator's award can be appealed − (these circumstances will be discussed later)

•

The arbitrator can issue a subpoena to compel witnesses to testify at the hearing The arbitrator can also request relevant documentation relating to the dispute Most hearings are held near the location of the employer in a neutral facility, such as a hotel meeting room − It is important the location be perceived as neutral − E.g., if the employer let the arbitrator use a room on the employer’s premises, there might be concern about undue influence on the arbitrator

• •

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•

Costs of an Arbitration Hearing - costs include: - rental of hearing space - arbitrator’s fees and expenses - recording and transcribing the proceedings - any legal assistance the parties choose to hire

•

The union and employer each pay their own costs for the hearing - these include: - legal fees - lost time and wages for participants They each pay one-half of the arbitrator’s fees and other costs associated with the hearing. The arbitrator’s fee usually includes: - fee for conducting hearing - writing fee for time spent rendering an award - travel and per diem expenses

•

The average cost per side for a one-day hearing has been estimated at $22,000

The Arbitration Hearing Preliminary Issues • At the start of the hearing, the arbitrator confirms that both parties agree that he or she has jurisdiction under the collective agreement to hear the issue in dispute to determine an award •

This confirmation formally establishes that both parties accept the arbitrator’s jurisdiction and authority

•

This question is crucial, because under Canadian labour law the arbitrator is empowered to rule only on whether an interpretation, application, or administration of the collective agreement is correct

•

The arbitrator cannot rule on issues that are not part of the issues he or she is being asked to resolve

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Standard of Proof • The standard of proof used in arbitration is the balance of probabilities – the same as in civil proceedings •

The party alleging a violation must prove “on balance” that its version of the facts or events is true - The arbitrator may not be completely convinced that either party’s case is totally accurate or reasonable, but the “balance of probabilities” standard requires that the arbitrator accept the version of the case that is more likely to be accurate

•

The “balance of probabilities” standard is a more liberal standard of proof than the standard of beyond a reasonable doubt which is used in criminal proceedings - “Beyond a reasonable doubt” requires the party making the allegation to present enough evidence to remove any doubt about the justification of the allegation

•

The standard of clear and cogent evidence is usually used in offences such as theft of company property − It requires sufficient relevant evidence to convince an arbitrator that grievance is or is not justified − This is a stricter standard of proof than “balance of probabilities” but not as strict as “beyond a reasonable doubt”

Order of Proceeding • The party proceeding first calls its witnesses • The party calling a witness to the stand has the first opportunity to ask questions(direct examination) • The party presents its case through the witness's statements in response to questions •

When direct examination has concluded, the witness is cross-examined by the other party

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•

When cross-examination has concluded, the party that originally called the witness has a limited right of re-examination − During re-examination, the party is allowed to ask its witness further questions to clarify any point raised during cross-examination or any information not anticipated during direct examination

•

The procedure of examination, cross-examination, and re-examination is repeated for each witness

Order of Proceeding • The arbitrator may also question witnesses •

During examinations, the witnesses may be asked to present physical evidence such as letters, memos or personnel records - If evidence is presented, copies are given to the arbitrator and to the other parties - The arbitrator can rule on the admissibility of evidence and on any other procedural issues that may arise

•

Once all the evidence has been presented and all the witnesses have testified, the first party makes a closing statement

•

The second party then makes its closing argument - Closing statement follows a similar format to opening statement - The statement summarizes each party's perspective on issues, and evidence, and quotes decisions in other cases (if necessary) in support of its perspective

•

The first party has a limited right of reply - This is in response to the second party's closing argument

•

The arbitrator then formally adjourns the hearing

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Creating the Arbitration Award • After the hearing is adjourned, the arbitrator retires to write the arbitration award − Some collective agreements prescribe time limits within which the arbitration award must be written •

The award will usually contain: - A summary of the evidence - The arbitrator’s assessment of the evidence - The arbitrator’s verdict, with the reasons - The arbitrator’s prescribed remedy if the grievance is found to be legitimate - Any direction for the implementation of the remedy (e.g., a deadline by which the remedy must be carried out)

•

When the arbitration award is completed, it is sent to the union and the employer

•

When it is received, the grievance arbitration process formally concludes

•

Arbitration awards are designed to be final and binding on the union, its members, and the employer

•

It is possible to appeal an arbitration award in civil court

- Canadian labour legislation restricts the ability to appeal arbitration outcomes to reinforce that the arbitration award is the final resolution of the grievance - Appeals are limited to matters of general law •

Appeals may be permitted if one or both of the parties can show that: - The arbitrator was biased in some fashion - The arbitrator did not follow correct procedure while conducting the hearing - The arbitrator ruled on unrelated matters or on matters outside his or her jurisdiction

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The arbitrator fundamentally misunderstood or misinterpreted the language in the collective agreement

•

A successful appeal of an arbitrator’s award is very rare

•

Disagreeing with the award is not grounds for appeal - The parties enter into arbitration knowing that the arbitrator’s award is binding - By agreeing to the arbitration process, parties are implicitly expressing trust in the arbitrator’s skills and his/her ability to make decisions

- The possibility that the parties will be disappointed is countered by the fact that arbitration at least resolves the grievance – something the parties could not do themselves •

The party alleging an arbitrator’s error must produce fairly substantial and convincing evidence - Sometimes the party that disagrees with the award will attempt to appeal by alleging that the arbitrator committed one of the errors named above and that the error led to an incorrect ruling

•

If a party does not comply with the arbitrator’s award, the award may be filed in the provincial court registry and enforced as if it were a court decision

Problems with the Traditional Grievance Arbitration Process • Speed of the Process - The intent of the grievance arbitration process is to resolve workplace issues in a timely manner - In reality, grievances can take up to one year to be resolved - This time is measured from the point when the grievance is initially filed to when an arbitration award is issued •

There are a number of factors which cause delays: - Only a few well-known and busy arbitrators conduct most arbitration cases

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It is often difficult to arrange hearing dates Highly complex and legalistic issues can lengthen the process, and by the time an issue reaches arbitration it is generally a complex issue Selection of an arbitrator may take time when legal counsel is involved and/or when an arbitration board is selected An arbitration board may take longer to reach a decision than a single arbitrator The arbitrator must spend considerable time writing the decision

Formality and Legality of the Process • Grievance arbitration was designed to be informal - Assumption was that the employer and the union, who negotiated the agreement, would also be comfortable enforcing the administration of that agreement •

However, it is usually an adversarial process − Unions and employers have different and conflicting interests and each side usually retains lawyers

•

Involvement of lawyers - and most arbitrators are also lawyers - introduces unintended formality and legalism

•

Formalizing the process provides consistency, rigour, and fairness

•

However, this formality may intimidate witnesses - Some people may not be comfortable testifying in a court-like atmosphere - It is also questionable whether having a lawyer ensures that a party is better represented - one study of Canadian arbitrations looked at whether having lawyers involved affected the direction of the decision - results showed that legal representation makes it more likely that employees will win the arbitration, but legal representation gives no such advantage to employers - however, if both sides use legal representation, neither side increases its chances of gaining its desired outcome

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•

The arbitration award itself is often lengthy and legalistic − It can be written with a view to furthering labour relations policy. − Consequently, it is legalistic and results in one party winning and the other losing

•

Legalistic arbitration decisions can have a negative impact on the labourmanagement relationship − The parties may not understand the discussion in the award or agree with its reasoning

Cost-Effectiveness of the Process • Involvement of lawyers also increases costs - Costs also include e.g., hearing room, arbitrator’s fees, and less direct costs (lost production and labour, impact of an adversarial adjudication process on the parties and the workplace) •

The expenses involved in the process can discourage parties from pursuing valid grievances that could be resolved through arbitration - Unions and employers have to decide whether the value of the award is worth the cost of arbitration

•

If one party knows that dealing with a grievance will hurt the other party financially, that party may be tempted to file as many grievances as possible, regardless of their merit - Thus grievance procedure can be misused when one party has more resources than the other party - Richer party may deliberately provoke grievances to hurt poorer party who must bear the cost of pursuing the grievance

Despite these problems, the grievance arbitration process continues to play a major role in the Canadian labour relations system •

However, some jurisdictions are attempting to develop processes that complement or replace the grievance arbitration process

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•

These alternative processes can either be imposed by legislation or agreed to by the parties in negotiations

Alternatives to the Traditional Grievance Arbitration Process • Expedited arbitration - Designed to be faster, less expensive, less formal, and less legalistic than traditional arbitration process - Expedited arbitration processes created by legislation are known as statutory expedited arbitration processes - In jurisdictions where expedited arbitration is not provided by legislation, the parties to a grievance can use expedited arbitration to resolve the grievance if they both accept its use - Expedited arbitration processes that are voluntarily adopted by the parties are known as consensual expedited arbitration processes •

In most Canadian jurisdictions, either the union or management can refer a grievance to expedited arbitration

•

Where parties have agreed to establish expedited arbitration, the process usually includes a clear definition of which types of grievances will be handled in this manner

•

Expedited arbitration relies on specified timelines for holding the arbitration hearing and issuing the award

•

Most expedited arbitration processes involve a roster system for appointing arbitrators - This system helps arbitrators meet specified timelines by assigning arbitrators who are available to work within those timelines - In statutory processes, arbitrators report availability to the administrator, who then assigns them knowing when they are available and the amount of time a particular arbitration will require - In consensual processes, if the first arbitrator on the roster is not available for a needed time, the next available arbitrator on the roster is chosen

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•

Arbitration awards issued in expedited arbitrations are usually not considered to be precedent setting – e.g., the parties will not quote the award to support their arguments in other grievances - Parties will also not attempt to use the award to set a precedent for future grievances - Parties also do not usually quote other awards in their presentation or argument •

As a result, awards in expedited arbitrations are shorter, more fact based, and less legalistic

•

In most expedited arbitrations, the parties are encouraged not to use legal counsel, which reduces costs - Thus, the overall intent of the expedited arbitration process is to minimize delays and to reduce costs - However, expedited arbitration may only be appropriate for smaller or less complicated grievances

Grievance Mediation • Another alternative to the traditional grievance arbitration process is grievance mediation •

The mediator is often an industrial relations officer or settlement officer employed by the labour relations board

•

The mediator meets with the parties within 5 to 10 days of appointment to inquire into the grievance and to help the parties settle their differences

•

Grievance mediation is timely, cost-efficient, informal, and non-adversarial

•

It may help the parties develop effective long-term labour-relations by emphasizing mutual problem solving − The focus is on reaching a mutually acceptable agreement, rather than winning a rights dispute

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−

The employer and the union must be willing to work actively toward a mutually beneficial solution rather than being concerned with who wins and who loses

•

The information disclosed to the mediator is considered confidential - Any information disclosed to the mediator cannot be disclosed in any subsequent arbitration - This rule is to encourage parties to share information with the mediator without fearing the information could later be used against them

•

Because the mediator does not act as an arbitrator and thus does not make a formal decision, grievance mediation does not require a written award

Grievance Mediation • Different mediators bring different philosophical approaches to grievance mediation •

One approach, the settlement orientation, is often found in situations where grievance mediation is imposed by legislation - Mediation in these situations is not voluntary, so parties are pressured to reach a settlement and may be unhappy with the resulting agreement - However, this orientation does result in a settlement without having to go to arbitration

•

The transformative orientation focuses on teaching parties to resolve their own disagreements and to understand each other’s point of view - Thus parties gain better communication skills, and have a better longterm relationship - Transformative orientation results in higher satisfaction with the mediated result, but is often more time-consuming

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Mediation-Arbitration • Another alternative is a combination of mediation and arbitration known as mediation-arbitration, or med-arb - This is similar to the med-arb process used for resolving disputes during collective bargaining - In most jurisdictions med-arb is conducted by arbitrators skilled in dispute resolution techniques •

The third party first acts as mediator and, in an informal setting, attempts to assist the parties in resolving their differences - There are usually specific time frames within which parties must meet and attempt to resolve the grievance

•

If there are outstanding issues, the third party becomes the arbitrator on these issues and writes an arbitration award

•

Med-arb attempts to combine the advantages of the systems of grievancemediation and grievance-arbitration - Initially it is an informal process that facilitates the parties’ relationship and helps them develop problem-solving skills - If mediation is not successful in resolving all the disputed issues, the parties have a timely and cost-effective method of reaching a final and binding resolution in the form of an arbitration award

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS

1. The four different types of grievances are: • individual grievances (action or lack of action affecting an individual employee) • group grievances (action or lack of action affecting a group of employees) • continuing grievances (grievances involving an ongoing practice rather than a single incident) • policy grievances (grievances involving a violation of the collective agreement that potentially affects all employees).

Examples of each type of grievance are given in the chapter, but students can also be encouraged to develop their own examples or to find real-life examples of each.

2. A typical grievance procedure starts with a verbal discussion between an employee and his or her immediate supervisor. If the grievance cannot be resolved at this point, then a formal written submission may be made to the supervisor or to the human resource department. In some organizations, the written submission is the first step in the process. If the union and the department head, or other management representative, cannot resolve the disagreement, then the grievance is usually taken to senior management by the union executive or the business agent. If these parties cannot agree on a solution, then the grievance may be taken to grievance arbitration for resolution. Each of these steps usually has a time limit within which the grievance must be addressed. These limits can be waived but only with the agreement of both parties.

3. Preliminary objections are usually raised at an arbitration hearing if the employer or the union has a concern about the jurisdiction of the arbitrator, the potential bias of the arbitrator, the process of the arbitration hearing, the timeliness of the grievance, or whether the issue in question constitutes a grievance. These objections would usually be raised if a party was concerned about the issue in question having an effect on the fairness or the outcome of the hearing. For example, if the arbitrator is biased the arbitrator’s ruling might also be biased. The arbitrator has the option of accepting the objection and adjourning the hearing until the objection can be resolved, ruling against the objection and proceeding with the hearing, or reserving judgement on the objection and proceeding with the hearing. An arbitrator would usually choose one of the latter two options and go ahead with the hearing, because of the potential difficulty in rescheduling another hearing time when all the participants would be available.

4. The party that has the “procedural onus” in an arbitration is the party that has the responsibility for proving their case. In most arbitrations, the union has the Instructor’s Manual

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procedural onus, since the union is the party filing the grievance. The major exception to this rule is when a grievance arbitration involves the discharge or dismissal of an employee. In these types of cases, although the union is bringing the complaint, the employer has the procedural onus because the employer is better able to explain its reasoning for the discharge or dismissal.

5. There are two different standards of proof that can be used to determine the outcome of an arbitration. “Balance of probabilities”, the most commonly used standard of proof, means that the party making the allegation must “on balance” prove that its version of the events is true. Neither party may have a completely satisfactory case, but under this standard the party with the comparatively stronger case is the party that is successful. The other standard of proof, “clear and cogent evidence”, is used in cases involving an employee who has committed a serious offence. In these types of cases, it may not be justifiable to reinstate the employee simply because the union’s weak case is better than the employer’s weak case. The “clear and cogent evidence” standard requires that there be sufficient relevant evidence to convince the arbitrator that the grievance is or is not justified.

6. An arbitration hearing is conducted in a manner similar to that of a court case.

The arbitrator opens the proceedings and deals with any preliminary objections. The party proceeding first then makes its opening statement, and the other party follows with its opening statement. The first party then calls witnesses and asks questions of them; these questions are designed to present the party’s case through the witnesses’ statements. After the first party has finished questioning its witness, the other party is permitted to cross-examine the witness. The first party also has a limited right to ask further questions once the cross-examination is finished. The arbitrator can also ask questions of the witness. This process continues until every witness has been heard, after which the first party makes its closing statement. The other party also makes a closing statement, and the first party has a limited right of reply to respond to the other party’s closing statement. The arbitrator then adjourns the hearing and retires to write his or her decision.

7. The traditional grievance arbitration process can be slow, costly, formal and legalistic. The process can be slow because of the limited availability of arbitrators, the complexity of issues that require arbitration to be resolved, the difficulty in scheduling mutually convenient meeting times for all participants, and the time the arbitrator needs to write a decision. The process is expensive because of the costs incurred by the various participants, and the loss of time or productivity while the parties are preparing for and attending the arbitration hearing. The formality of the process ensures consistency and rigour, but also makes the process adversarial and may also unduly intimidate witnesses. Legal counsel are often involved in arbitration as representatives of the parties, but it is questionable whether this involvement makes any difference to the effective representation of the parties involved in the process. The arbitration award itself may also be a legalistic document written Instructor’s Manual

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to further labour relations policy as well as to resolve the dispute, and the parties may not understand the discussion in the document or the reasoning leading to the award.

8. Expedited arbitration is a process available in some Canadian jurisdictions that has specified timelines for holding the arbitration hearing and for issuing the arbitration award. This structure attempts to avoid the delays often associated with “traditional” arbitration. In jurisdictions where expedited arbitration is not provided by legislation, the parties can also voluntarily agree to use an expedited arbitration process to resolve a grievance. Expedited arbitration attempts to be informal by having the parties represent themselves in the arbitration hearing, and the award is not considered to be precedent setting. However, expedited arbitration is usually only used for grievances that do not involve major disciplinary issues, interpretations of policies, or interpretations of the collective agreement.

9. In grievance mediation, a trained mediator meets with the parties, usually within a specified timeline, to assist them in settling their differences. Its advantages are that it is timely, cost-efficient, informal, and non-adversarial. It may also be beneficial in helping the parties develop better long-term relationships, beyond the resolution of the immediate dispute. Its major disadvantage is that the parties must be willing to work actively towards a solution for the grievance mediation to be a useful process. If the parties are more concerned with who will “win” and who will “lose”, then grievance mediation may not be successful.

10. Mediation-arbitration, or “med-arb”, is a form of grievance arbitration in which the third party first meets with the parties to mediate a solution to the grievance. If that is not successful, the mediator then moves into the role of arbitrator and writes an arbitration award. This process is timely and costeffective because a final and binding resolution can be reached with minimal delay between the mediation and arbitration stages. However, the parties may not be seriously committed to reaching a resolution in the mediation phase of the med-arb if they know that the mediator can ultimately arbitrate a resolution to the dispute.

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TEACHING NOTES FOR CHAPTER 11 CASES CASE 11-1 Tammy Quinton, Provincial Careworkers Union, and Restful Care Home This case is based on the Ontario Labour Relations Board case Sharon Parker (applicant), Service Employees International Union Local 183 (responding party), and Caressant Care Nursing and Retirement Homes Ltd. (intervenor), indexed as Parker and SEIU Local 183, (94 CLRBR [2d]). Decision dated August 14, 2003.

In this case, the board upheld the applicant’s complaint, for the following reasons: -

The board did not agree with the union’s argument that the application should be dismissed for delay. The applicant filed her application within one year of the date on which the union advised the applicant that it would not proceed to arbitration of her grievance. The board agreed with the applicant’s argument that the union was responsible for part of the delay, particularly by not responding to her internal appeal.

-

In assessing the applicant’s contention that the union chose to pursue a grievance involving another employee instead of her grievance, the board decided that this did not constitute discrimination, since a union is “entitled to make individual assessments of different fact situations” (p. 264).

-

The board noted that previous decisions involving the relevant legislation (S. 74 of the Ontario Labour Relations Act) established that in cases of termination, the union must provide a “persuasive account” of its reasons for not pursuing the grievance, since termination is the “ultimate sanction” for workplace misconduct.

-

The board acknowledged that the union’s case was hindered by the fact that the two individuals involved in the decision to not pursue the grievance were no longer employees of the union. However, the board ruled that the possibility of losing the arbitration and of damaging the union’s relationship with the employer were not sufficient justification for the union to not proceed with the grievance.

-

The board noted that the facts of the case were unusual, and that while the applicant’s actions might constitute “patient abuse”, her actions were “of a different character” than other grievances involving “patient abuse” that had gone to arbitration. The board noted that several previous cases of this nature had indicated that while “patient abuse” is serious, it is not automatic grounds for termination.

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The board stated that while it could not say whether the grievance would have been upheld at arbitration, its sense was that the penalty of termination was too harsh, and it could not understand why the union could not also have that sense. “[The applicant’s actions] may well have been patient abuse, but it appears to be of a different nature from patient abuse which has so often led to the discharge of employees” (p. 268).

The board directed the union to take the grievance to arbitration, and ruled that any time limits which might affect the grievance being pursued at this point would be waived.

Suggested Discussion Questions for Case 11-1 1) The union believes that pursuing the grievance would create a bad relationship with the employer, because of the behaviour leading to Quinton’s dismissal. Do you agree that grievances involving certain types of behaviour should not be pursued? Why or why not?

2) If a union does not respond to an appeal of an internal union decision, what options does the union member have?

3) When a union decides whether to pursue a grievance, how important in that decision is the union’s assessment of the likelihood of its winning the grievance? What information could a union use to make such an assessment?

4) If you were the labour relations board, what would you decide in this case?

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Case 11-2 Cassar and Central University Faculty Association This case is based on Micah B. Rankin et al, Thompson Rivers University Faculty Association, and Thompson Rivers University (BCLRB No. B220/2013). Decision date November 15, 2013.

The board decided that the union had not violated its duty of fair representation.

The board stated that while unions are expected to represent the interests of all of their members, unions will inevitably have to choose between the interests of some members and the interests of other members. That, the board said, is “the nature of collective bargaining” and is not evidence of a lack of fair representation.

The board stated that it felt CUFA’s responses to the law school faculty members adequately explained why CUFA could not necessarily “advance the interests” of those members at the same time as the interests of other members. The board noted that CUFA had indicated in November 2011 that some of its members currently did not receive benefits, and that there were limitations on how much funding the provincial government might make available for faculty salary increases. In this context, the board said, it was reasonable to expect that CUFA would have to make choices about bargaining priorities, and that making such choices was not in and of itself discrimination.

The board stated that it did not feel CUFA ignored the law school faculty members’ interests, and did not oppose all of what they had requested. It also stated that it did not find a “factual basis” for the allegations that CUFA had lobbied the CU administration to ignore the law school faculty members’ complaints.

The board stated that it appeared some of the law school faculty members’ emails had not been circulated to the entire CUFA executive, but stated that this did not constitute bad faith in bargaining. It also stated that since the law school faculty members had sent an email to Lorello (the CUFA bargaining committee chair) on November 5 – an email which was also copied to two CU administrators - the CUFA acted reasonably two days later in refusing to provide copies of the PowerPoint presentation shown at the CUFA general meeting.

The board also said that it could not address whether the grievances that the complainants alleged were “vexatious” were relevant to the complaint, since the complainants did not identify the specific grievances or their details.

The board stated that since it did not find a breach of the duty of fair representation, it was not necessary to issue the orders that the complainants were requesting.

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Suggested Discussion Questions for Case 11-2 1) Unions often represent many different types of workers doing different types of work within the same workplace or bargaining unit. How should unions determine bargaining priorities while also meeting the expectation that they represent the interests of all their members?

2) What kind of evidence might indicate a union decision that is arbitrary? A decision that is discriminatory? A decision that is in bad faith?

3) How much should external information, such as salary rates at comparable workplaces, be used in the collective bargaining process?

4) If you were the labour relations board in this case, what would you decide?

CASE 11-3 Tim Bell, Performers Union, and City Opera This case is based on Phillip R. Crewe, Musicians’ Association Local 145, American Federation of Musicians, and Vancouver Opera Association (BCLRB No. B146/2011). Decision date August 9, 2011.

The board dismissed both complaints.

In ruling on the duty of fair representation complaint, the board found that the union gave careful consideration to the grievance on several different occasions, and made a reasoned decision based on relevant information. The board stated that in its opinion the complainant had not provided sufficient evidence to support his allegations of bias on the part of the lawyer providing the union with a legal opinion.

The board stated that while it was clear the complainant did not agree with the union’s interpretation of the collective agreement, it was not within the board’s mandate to arbitrate on a difference of opinion on the meaning or application of a collective agreement, unless the union’s interpretation was arbitrary, discriminatory, or in bad faith. However, the board stated that it found a “distinct and readily discernable rational correspondence between the position the union took and the terms of the collective agreement” (p. 14).

The board noted that the union provided the complainant several opportunities to present his side of the dispute, both orally and in writing. The union also “went

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out of its way” (p. 14) to remove the two executive board members from the meeting when discussing the complainant’s appeal.

As the complainant did not allege discrimination, the board did not consider this in their reasoning.

The board said that the complainant’s perceptions of potential conflicts of interest did not demonstrate that the union had acted in bad faith, nor did the allegations of bias. The board also stated that it did not agree with the complainant’s position that the union had colluded with the employer in allowing the collective agreement to be violated.

In ruling on the dismissal complaint, the board said that the only evidence the complainant presented which linked his dismissal from the orchestra stage manager position with his duty of fair representation complaint was the fact that he mentioned the dispute to the opera’s artistic director. The board said that the allegation against the employer was thus “fundamentally speculative” (p. 16). The board also said that even if there was sufficient evidence to support this complaint, almost nine months passed between when the complainant was informed of his dismissal and when he filed the complaint with the labour relations board. In the absence of any explanation for this delay, the board said, it would have dismissed the complaint as untimely.

Suggested Discussion Questions for Case 11-3 1) If a union member disagrees with a union’s decision, and complains to the union, what should the union be expected to do in responding to the complaint?

2) How should a union act if there are allegations of conflicts of interest involving its executive members?

3) What kind of evidence would be considered to adequately prove that an employer dismissed an employee in retaliation for union-related activity?

4) If you were the labour relations board in this case, what would you decide?

CHAPTER EXERCISES FOR CHAPTER 11 The “Wally Worker” Grievance Arbitration Simulation Preparation for the Arbitration

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In each simulation, two participants will play the roles of the management witnesses, Bobby Boss and John Demanding. Two participants will play the roles of the union’s witnesses, Wally Worker and Sidney Steward. One participant will play the role of Tanker Treadmill, the union representative. One participant will play the role of the union’s lawyer, and one will play the role of the company’s lawyer. One other participant will serve as the arbitrator. Alternatively, if there are more students than there are roles, an arbitration board can be appointed instead of a single arbitrator. However, the simulation may be more challenging to manage if the arbitration board is too large. Four board members is the recommended maximum. “Extra” students can also be assigned to act as observers and to report their findings to the entire class after the simulation has concluded.

The assignment of students to roles can be random (e.g., students draw for their roles) or deliberate. The effectiveness of the simulation can be hampered if the “arbitrator” or lawyers are shy or re not comfortable speaking in front of a group.

The mix of personalities in the class may be the best determinant of which method of assignment is most appropriate.

The union “side” and the company “side” in each simulation will receive: -

A document with a fact situation [different for each side] A set of five documents [the same for both sides]

All of these documents are available below. Members of each “side” should be warned that members of the other “side” should not be permitted to see any of their side’s material prior to the hearing. The arbitrator(s) should receive the two documents with the fact situations, but excluding the last section of facts of which only that side is aware. They should not be provided with any of the other material before the hearing. Both “sides” should be reminded that if there is any evidence they wish to present during the hearing, they must provide copies to the arbitrator(s) and fo the other “side”.

Each simulation should be conducted in a separate hearing room. If possible, the rooms should be far enough apart from each other so that hearings are not disturbed by noise from other simultaneous hearings.

In preparing for the arbitration, it is usually effective to distribute the materials during one class session and allow each “side” to meet during that same session to plan strategy. The actual hearing can then be held during the next class session. The time allocated for the hearing should be approximately 90 minutes.

This allows one hour for the actual hearing, time for the arbitrator(s) to privately consider the evidence and create an award, and time for the arbitrator(s) to orally deliver the decision to the participants.

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ensure that the arbitrators understand the order of proceedings in an arbitration hearing, as outlined in the chapter. A handout detailing the order of proceedings may be useful as a reference for the arbitrators. The arbitrators should also be informed of the timelines under which the hearing is to be conducted.

The instructor should emphasize that the arbitrator or arbitration panel is in control of the hearing, and has the responsibility of directing the process (e.g., asking for opening statements, asking each side’s lawyer to present their case or call witnesses, asking for closing statements). The arbitrators can also ask questions themselves, can rule legal counsel’s questions out of order, or ask participants to modify their behaviour if they are aggressive, rude, or disrespectful to other participants. This last point is sometimes important when inexperienced “legal counsel” are questioning witnesses.

The instructor should also ensure that the arbitrators understand their responsibility of determining a resolution to the grievance, and understand that they will be expected to orally deliver their resolution, along with their reasoning, to the participants to conclude the hearing.

As a final point, the instructor should also ensure that all participants are aware of the time, date, and location of the hearing. The process of the hearing can be impeded if participants do not show up or are in the wrong place.

During the Arbitration While the arbitration is taking place, the instructor and any observers are to observe the process, and not participate in or direct the proceedings in any fashion. If an arbitrator is unsure of a procedural point, s/he may ask the instructor for advice, but this should only be done on the arbitrator’s initiative. The arbitrators should be encouraged to run the arbitration independently as much as possible.

When the arbitration hearings have concluded, the instructor may wish to meet with the arbitrators while they create their rulings and remedies. There is no one right answer or solution to this simulation, but the arbitrators may need some assistance in developing their award and clearly explaining the reasoning for it.

The instructor should encourage the arbitrators to rely on their own judgement in making a fair assessment of the evidence and deciding on a reasonable remedy.

After the time allocated for the arbitrators’ recess, the arbitrators will return to the hearing room and orally deliver their findings to the participants. This ends the simulation.

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After the Arbitration Immediately after the end of the simulation, or during the next class period, it may be useful for the instructor and the class to engage in a debriefing of the exercise. The participants in the exercise can be asked to reflect on their experience in their various roles and to share their overall impressions of the arbitration proceeding and its outcome. Any observers that were present can also present their observations and their thoughts on the proceedings. The instructor can raise some of the criticisms of arbitration which are discussed in the chapter (the win-lose scenario, the finality of the binding verdict, the effect of the courtlike process in a hearing) and ask students to relate those issues to their own experiences in the simulation.

Evaluating the Arbitration Like the collective bargaining simulation in Chapter 8, some instructors may use the arbitration simulation as an experience for the class members, while others may wish to assign a portion of the course grade to the arbitration. If there is a single arbitration and the instructor is able to observe the entire hearing, the instructor can assign grades based on his or her observations. Another possibility is to assign the students an essay detailing their experiences in the arbitration, and their assessment of the effectiveness of arbitration as a dispute resolution procedure, based on those experiences. An essay can be an effective method of evaluation related to the arbitration simulation, since students play different roles in the simulations, and an essay allows them to comment on their experiences from their individual perspective. Peer evaluations of the effectiveness of each participant in the simulation could also be used as a basis for assigning grades.

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INFORMATION FOR THE COMPANY Re:

CANADIAN UNION OF STALWART EMPLOYEES AND SUNNYSIDEUP WIDGET CORPORATION, Division of Face-savers (Canada) Limited; re Wally Worker grievance

FACT SITUATION – COMPANY George Forceps, president of the company, was surprised to see his personnel manager, John Demanding, so early in the morning. Demanding was already in his office when he arrived. He looked worried. This is the way the conversation went: Forceps: Demanding: Forceps: Demanding:

Forceps: Demanding:

Forceps: Demanding: Forceps: Demanding:

Forceps: Demanding:

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What’s the problem, John? You look worried.

A couple of sticky grievances that I’m not quite sure how to handle, George. I need your advice.

Tell me about them.

They concern a quality control technician, Wally Worker. He’s been with us nearly 6 years. He started as a labourer for 2 years, then became the assistant operator on the Widget machine for 2 years, and then an operator for one year before he was promoted to quality control technician about 8 months ago.

What’s the matter? Isn’t he fitting in?

Well, I didn’t really think he should have been given the job in the first place - he wasn’t really up to it. But the union claimed that he had the seniority and we had to give it to him. However, he hasn’t worked out. He got the job in November and, after 2 months, we had to call him in – his foreman, Bobby Boss and I – and tell him that his work was totally unsatisfactory. We told him that he was going to be put on a monthly review and that if he didn’t shape up we’d take some disciplinary action.

When was this?

Sometime in January.

Well, it’s June now. What happened after you gave him the warning?

Things didn’t get any better. We gave him a monthly report in April and May saying that his work continued to be poor. He reacted quite resentfully and walked out of the office saying that he was going to speak to his steward.

Did anything come of it?

On June 5, last Tuesday, he was scheduled to work the afternoon shift, but his foreman called him up and asked him to come in around 9:00 am. Well, he didn’t come, he just showed up at his usual time.

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Forceps: Demanding:

Forceps: Demanding:

Forceps: Demanding:

Forceps: Demanding: Forceps: Demanding:

Forceps: Demanding:

Forceps:

Demanding: Forceps:

for insubordination. I had a meeting with the foreman during that time and we decided to see him before he started work again on Friday, June 8 and tell him that we were going to have to demote him. Boss called him at home and told him to meet us at 8:00 a.m. on the Friday.

Did he come in on the Friday?

Yes, he came in with his steward at 8:00 a.m. on June 8. We gave them a letter saying that because of Wally Worker’s rotten work and poor attitude we were going to have to demote him back to the position of labourer starting Monday, June 11. Wally went bananas.

I told him I didn’t allow screaming in my office and he ran out.

What happened then?

Well, as I understand it, about 10 minutes later, he went storming in to see his foreman, Boss. He yelled and screamed at him and shoved his fist in his face and threatened him. That’s what Boss tells me.

Did he talk to you?

Yes. He came in to see me after he had seen Boss. He asked me for another chance. He said that at least, if demoted, he should be put on a better job than the labourer's job. I told him that there wasn’t another job available. Wally told me that if this was the case, he was going to quit. I told him that was up to him, but that I wasn’t going to give him a reference in light of his performance.

Did he quit?

Yes. He just left the plant. I don’t know where he went.

Did he ever show up again?

The following Monday. He tried to start work as usual. But I had Boss tell him to leave the premises immediately. I wasn’t going to look a gift horse in the mouth. If he quit, he quit.

Well, what’s the problem about the grievance?

Well, on Friday, June 15, Wally filed one grievance claiming improper discharge and a second grievance complaining about an unjust demotion. I’m not quite sure how to handle it.

There’s no problem. Give him a reply saying that as far as we are concerned, he quit. And, even if he had not quit, he would have been fired for just cause because of his abusive and threatening actions toward his foreman, Boss. And you might as well add that, so far as we are concerned, the grievance is untimely.

What about the demotion grievance?

Simple. Put in your reply that he was demoted due to incompetence.

As it turned out, the Union tried to have the two grievances addressed together by the same arbitrator, but the Employer consistently refused this request.

During the grievance meetings, Wally Worker again became upset because of the way he had been treated, and swore at both Boss and Demanding. Nothing was resolved.

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Worker’s record is not in dispute. Two years ago, he received a warning letter for excessive absenteeism and a two-day suspension for insubordination. Three years ago, he received a warning for poor workmanship, and one year ago, he received a one-day suspension for failing to report to work on time.

Today is the hearing of the grievance of unjust discharge. Counsel for the Union will ask that the arbitrator also deal with the demotion case. Counsel for the Employer will submit that the grievance is untimely and therefore not fit for arbitration, and will ask that the arbitrator rule on these issues before he or she proceeds to hear the merits. Counsel for the Union will also ask the arbitrator to disqualify himself or herself for bias.

Facts of Which Only the Company Is Aware 1. The Company has a petition from a number of employees stating that they don’t want the griever to come back. [A copy of this document is attached.]

2. Prior to Sidney Steward going into Demanding’s office, Worker had signed a resignation from the Company typed by the Company’s secretary. [A copy of this document is attached.]

3. Bobby Boss had seen the griever at the racetrack on the afternoon of June 5 when Worker had said that he could not come in to work before 4:00 pm.

4. Worker had turned down a job in another province which was offered to him prior to the hearing.

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October 16, 2010 SUNNYSIDEUP WIDGET CORPORATION PETITION We, the undersigned, don’t think we want Wally Worker to come back to the plant because we can’t work with him.

Sam Vicious Sam Vicious Harry Rotten Harry Rotten Frank Baddy Frank Baddy

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June 8, 2010 SUNNYSIDEUP WIDGET CORPORATION

I hereby resign my job.

John Demanding John Demanding

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Wally Worker Wally Worker

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INFORMATION FOR THE UNION Re:

CANADIAN UNION OF STALWART EMPLOYEES AND SUNNYSIDEUP WIDGET CORPORATION, Division of Face-savers (Canada) Limited; re Wally Worker grievance

FACT SITUATION – UNION It was a quiet, sunny day in June. Tanker Treadmill, an overworked and overwrought union representative, was spending the weekend with his family at their home in Tinseltown, Canada. As a matter of fact, it was the only weekend that Tanker had been able to get off in months. Now here he was, lying in his hammock with the television set perched on his stomach, watching the sports spectacular. Periodically, he would take a drink of milk from the 24-pack on the ground below him. The kids were playing in the wading pool, and his wife was clipping flowers. As yet, nothing unusual.

Then the phone rang.

“It’s for you, Tank,” his wife called from inside the house in a voice which lacked her customary warmth and, then, in an irritated tone, “Can’t they ever leave you alone?” Tanker sighed, put on his sandals, shuffled into the house and picked up the receiver. “Hello. Tanker Treadmill here.”

The quavering voice on the other end said, “Tank, hate to bother you on a Sunday. This is Sidney Steward, from Local 2001. I think we have a small problem here at the plant.”

Just like that. Tanker could feel it in his bones. The family weekend was fading fast. But let the phone speak for itself.

Tank: Sidney: Tank: Sidney: Tank: Sidney:

Tank: Sidney:

“What’s the problem, Sid?” “Well, Tank, it’s like this. We got some trouble with Wally Worker and I really think we need your help.”

“Is Worker that new quality control technician?”

“Yep. He just got that promotion about eight months ago.”

“How long has he been at the plant?”

“Nearly six years. He started as a labourer, did that job for two years and then became the assistant operator on the widget machine for two years. Then he was an operator for one year before he got this new job.”

“Well, isn’t he happy with his new job?”

“He is happy, but they don’t like him and now the situation has gotten all out of hand. I wish he had come to me earlier so that…”

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Tank: Sidney:

Tank: Sidney: Tank: Sidney:

Tank: Sidney:

Tank: Sidney:

Tank: Sidney:

“Why don’t you just tell me what is going on.”

“Well, it’s like this. Ever since Worker got that technician’s job they’ve been on his back. I don’t think they wanted to give it to him in the first place, but you know we kind of forced them into it.”

“We didn’t force them into anything. We just made them live by the collective agreement.”

“He got the job in November and for two months nobody said anything to him. Then, in January, that rotten Bobby Boss…”

“That foreman. I thought we had seen the end of him. Didn’t they ship him out after that last mess?”

“No, he’s still here. He and John Demanding, the personnel manager, called Worker into the manager’s office in January and told him his work was totally unsatisfactory and that he was going to be put on a monthly review, and that if he didn’t shape up they were going to take some disciplinary action.”

“Were you at that meeting, Sidney?”

“I didn’t know anything about it until last Friday. Worker thought he could handle it himself, but I think things have gone too far now and are all messed up.”

“Go on.”

“As I understand it, they gave him a monthly report in April and May. It was just a sheet of paper saying that his work continued to be lousy.

Wally asked for a steward to be present, but he wasn’t allowed, and he asked to be able to make comments on the review, and Boss and Demanding walked out of the room laughing at him.”

“I don’t know how Wally can take that.”

“You have to ask Wally about that. Anyway, all I know is on June 5, last Tuesday, Wally was supposed to work the afternoon shift and they called him up and asked him to come in at around 9:00 a.m.

Wally said he couldn’t and when he did come in to work the foreman, Boss, sent him home for three days for insubordination. He was supposed to come back on Friday, June 8, but before he did, he got a call from Boss telling him to meet him and Demanding in Demanding’s office at 8:00 a.m. on Friday.”

At this point, Tanker’s baby tipped over the bottles of milk from the 24-pack, and Tank began to sob softly to himself as he turned back to the phone.

Tank: Sidney:

Tank:

“Go on, Sidney, and make it quick.”

“Wally called me the night before, and I went with him to the meeting.

As soon as we got there, they gave us each a letter saying that because of his rotten work and poor attitude, Wally was going to be demoted back to the position of labourer starting Monday, June 11.

When Wally saw that, he went white. He asked if he could talk to me privately and they said no. I was told to go back to my work, and the way I understood it, Wally just sort of wandered out of the room.”

“So, what is the big deal? File a grievance against the demotion.”

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Sidney: Tank: Sidney:

Tank: Sidney:

Tank:

“Well, it’s not all that simple.”

“Well, get to the point already.”

“The way I understand it, Wally went storming in to see Boss about ten minutes later. I tried to stop him, but I couldn’t. I think he yelled and screamed at Boss, shoved his fist in his face, and may have threatened him. Then he went to see Demanding and asked for another chance, or at least to be given a better job than the labourer’s job. Demanding said that he didn’t think that there was another job available, and even if there were, he didn’t have time to worry about that now. I came into Demanding’s office at this time and heard Worker say that if that was the case he was going to quit, that he had no other choice. He asked for a reference and was told that he wasn’t going to get any, so he just left the plant. I don’t know where he went from there.”

“Well, what is the problem, Sid?” “Look, Wally is with me now. Can we come over and talk to you about this because he just doesn’t know what he is to do and neither do I.” “Well, come on over in about fifteen minutes.”

At this point, Tank looked at his wife who had grabbed the children and was heading out the door in an angry state. Tank was now feeling sick from too much milk, and he felt a cold coming on. His head was swimming and he knew that he faced a long evening ahead.

Sidney and Wally met with Tank that evening. Tank advised Wally that the only chance he could have to keep his job would be for him to report for work as scheduled the next day. Tanker made it clear, however, that it was up to Wally to decide what he wanted to do. Wally made it clear that he felt that the labourer job was degrading and not suitable for him.

On Monday, Wally went in to work at the quality control technician’s post, and was met by Boss who told him to leave the premises immediately. Unfortunately, Wally did not file a grievance until Friday, June 15. At that time, he filed one grievance claiming improper discharge, and a second grievance dealing with an unjust demotion.

The reply to the discharge grievance stated that the grievance was untimely, that Worker had quit and had not been discharged, and that even if he had not quit, he would have been fired for just cause because of his abusive and threatening actions towards his foreman, Bobby Boss. The reply to the demotion grievance stated that Worker had been demoted due to his incompetence.

The Union tried to have the two grievances dealt with together and submitted to the same arbitrator, but the employer consistently refused this request. During the grievance meetings, Worker again became upset at the way he felt he had been treated and swore at both Boss and Demanding. Nothing was resolved.

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Worker’s record is not in dispute. Two years ago, he received a warning letter for excessive absenteeism and a two-day suspension for insubordination. Three years ago, he received a warning for poor workmanship, and one year ago he received a one-day suspension for failing to report to work on time.

Today is the hearing of the grievance of unjust discharge. Counsel for the union will ask the arbitrator to also deal with the demotion case. Counsel for the employer will submit that the grievance is untimely and not fit for arbitration, and will ask that the arbitrator rule on these issues before he or she proceeds to hear the merits. Counsel for the union will also ask that the arbitrator disqualify himself or herself because of bias.

Facts of Which Only the Union Is Aware 1. When Worker left the plant on June 8, he did not take any of his personal possessions with him, but left everything either at his desk or in his locker.

He wandered around all of Saturday until he met Steward, who then phoned Tanker Treadmill the following day.

2. When Worker left the plant on Monday, June 11, he was so upset that he saw his doctor, who advised him not to think about work for at least three days and to return to see him on Thursday, June 14. It was after the second visit to the doctor that Worker called Steward and the grievance was filed. The Union has a letter from Worker’s physician which it has just received. [A copy of this document is attached.]

3. The Union has found a copy of a letter sent from Bobby Boss to his brother, Jimmy, telling Jimmy that he can have the Quality Control Technician job as soon as it is available. [A copy of this document is attached.]

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KEANUS MUSTARD, M.D. 21 Hell’s Half Acre Tinseltown, Canada October 16, 2010 Mr. Sidney Steward 17 the Gateway Tinseltown, Canada Dear Mr. Steward: Re: Wally Worker Mr. Worker has asked me to certify as to his condition.

Mr. Worker came to see me on June 11, 2010, in a distraught state. He was extremely upset and depressed. I prescribed librium, valium, darvon, saccharin, demarol, aspirin and brown sugar. The patient was in a state of extreme depression, resulting from, as I understand it, an incident which had occurred at work. I advised Mr. Worker to take his medication and not to think about work at all for at least three days, and to see me again later that week.

I saw Mr. Worker again on June 14, 2010, at which time I felt that he had calmed down sufficiently to think about any problems which he had with respect to his work place. I trust this is the information you want.

Please excuse the brevity of this letter as I have many others to issue.

Yours sincerely, Keanus Mustard

Keanus Mustard, M.D. KM/pf

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SUNNYSIDEUP WIDGET CORPORATION Tinseltown, Canada January 3, 2010 Mr. Jimmy Boss, Competition Widget Corporation Strangeglow, Canada

Dear Jimmy: Just thought I would drop you a note to follow up on our chat at that great New Year’s party you threw. I spoke with Demanding, and he says you can have the first quality control technician job that comes up.

In the meantime, I know you’ve got a great job at Competition Company, and I know you would like to stay where you are until the kids can finish the school year. You can be sure I will do everything I can for you. It will be great working together again.

Bobby

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DOCUMENTS 1. Discharge Grievance 2. Demotion Grievance 3. Reply to Discharge Grievance 4. Reply to Demotion Grievance 5. Excerpts from the Collective Agreement

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GRIEVANCE CANADIAN UNION OF STALWART EMPLOYEES

GRIEVOR:

Wally Worker

DEPARTMENT:

Quality Control

DATE OF GRIEVANCE:

June 15, 2010

GRIEVANCE:

I hereby grieve that the Company has discharged me without just cause. I demand that I be reinstated with compensation for lost wages, no loss of seniority, or any other benefits.

STEWARD: Sidney Steward

GRIEVOR: Wally Worker

Sidney Steward

Wally Worker

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GRIEVANCE CANADIAN UNION OF STALWART EMPLOYEES

GRIEVOR:

Wally Worker

DEPARTMENT:

Quality Control

DATE OF GRIEVANCE:

June 15, 2010

GRIEVANCE:

I hereby grieve that the Company has improperly demoted me from my position as Quality Control Technician to the position of labourer. I demand that I be reinstated to my technician position with compensation for all lost wages and benefits.

STEWARD: Sidney Steward

GRIEVOR: Wally Worker

Sidney Steward

Wally Worker

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SUNNYSIDEUP WIDGET CORPORATION Tinseltown, Canada FROM:

Personnel Manager, John Demanding

DATE:

June 19, 2010 REPLY

This discharge grievance is denied. On Friday, June 8, the grievor voluntarily resigned from employment with this Company. Even if the grievor had not resigned on that day, we would have fired him because of his unacceptable behaviour in abusing his supervisor (Mr. Boss), because of his past record, and because he left the plant without permission. There has been no violation of the collective agreement. In any case, this grievance is untimely.

John Demanding John Demanding Personnel Manager

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SUNNYSIDEUP WIDGET CORPORATION Tinseltown, Canada FROM:

Personnel Manager, John Demanding

DATE:

June 19, 2010 REPLY

This grievance is denied. The griever voluntarily resigned his employment.

In any event, the griever was properly demoted by reason of his incompetence.

John Demanding John Demanding Personnel Manager

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EXCERPTS FROM THE COLLECTIVE AGREEMENT Article 1.01

The Employer recognizes the Union as the exclusive bargaining agent for all employees at its plant in Whimsy, Ontario, save and except for foremen, those above the rank of foreman, persons working less than 24 hours per week, and students employed during the summer vacation period.

Article 2.01

The Employer has the exclusive right to manage the plant, to direct the working force, and to hire, promote, demote, transfer, discharge, and discipline employees for just cause subject to the provisions of this agreement.

Article 7.01

A grievance relating to discharge must be presented in writing at the third step to the personnel manager within two working days from the date of the discharge. All other grievances must be presented at the appropriate step within three working days of the date of the incident giving rise to the grievance. A grievance may not be considered if it has not been filed within the appropriate time limits.

Article 9.02

Discipline or discharge may result in the following circumstances: (a) insubordination; (b) obscene language; (c) absence without leave; (d) smoking on the job; (e) leaving work without permission; or (f) unseemly or abusive behaviour.

Article 10.02

Overtime will be on a voluntary basis, but employees are expected to co-operate where reasonably possible.

APPENDIX “A” HOURLY WAGES _______________ _______________ _______________ Quality Control Technician _______________ _______________ Operator Assistant Operator Labourer

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_______ _______ _______ $12.05 _______ _______ $11.60 $11.00 $9.80

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 11 TOPICS

Grievances This page includes links to a video on the grievance arbitration system in Canada and a video on grievance arbitrators and their work. http://www.labourvideo.com/lvc3.html From the Nunavut Employees Union: Advice on how to file a grievance. http://www.neu.ca/filling_a_grievance The National Film Board’s 1956 film The Grievance, about the union handling of a grievance. https://www.nfb.ca/film/grievance New Brunswick Industrial Relations – Grievance Mediation Information from the New Brunswick Industrial Relations Branch on grievance mediation as an alternative to arbitration: “A quick and voluntary way to resolve grievances.” http://www2.gnb.ca/content/gnb/en/services/services_renderer.16456.html

Duty of Fair Representation Duty of fair representation as defined by the B.C. Labour Relations Board. http://www.lrb.bc.ca/guidelines/representation.htm The Arbitration Process The Public Service Alliance of Canada’s guidelines on arbitration of grievances. http://www.psac-afpc.org/what/representation/index-e.shtml The Public Service Alliance of Canada’s Grievance fact sheet: http://psacunion.ca/sites/psac/files/attachments/pdfs/steward_factsheet_e_final.p df The arbitration sections of the B.C. Labour Code. Includes expedited arbitration. http://www.lrb.bc.ca/codeguide/chapter9.htm Alternative Forms of Arbitration The Saskatchewan Ministry of Labour’s grievance mediation program. http://www.employeeservices.gov.sk.ca/in-scopegrievancehandling

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The FAQ of the Manitoba Labour Department’s conciliation and mediation services division. Answers questions including: “What is the role of a conciliation officer of the Department of Labour in grievance mediation?” “How is a grievance mediator appointed?” and, “Who pays for the services of a grievance mediator? http://www.gov.mb.ca/labour/concilia/index.html

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CHAPTER 12 Changes to the Union or the Employer LECTURE NOTES

Chapter 12 Objectives At the end of this chapter, you should be able to: • Define successorship and understand the criteria that are used to assess whether successorship has occurred • Describe the process of decertification • Understand what happens to certifications and collective agreements when unions or companies merge • Explain some of the ways that technological change and restructuring affect union-employer relationships

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Changes to the Union or the Employer • Both certification orders and collective agreements have a life over time (certification is indefinite; collective agreement lasts for a set term after which it is replaced by another collective agreement) •

Both reflect the status of the union and the employer only at the time the documents were completed

•

What happens if a change occurs after a certification begins or a collective agreement goes into effect?

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What if the workplace conditions change or there is a change in the status of the parties named in the certification or collective agreement?

This chapter deals with how labour legislation deals with changes to the parties or the workplace while a certification or collective agreement is in effect

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Successorship • The term successorship, as used in labour legislation, relates to the status of a certification order after some material change in a business or employer occurs • Successorship assumes that the certification order was already in place before the change •

If a labour relations board determines that past and present forms of the business are sufficiently similar, then successorship is declared to exist

•

The employer is then bound by the terms of any certification or collective agreements – or any other formal relationships with a union – that existed in the earlier form of the business

Successorship The question of successorship can arise in a number of different situations: • Change in the location of the business - Employer could move the business or could expand the business to new locations •

The business itself is sold or transferred to a new owner or the purpose of the business changes or broadens - E.g., the business moves into offering new products or services not always related to those of the original business

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The employer transfers work to other locations or to other workers or organizations through subcontracting

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The applicability of the certification or collective agreement has major implications for how the workplace functions - The presence or absence of a certification or collective agreement influences the union-employer relationship

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If a change occurs, a party will apply to a labour relations board to determine whether a declaration of successorship should be issued

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A declaration of successorship has the effect of applying the existing certification or collective agreement to the new form of the business

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The new employer is automatically bound by the certification or agreement covering the previous employer unless there are exceptional circumstances

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A declaration of successorship can also apply where the employer is involved in some union-related process that has not yet been completed − e.g., a certification campaign

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According to Canadian labour codes, if an employer sells or changes business during any such process, the altered employer is bound by the obligations required by these processes

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This principle applies unless a labour relations board declares otherwise - The purpose of this is to discourage employers from attempting to avoid obligations to the union by selling or changing business during processes that could alter the union-employer relationship

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Determining whether successorship exists can be quite complicated - Changes to a business could take place for legitimate reasons and not just to avoid obligations to union - Changes can be either simple or complex

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Changes in one area of a business may not be representative of the direction of the organization as a whole Employer may not have considered how change will affect the unionemployer relationship However, there is always the possibility that the employer has undertaken change for no other reason than to weaken the union or to avoid dealing with the union E.g., expanding to new non-unionized location would weaken bargaining power of workers at unionized location Employer might also be tempted to sell or transfer the business while retaining control and then claim that the certification or collective agreement should not apply because the business has changed

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Labour relations boards look for evidence that the employer's actions are not motivated by anti-union animus

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There are no hard and fast rules that determine when successorship has occurred

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Anti-union employers can be quite creative; labour relations boards are often called upon to judge new situations

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As a result, many criteria used to determine successorship have developed through case law

Successorship Most labour relations boards will look for evidence of continuity or control between previous and present form of business: • Continuity – any form of connection between two forms of the business − Some evidence of continuity, no matter how small, is expected to form the basis of an argument that successorship exists − Continuity would be demonstrated by e.g., financial records showing that two businesses were actually incorporated as one or by a new business honouring discounts issued by the old one

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Control – how much direction the management or owners of the previous business give to the new business − The question of control is usually considered if it appears that the employer has established a new entity in order to avoid the obligations of certification − E.g., owner of the unionized business could establish a separate nonunionized business but still give directions and orders to the management of the separate business

•

It is not necessary to prove both continuity and control for a declaration of successorship − Continuity is more important in the sale, lease, or transfer of a business − Control is more important when a new business is established or part of the operations have been assigned elsewhere

Successorship • Other criteria labour relations boards may consider when determining questions of successorship: •

Direct contact - Successorship may be declared if there has been direct contact between the owner or the manager of the previous form of the business and the owner or the manager of the new form of the business - This could include e.g., if the owner/managers knew each other, worked for each other, or had any previous business relationships - Easy to prove if the previous and current owner/manager are the same person

•

Transfer of assets - A labour relations board would also consider whether there has been any transfer of assets between the two forms of the business - New business using assets that were previously owned by the former business would be evidence of continuity - Board would also be concerned with the price associated with transfer of assets, especially if it is very low

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Employer could sell assets at a low price to a friend, close the business, repurchase assets at the same low price, or reopen a new form of business as a non-unionized company Board also looks at the transfer of intangible assets

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Identification - If there was a transfer of a logo or trademark or some other distinctive form of visual identification from the previous business to the new business, this action would likely be considered sufficient evidence of continuity - Logo/trademark is often legal property of business - Also public indicator of business identity

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Transfer of customer lists - A new business having the same customer base as a former business is not, in and of itself, an indication that successorship exists, but the transfer of customer lists from one business to another would indicate continuity - Most businesses do not usually share customer lists, especially with other companies in the same industry or market

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Transfer of accounts receivable, existing contracts, or inventory - Accounts receivable and inventory are both assets that generate revenue for the business - Contracts are assets that will produce future revenue, so they are not likely to be transferred from one business to another except under exceptional circumstances

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Pledges by the successor to maintain the good name of the predecessor or pledges by the predecessor not to compete - These sorts of promises are evidence of continuity because they describe the terms under which the business transition will occur

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Whether the same employees perform the same work - If the new business uses the same employees and those employees are carrying out the same tasks that they did in the old business this could indicate a continuity between the two businesses

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Whether there was a hiatus in business - An employer may attempt to disguise its intent to avoid obligations by closing the unionized business, waiting for a while, and then opening a non-unionized business - Employer might claim that there is no continuity because the second business did not immediately replace the first business - Employer might also use hiatus to avoid obligations like starting negotiations for a new collective agreement

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Whether the customers of the predecessor are now serviced by the successor business - Distinct from the criterion involving customer lists, this criterion looks at whether a new business is serving the same geographic or demographic market or in some other way serves the same customer base as the previous business Another criterion is key person doctrine Successorship may exist if the successor business includes essential individuals from the previous business - E.g., if business has specialized equipment that only a few employees know how to operate or service, successorship might exist if those employees continue the same work at the new business −

•

The onus is on the employer to prove legitimate business reasons for the change

Successorship • A declaration of successorship is issued if the board decides that there is sufficient evidence that: - There was continuity or control between the two forms of the business, or - The changes in the business were motivated by the intent to avoid certification obligations •

The labour relations board can also take a number of other actions to clarify successorship, e.g., altering the scope of the certification or collective agreement, or redefining the bargaining unit

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The board can also order a representation vote if two or more unions are represented in a new bargaining unit and there is a question of which union should represent the workers

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The board can also issue a common employer declaration along with the declaration of successorship

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−

−

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This can be done if a unionized business is expanding to non-unionized locations or if the employer creates a completely separate business entity which s/he owns A common employer declaration states that all the employer’s businesses are considered to be a single business for the purposes of certification and the collective agreement A labour relations board usually issues this declaration where it has been shown that the employer attempted to avoid obligations by moving some or all of the unionized parts of the business to a non-unionized business or part of the business

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If the application for a declaration of successorship is denied, the original certification order continues to exist without any changes

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However, if the business changed substantially, failure to declare successorship may substantially impair the union’s ability to represent workers −

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This is especially true if the union represents workers in what is now a small part of an expanded business or if business has effectively ceased to function

Workers at the new non-unionized business or new parts of the unionized business may apply for separate certification as a new bargaining unit

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Decertification • During the term of the collective agreement, union members may no longer want to be represented by a certified union − They may be dissatisfied with their union or may no longer wish to have a union •

To change a designated bargaining agent, the existing certification must be nullified

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The process used to cancel certification is called decertification

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Decertification provides a way for members to hold unions accountable - Employees can remove the union if they are not satisfied with its representation of them - They can also remove the union if they don't wish to be represented by any union at all - The ability to decertify allows union members to remove “weak, indifferent, or ineffective unions - Employees have the legal right to join a union and thus should also have the legal right to remove one

Timelines • Give newly certified unions a chance to establish selves as credible worker representatives - Not restricting times for decertification after a new certification is issued might not give new unions sufficient time to prove themselves •

Minimize the possibility that decertification applications will be made when feelings about the union are particularly heated, − A common time for this to happen is during collective bargaining − Banning decertification applications entirely during these times would be undue restriction on employees’ right to choose representation − Legislation recognizes that employees might be satisfied with union’s performance most of the time but dissatisfied under certain circumstances e.g. during negotiations because of importance of issues being bargained

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Several jurisdictions ban decertification applications during strikes or lockouts

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Some jurisdictions allow employers, as well as employees or unions, to apply for decertification - This may seem contrary to allowing employees to express their “true wishes” without interference from the employer

▪

To some degree, allowing employers to apply for decertification gives them another way to resist unionization - This has been observed in the U.S., where numbers of decertification applications have increased along with the use of other anti-union tactics by employers - This is much less common in Canada

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Most jurisdictions permit the labour relations board to declare decertification if there is evidence of fraud during the certification process - Fraud is usually e.g., forged signatures on applications for certification - No time restriction on when decertification due to fraud can be declared

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Most labour codes permit employers to apply for decertification, or a board to issue decertification, if there is an abandonment of bargaining rights by the union −

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If the union has not issued a notice to bargain to the employer or has not commenced bargaining, it may be considered to have abandoned bargaining rights If the union is not bargaining then it is not fulfilling its obligation to represent the employees It is fairly unusual for decertification to be granted on the basis of abandonment of bargaining rights Circumstances, e.g., union members unwilling or unable to bargain, may account for the union not issuing a notice to bargain Boards have even refused to declare abandonment when the employer has terminated its employees and closed operations

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The decertification process is similar in structure to certification

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Application must be made to the labour relations board, showing sufficient level of support for decertification among bargaining unit members

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In most jurisdictions, the level of support required is identical to what is required for a certification application - Board will conduct the same process of verification of support as it would for an certification application - This process is somewhat easier than for certification because the bargaining unit is already defined

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Many jurisdictions require a workplace vote after an application for decertification is received - This is mandatory in most jurisdictions in order to ensure that it is not just a dissatisfied minority of workers who want to decertify

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A secret-ballot vote is conducted in the workplace by the board - Simple yes/no question asking if voter wishes union to continue as the bargaining agent

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The vote is successful if a majority (50% + 1 of voters) indicate that they do not want to be represented by the union

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Decertification • Following a successful decertification vote, the board will issue an order of decertification, and the union ceases to legally represent employees •

Any current collective agreement is no longer in force

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Most boards will scrutinize an employer's decertification application to see if antiunion animus exists

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When there is a raiding attempt, a decertification application may be filed for the current union before, or at the same time as, the raiding union applies for certification - Time bars in most jurisdictions restrict when applications can be made to represent already organized group of workers (Table 6-3)

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If the raiding union is successful, a new certification order is issued

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Union Mergers The merger of existing unions is a relatively recent trend in Canada.

• A merger can ensure continued viability of unions, particular smaller ones - More members = more power in bargaining •

Larger unions with shrinking membership may feel a merger will maintain their existence - Membership could be diminishing through downsizing or layoffs

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A union can increase its size through mergers without recruiting unorganized workers - These kinds of mergers usually take place among unions with some common interest e.g., representing workers in same industry or same occupation

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It is a reflection of the general trend in business toward larger organizations - Larger unions may be needed to match the bargaining power of larger employers

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Union mergers may be forced by company mergers, which may raise complicated issues, e.g., seniority criteria - If companies merge, and workers at companies are represented by two different unions, unions are usually also forced to merge, unless there is some compelling reason to maintain separate bargaining units with separate union representation

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Legislation that regulates changes in certified unions is quite similar to successorship legislation

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Both are intended to ensure continuity in union representation

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Union mergers have different effects on an existing certification, depending on the results of the merger

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If one union merges with another or if locals merge within a single union, the affected locals usually apply to the board for a change in the existing certification order • Such changes do not usually require a vote among the affected employees - Board usually has the power to order a vote if it thinks a vote is necessary •

If a business merger results in two unions representing the employees of a single company, employees are usually asked to select one in a vote

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The vote determines which collective agreement will be in effect

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The vote is a secret ballot vote similar to the representation vote

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The certification of the unsuccessful union is cancelled, along with its collective agreement

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Technological Change • Changes during the collective agreement may occur because of changes in the workplace itself •

Work restructuring occurs when technological change alters the content of jobs or how work is conducted

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Technological change encompasses any change in tools that leads to a change in the way the job itself is done − e.g., many jobs in banking have been affected by automatic teller machines

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Technological change may create new situations that are not adequately addressed by the existing collective agreement

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Effects of technological change may be addressed through collective bargaining - E.g., if the collective agreement is expiring and bargaining for a new one is beginning at the time the change occurs, its effects can be addressed in the bargaining for a new agreement

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However, if the collective agreement is already in place, there may be a need for an alternative way to address the effects of technological change - Particularly important if the change will be quick

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There are two ways to address technological change: - Some jurisdictions have legislation dealing specifically with handling technological change - Some legislation permits collective agreements to contain a reopener clause, - This clause allows the union and employer to renegotiate parts of an agreement while it is still in effect

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Technological Change • Five Canadian jurisdictions (federal, B.C., Manitoba, New Brunswick, and Saskatchewan) require employers to give notice of intended technological changes - Notice usually has to include: - Intended date for implementation - Identification of which employees will be affected - Description of the effect of the change - Length of time for notice varies by jurisdiction •

After the notice is issued, the parties either reopen collective bargaining or negotiate a plan for implementation of the proposed change - Notice does not completely protect employees against the effects of largescale change, but at least allows parties to attempt to make adjustments and perhaps negotiate impact of change

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The parties can include specific conditions within the collective agreement itself to address technological change during the term of the agreement - 1987 study of larger Canadian collective agreements (500+ workers) showed that just over half had technological change provision - However, most only required advance notice of change - Less than half addressed change-related issues e.g., retraining, employment security - A more recent survey indicated that 40 percent of collective agreements do not have any language dealing with technological change - Steadily increasing numbers of collective agreements with these types of provisions - Other studies have indicated that labour relations boards are reluctant to enforce these provisions and that the provisions provide little real protection for workers

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The second method of dealing with technological change - the reopener clause allows parties to immediately negotiate new collective agreement terms in order to address change

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Reopener clause permits parties to revise any term in the agreement, by mutual consent, without having to renegotiate the entire agreement Thus if technological change occurs parties can immediately negotiate language to address the change, without having to wait for next round of bargaining

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Workplace Restructuring • Changing economic conditions have led to another type of change during the life of a collective agreement: workplace restructuring •

This includes: - Downsizing in the workforce - Work being partially or completely shifted to other locations, companies, or countries - Increased industry competitiveness leading to changes in working conditions or redesigned work

Workplace Restructuring • Most collective agreements have language in place to deal with layoffs or termination - E.g., the agreement would state the amount of notice given to laid-off or terminated employees, financial compensation for those employees, whether the employer will assist with retraining, and what factors will determine how employees are chosen for layoff or termination •

The union's role in restructuring has not been widely addressed by labour relations boards

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The doctrine of management rights (residual rights) holds that management has unchallenged right to decide workplace changes - unless the collective agreement specifically states that the union must be consulted - In workplace restructuring this would imply that management has the right to make its own decisions on how restructuring will be carried out, as long as the collective agreement does not address that issue - Most collective agreements give management the ultimate right to manage the workplace

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On the other hand, collective agreements also implicitly contain a conflicting principle, i.e., the doctrine of implied obligations

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Implied obligations suggest that the union and employer share the responsibility for the regulation and administration of the workplace - Implication is that once union-employer relationship is established, it is not reasonable to set arbitrary limits that allow only some parts of the workplace to be governed by joint union -management agreement - In workplace restructuring, this would imply that the union, as the employees’ representative, should be involved in planning restructuring because of the impact on employees - Union might have information or expertise that could result in more effective restructuring - Union involvement might also facilitate change; otherwise restructuring might be perceived as unilateral or insensitive management action

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The few labour board cases that do exist suggest there are some concerns that need to be addressed during workplace restructuring In one case, the employer solicited employee input on proposed impending changes; the union argued (and the board agreed) that this undermined the union’s role as the bargaining agent for the employees - In another case, the employer claimed that an employee was demoted because of workplace restructuring, and the employee claimed that the demotion was because of anti-union animus; the arbitrator ruled that restructuring created the need for changes, but there was insufficient

•

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evidence to prove that the change in this employee’s work was due to antiunion animus •

It is not clear whether the employer is legally compelled to include the union in planning or carrying out restructuring

•

Still, the employer must be careful that restructuring does not undermine or bypass the union’s legal role as representative of the bargaining-unit members - Employer requesting input from employees could be seen as bypassing union - Changes also need to be driven by legitimate business reasons - Changes should also not contravene the existing collective agreement

Workplace Restructuring • A study of the steelmaking industry suggests that establishing a strong internal and external relationship with management prior to restructuring, may strengthen the union's ability to represent its membership more effectively in restructuring - I.e., ongoing activities of the union support its effectiveness in dealing with restructuring; unions without existing internal and external resources to draw on will be less effective if/when restructuring occurs •

Study of the Ontario supermarket industry suggests that unions should attempt to ensure the interests of all members are equally represented and defended - Study was examining how a union’s response to restructuring affects different kinds of employees in a heterogeneous workforce

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The union’s duty of fair representation would suggest that the union should be motivated to ensure restructuring does not unduly harm one group of bargaining unit members while protecting or benefiting another group

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Another study of two locals at two workplaces operated by the same multinational showed that the amount of unity within the union affected how the union responded to the same restructuring demands (less unity led to more concessions by the union)

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Unions need to communicate with their members to create internal unity and also so that all members understand the reasoning behind different impacts of changes on different workplace groups

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1. Employers might be tempted to use expansion or relocation as a tactic to avoid the effects of unionization because a certification order names a specific location or business as the employer. If the business expands or relocates, there is a possibility that the certification order will no longer apply because the employer, as described in the certification order, no longer exists in the form described. Employers may be tempted to use this tactic even if it is expensive and disruptive to their operations, because they may feel that any long-term savings from not being unionized will offset short-term losses.

2. The criteria for determining successorship, as outlined in the chapter, can include: • Whether there is continuity between the two businesses • Who has control over the old and/or the new business • Whether there is direct contact between the owner or manager of the old business and the owner or manager of the new business • Whether there is transfer of assets between the businesses • Whether identification of the old business, such as a logo or a trademark, was transferred to the new business • Whether customer lists were transferred between the old and the new business • Whether accounts receivable, existing contracts, and/or inventory were transferred between the old and the new business • Whether there were pledges by the new business to maintain the good name of the old business, or pledges by the old business not to compete with the new business • Whether the same employees perform the same work (especially if there are individuals who are essential to running the business – the “key person” doctrine) • Whether there was a hiatus in business between the two companies • Whether the old business’s customers are now being serviced by the new business 3. Labour legislation gives workers the right to certify and decertify their representation by a union, which allows them to choose how they want to be represented in the workplace. To fully exercise this right, they must have the option of changing representation if they are not satisfied with the performance of their representative union. They should also be able to remove any form of representation if they feel that it does not serve their interests.

4. The most obvious reason why an employer might apply for decertification is to avoid the obligation of dealing with a union. However, an application for this reason would usually not be successful in Canada, because Canadian legislation establishes that employees should be able to freely choose their representation in the workplace without employer interference. Granting decertification because of an employer’s resistance to a union would in effect allow the employer to interfere in the employees’ choice to be unionize. However, an employer would probably be granted

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a decertification if the employer had closed their business, and had applied for decertification as part of ending the business's legal obligations.

5. There are two reasons why the language in collective agreements is not always able to deal with technological change. One is that a change may not be imminent, or may not even be anticipated, at the time that the collective agreement is put into place. The other is that it is not always possible to accurately know in advance the impact that technological change will have on jobs or on the workplace as a whole.

These reasons are why many collective agreements include provisions like reopener clauses or required notification of technological change, instead of exact language dealing with technological change.

6. The more common issues that a union would address in negotiations around technological change are: - the validity of the reason for the change (as suggested by Braverman’s arguments regarding deskilling and management control, outlined in Chapter 2) - the extent of the change and its anticipated impact (e.g., the number of workers affected and how they will be affected, whether the change be immediate or phased-in) - what actions the employer is willing to take to assist workers affected by the change (e.g., retraining, relocation, alternative employment, payments for termination or layoffs) 7. Union participation in the planning of workplace restructuring would be advantageous for a number of reasons. On a theoretical level, if the employer and union negotiate to create a collective agreement that governs the workplace,that implies that the union should also be involved in other decisions that affect the workplace, such as restructuring. On a practical level, the union may have information or expertise that could benefit the employer in its planning, and the union’s involvement may give more credibility to the restructuring effort. However, in many collective agreements management is given the right to deal with any matters not explicitly addressed in the agreement. This implies that management has the sole right to plan a change such as restructuring. Also, the union’s role is to represent the employees, and as such its participation in planning a restructuring of the workplace might not fit with the organization’s longer-term goals, such as responding to needs for change or maintaining competitiveness.

8. The results of a study described in the chapter suggest that there are four factors affecting whether a union achieves its desired outcomes when a workplace is restructured: • • •

The union’s ability to access and to transmit information among its membership The union’s ability to convey its vision to the membership and to mobilize the membership in support of that vision The ability of the union to participate in decision-making around restructuring at multiple times rather than a single time

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The ability of the union to cooperate with management while retaining independence as the workers’ representative

The study results also suggest that relationships established prior to restructuring may strengthen a union’s ability to represent its members effectively during restructuring. In other words, the abilities of unions mentioned above may be beneficial for unions to develop at any time, not only in response to restructuring.

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TEACHING NOTES FOR CHAPTER 12 CASES CASE 12-1 Old Motors, New Motors, and Motor Workers Union This case is based on National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) on behalf of its local CAW-Canada Local 4502, and Herron Chevrolet Pontiac Buick GMC Limited, and W.A. O’Farrell Chevrolet Limited (2010 NSLRB 16). Decision date January 12, 2011.

In this case, the Nova Scotia Labour Relations Board decided that successorship existed. Its reasons were that the “vital essence” of the closed dealership was transferred to the ongoing dealership, and that since the ongoing dealership was operating in the same location and using some of the same name as the closed dealership, the public was likely to perceive the dealership as “the dealership and service centre that it always was”.

However, the Board noted that the number of unionized employees of the closed dealership was “relatively small” in comparison to the number of employees in the same part of the ongoing dealership. Thus, the Board felt that “the Union must be able to demonstrate that it has sufficient support in order to maintain its bargaining rights” (p.

10) and ordered a representation vote.

The Board established the new bargaining unit as including the service and parts employees working in the location formerly occupied by the closed dealership. It ordered that all repairs and parts employees working in that location as of August 6, 2009 – including any unionized employees who had been laid off from the closed dealership – were eligible to participate in the vote. Any employee who had formerly been working at the unionized workplace and was now working at the ongoing dealership was entitled only to one vote.

(The vote was held on February 15, 2011, and the majority of voters voted against representation by the CAW as their bargaining agent. On April 6, 2011, the Board revoked the local’s certification.)

Suggested Discussion Questions for Case 12-1 1) One of the criteria for determining successorship is whether the change in business was motivated by anti-union animus. In this case, the change in business was partly the result of decisions that Old Motors and New Motors had no control over. How relevant is anti-union animus in this situation?

2) Some, but not all, of New Motors’ business is taking place in Old Motors’ former building. How important is the physical location of the business in determining successorship in this situation?

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3) If you were the labour relations board, what would you decide?

CASE 12-2 Robert Dion, Builders Union, and Careful Contracting This case is based on James Smith and Construction General Labourers, Rock and Tunnel Workers, Local 1208, and North Shore Roofing Ltd. [2012 NLLRB 11]. Decision date September 28, 2012.

The board determined that there was insufficient evidence to support the union’s allegation of employer interference, and found that the applicant had not knowingly waived his right of solicitor-client privilege. The board ordered that the applicant’s comments regarding his retention of legal counsel should be removed from the board’s records, and declined to permit the union’s lawyer to question the applicant about the matter.

The board stated that, to some extent, it agreed it was no one’s business who was paying for legal fees or what arrangements had been made to pay legal fees. However, the board stated, it is the board’s business if an employer is paying an applicant’s legal fees for a decertification application, because if this is occurring it would be an unfair labour practice.

The board stated that the union’s argument about the source of the legal fees was primarily based on the assumption that a worker would not be able to pay for legal services on their own. There was no other evidence that even suggested that the employer was somehow involved in the certification application. Therefore, the board ruled, there was no basis on which to order any further investigation or questioning.

With regard to the disputed ballot, the board ruled that vacation was not an “extenuating circumstance” to allow an employee to vote at a different time or by a different method than the official decertification vote. The board ordered that the ballot cast on April 24 to be destroyed, and that the rest of the votes should be opened and counted by the board. The board would then rule on the decertification application based on the results of the vote.

Suggested Discussion Questions for Case 12-2 1) Given that employers generally have more power than employees in a workplace, should a labour relations board be more or less pro-active in investigating allegations of employer interference in a decertification application?

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2) Given that applicants for decertification can represent themselves in interactions with a labour relations board, if an applicant is represented by a lawyer, should a labour relations board take that into account in making its ruling?

3) Under what circumstances should a labour relations board allow voters in a decertification vote to cast their ballots at different times or places, or in different ways (e.g. mail-in ballots as well as in-person ballots)?

4) If you were the labour relations board in this case, what would you decide?

CASE 12-3 Public Workers Union and First Nations Family Centre This case is based on the Saskatchewan Labour Relations Board case Canadian Union of Public Employees Local 4279 and AFS Aboriginal Family Service Centre Inc. et al., indexed as AFS Aboriginal Family Service Centre Inc. and C.U.P.E. Local 4279 (79 CLRBR [2d]). Decision date July 11, 2001.

In this case, the board dismissed the application for the order of successorship. The board’s reasoning was as follows: -

The purpose of the relevant legislation was to ensure that employees’ rights to be represented by a bargaining agent were not defeated by an employer “alienating” its business. To that end, the legislation should be interpreted liberally rather than narrowly. However, it is not always easy to determine when successorship occurs.

-

The board cited a previous case where an agency contracted to operate a special needs transportation service notified the service funder (a civic government) that it would cease providing the service. The contract for the service was then awarded to a consortium of two non-unionized firms. The firms did not employ any of the previous employees of the agency, and used their own equipment in providing the service. In that case the board ruled that there was no successorship because there was no evidence of a sale, a lease, or a disposition of assets. The only change to the service was the substitution of one contractor for another.

-

In the present case, the only connection between the Friendship Centre and the Family Centre, in the board’s opinion, was the use of the same premises and equipment to deliver the program. The board also noted that the Friendship Centre’s program assets did not belong to the Centre but to Health Canada.

There was a hiatus of several months between the two programs, and there was no communication between the two agencies.

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The board determined that although the Friendship Centre program name was used in soliciting new program providers, the program was not the same program, because there was no discernable continuity between the two program offerings. The change in program providers did not, in the board’s opinion, constitute the transfer of a business.

-

In addressing the union’s allegations of an anti-union animus on the part of Health Canada, the board stated that the application before it was not a complaint about an unfair labour practice. Thus, Health Canada’s motivations for its actions were irrelevant to the application being considered.

Suggested Discussion Questions for Case 12-2 1) Should contract workers be allowed to unionize? Why or why not?

2) Do you agree that a renewed contract for the same program is evidence of continuity? Why or why not? Would your answer be different if the renewed contract was given to a different agency, even if the program covered by the contract was similar?

3) The union argues that if successorship is not declared in this case, it will be difficult to organize workers involved in contract programming. How much importance do you think the labour relations board should give to this argument in making its decision?

4) If you were the labour relations board, what would you decide in this case?

NOTE: Because this case involves several different parties and multiple events within a relatively short time frame, students could be encouraged to draw a timeline and plot the case events on the timeline. This method of analysis may help students understand the sequence of events in the case and the relevance of each event to the arguments of each party in the case.

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 12 TOPICS

Successorship A bulletin from the Alberta Labour Relations Board, outlining procedures for applying for successorships, and detailing how the board processes those applications. http://www.alrb.gov.ab.ca/bulletins/21bulletin.html A discussion paper on successorship issues as they relate to outsourcing in government-funded operations. http://publications.gc.ca/collections/collection_2007/ch-pc/CH52-6-1999E.pdf Decertification A website operated by the Canadian LabourWatch Association, an employers’ group that provides answers to workers’ queries including: “How to revoke a union card,” “How to decertify a union,” and, “What unions cannot guarantee.” http://www.labourwatch.com/ Technological Change Includes Article 23 of the collective agreement between the Canadian Food Inspection Agency and the Public Service Alliance of Canada. Article 23 deals with the management of technological change. http://www.inspection.gc.ca/english/hrrh/col/alliance/article16_27e.shtml

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CHAPTER 13 Future Issues for Workers, Work Arrangements, Organizations, and the Industrial Relations System LECTURE NOTES

Chapter 13 Objectives At the end of this chapter you should be able to: ▪ Describe the demographic changes occurring in the Canadian workplace ▪ Identify some of the strategies used by unions to address demographic change ▪ Understand different forms of new work arrangements ▪ Explain how unions have responded to new work arrangements and workplace practices ▪ Discuss new forms of organizational structures and unions’ response to them ▪ Identify factors that may influence Canadian industrial relations in the future

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Changes in Workforce Demographics • Since the mid-1960s, the Canadian workplace and workforce have both changed significantly •

Canadian unions are now facing the necessity of having to adapt to the new realities of work - They must prove their relevance and value to a new generation of workers in a variety of workplaces - Unions were structured to serve a relatively stable workforce in the traditional hierarchical workplaces - This structure of work is no longer the case in many industries/ occupations

•

Factors such as legislative changes and new organizing strategies may determine whether Canadian union membership stays the same, grows, or declines - US union membership has declined over past decades - Canadian union membership has been more stable than in US but has not grown significantly for some time

The composition of the Canadian workforce is changing in many ways: •

There is a wider age range among workers - More young people are entering workforce - Older workers not retiring as early as they once did

•

More women are entering the workforce - Fewer barriers to women working outside the home - Need for multiple incomes to maintain households’ standard of living

•

There is more ethnic and racial diversity in the workforce - Changing trends in immigration - Stronger legislation against discrimination Each trend poses a different challenge to unions

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Young Workers • Part-time employment is more prevalent among this age group than any other •

Some researchers argue this is not a problem For many students, part-time work is their only option

−

•

Some believe that we gain a more accurate picture of youth employment by examining non-standard work, − This category includes part-time work, temporary work, multiple job-holding, and self-employment − more than half of workers ages 15-24 have work that falls into this category − This non-standard work is now commonly referred to as precarious employment

•

The predominance of non-standard work among young people may be a concern because of the insecurity of the employment relationship

Several characteristics of younger workers’ employment make union organizing particularly challenging: •

High turnover rate in the workplaces and occupations - The union’s supporters may suddenly leave the workplace and support for the union may quickly dissipate

•

They are more vulnerable to employer retaliation - Low skill level required in many jobs makes it easy to replace workers - Employers may be tempted to resist unionization by firing or reassigning union supporters, since there is little loss in productivity and little disruption in doing so - Firing or reassigning union supporters is illegal

•

Their employers traditionally display higher resistance to unionization - Generally these employers are in highly price-sensitive markets with small profit margins

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Research indicates that organizing young workers is important to the ongoing success of the union movement as early (positive) impressions of the union movement will shape attitudes into working careers -

Employers may fear that unionization would lead to higher wages and thus to reduced profits

•

Young workers are often unfamiliar with unions or have an unfavourable perception of them - Young workers may not know about unions, or may only have negative information - Parents’ negative attitudes toward unions may influence their children’s attitudes - Young workers may not see unions as helping them in the workplace - There are also negative images of unions in popular culture - However, youths may have a stronger preference for unionization because of experience with unfair workplace practices and because of their labour market experiences

•

There may also be opposition toward organizing these industries or sectors from within the union movement - Some unions believe that organizing part-time or temporary workers encourages employers to create these kinds of jobs rather than full-time permanent ones - Thus, organizing these workers indirectly promotes work arrangements that threaten job security and working conditions - Unions may also not want to incur the cost of potentially lengthy and challenging organizing campaigns in these sectors - Unions may not see sufficient financial benefit from organizing these workers, especially if organizing campaign will likely not be successful

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Female Workers • The number of Canadian women in the workforce has increased steadily over the past few decades •

The majority of Canadian women who work outside the home have full-time jobs - However, the proportion of part-time to full-time workers is higher for women than men

•

As the number of women in the Canadian workforce increases, so has the number of Canadian women who belong to unions - Both percentages – women as a percentage of total union membership, and female union members as a percentage of all working women – are comparable to male workers - However, about 74 percent of public sector union members are female, but only about 12 percent of private sector union members are female

•

Female-dominated workplaces are more likely to support unionization, but most organizing campaigns are in male-dominated workplaces

•

Unions’ ability to represent female members effectively has been hampered by the inability or unwillingness of female workers to participate in union activities - Many female workers have non-work commitments (e.g., family) which reduces their available time for activities like union participation - Women and men do not appear to significantly differ in attitudinal commitment to unions, but men are more likely to participate in union activities

•

It has also been suggested that men are more likely to be elected as union officials, especially at regional and national levels, because of gender-related stereotypes associated with images of leadership.

•

Gender imbalance in union participation may mean that issues of concern to female union members are not adequately addressed - If there are not enough women participating in union to advocate for women’s issues, the importance of these issues may not be recognized

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“Traditional” bargaining goals may not address the needs of a diverse workforce, but this may not be recognized unless there are “non-traditional” participants to point this out

•

Women enter and leave the labour force or change their employment status more often than men, making them harder to organize and represent - This mobility is due to the fact that women tend to be primary responsible for childcare and domestic duties

•

More women are engaging in temporary work, part-time work, and selfemployment - Difficult for unions to organize women workers or represent them effectively when the female participation in the workforce is not linear or consistent

Older Workers • A surprising number of older workers continue to participate in the labour force beyond retirement age •

There are fewer older female workers than older male workers

•

However, the participation rate among older female workers has increased over the past 10 years while the participation rate among older male workers decreased

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Unionization rates for older workers aged 55 and up are comparable to the overall average unionization rate

•

As a result, Canadian unions have not felt the need to increase unionization among older workers - Unions may also prefer to organize younger workers who have more potential years of union membership (and dues payment) ahead of them • Older workers may have trouble demonstrating the benefits of “their” issues to younger workers - This may be especially true if older workers are a minority - While younger workers enjoy the benefits of RRSPs (possibly even more than older workers), retirement security and other age-related concerns may not be a high priority for them

Ethnic and Racial Diversity in the Workforce • There is an increase in the number of workers belonging to visible minority groups - Canadian census defines visible minority groups as Blacks, Chinese, Filipinos, Japanese, Koreans, Latin Americans, some Pacific Islanders, South Asians, South East Asians, West Asians, and Arabs - About 13 percent of the Canadian population falls into one of these groups •

Occupational patterns for visible minorities are very similar to non-minorities: - Women are more common than men in administrative, clerical, sales or service work - Men are more common than women in managerial or professional work

•

Visible minority adults are more likely that non-minority adults to have a university degree However, visible minority workers with university degrees are not as likely as non-minority workers with the same educational level to be employed in higherpaying professional or managerial occupations – this is known as underemployment

•

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This difference is also apparent between visible minority members born in Canada and other Canadians

Ethnic and Racial Diversity in the Workforce • There are many debates over whether employment equity laws are effective or whether they cause reverse discrimination - However, the presence of employment equity law may encourage the consideration of visible minority candidates who might otherwise be ignored •

A recent study indicated that 22% of visible minority workers belong to unions - the comparable rate for non-minority workers is 32 % - it is not unreasonable to assume that problems of including a racially and ethnically diverse membership in unions are similar to the inclusion problems faced by women - Members of ethnic or racial minorities may not be willing or able to be active in a union - They might also be discouraged from doing so intentionally or by e.g., not having the linguistic or cultural skills to participate in activities - This could lead to “their” issues being neglected

•

Members of visible minorities in Canada are more likely than non-minority workers to be employed in difficult-to-organize occupations

•

Immigrants may come from cultures or countries where unions are perceived negatively

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Union Strategies for Dealing with the Changing Workforce • If Canadian unions are to survive and provide effective representation for their membership they will need to change - The characteristics of “traditional” unionism based on the assumption that workers are “masculine, white, heterosexual, [and] full-time” no longer accurately reflect the workforce •

To expand, unions need to recognize the characteristics of diverse sectors of the labour market - Most unions have policy statements dealing with equality issues - Many collective agreements have similar language - However, these statements may not be reflected in action, particularly at the local level

Union Strategies for Dealing with the Changing Workforce (cont) • For example, each of the seven regional section of PSAC has formal groups for women, First Nations, GLBT workers and workers with disabilities.

• Elected director for each group serves on PSAC’s National Human Rights Committee and they hold a National Equity Conference each year • CUPE has attempted to increase the visibility of First Nations members, ethnic or racial minority workers, and gay, lesbian, and bisexual union members - CUPE has two designated "diversity" vice president positions on its national executive, one for a First Nations representative, and the other represents ethnic or racial minority workers

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CUPE has also e.g., sponsored a national conference for gay, lesbian, and bisexual union members

•

Union activities targeting young workers are becoming more common

•

Some researchers suggest that the lack of interest in unionization among younger workers may not be a problem − Unionization likely becomes more important to young workers as they move into more substantive and permanent employment

•

However, some Canadian unions believe that young workers can benefit from unions even if they are in non-permanent positions - Some unions and federations are reaching young workers through social media - Others have initiated education campaigns to reach potential young union members

•

One study suggests that unions are concentrating organizing efforts on growing employment sectors − This shows that at least some unions recognize and are acknowledging the changes in the labour market

•

But declines in union membership result in reduced revenues from membership dues and thus, reduced resources for organizing - This leads to a downward spiral of declining membership and shrinking revenues - However, the most successful organizing campaigns do not use paid organizers but use workers already in the workplace as organizers: the technique of salting, where inside workers with knowledge of the workplace issues can act as influencers for the purpose of organizing

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Changing Work Arrangements • Unionism first evolved in response to the “industrial” model of work - unions were established and developed in workplaces where workers attended work regularly and worked shifts determined by the employer •

Many workplaces are exploring alternative ways of structuring work; this is a new challenge for unions - These alternate ways of structuring work are possible because of advances in technology and also because of the recognition that not all workers are effective or productive in a rigidly structured setting

Alternative Forms of Work Scheduling • Alternative forms of work scheduling include: Flextime – workers are allowed to partially or completely determine their own work hours Compressed workweeks – workers are allowed to work longer shifts in exchange for more days off Job sharing – two employees share one full-time job •

Unions face problems attempting to organize workers on flexible work schedules − E.g., how to contact an employee whose hours or days of work are continually changing − Labour codes generally specify that organizing campaigns should be conducted outside working hours, but this is a problem if working hours are always changing

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Telecommuting • Another flexible work arrangement is telecommuting (telework or e-work) − An employee works partially or completely at home and communicates with the workplace through computers, and telephones − Employer usually specifies work and deadline for its completion, and employees determine how these conditions will be met •

2011 survey found that 11%fo Canadian full-time employees work at home for an average of 8 hours each week. This varies greatly between occupations

•

Telecommuting arrangements contradict the assumption in labour legislation that employees work at a centralized workplace where the employer dictates the conditions and content of work - If workers’ communication with the workplace is solely through the manager or supervisor, it could be very difficult for the union to contact the worker - Selling benefits of unionization also could be difficult if the employer is already responding to the worker needs by providing non-traditional work arrangements

Different Employment Relationships • Non-permanent employment relationships such as contract, term, or temporary work are becoming more available - These may be the model for future career patterns - However, these arrangements offer employers more extensive power to terminate workers, sometimes for unjustified reasons Instructor’s Manual

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Employers may also do things like continually hiring the same person on a series of temporary contracts Thus, the employer gets productivity equivalent to that of a full-time worker, but the worker does not get the full benefits associated with permanent employment

•

Some of Canada’s largest unions have negotiated collective agreements that validate changing work arrangements, but establish rules to regulate their use - Union acceptance of these arrangements is usually tied to the employer providing other security e.g., reduction in overtime or retention of jobs - However, many Canadian collective agreements contain no provisions for flexible work arrangements

•

Canadian film industry is an example of how unions actively address issues relating to non-traditional forms of work through collective agreements

•

Unions have negotiated terms that attempt to balance flexibility in employment and alternative employment relationships with the protection of their members’ working conditions - E.g., members can accept lower wages for jobs that offer skill development, or can take equity rather than wages on local films with small commercial potential - Also there are set levels of staffing on productions funded by non- Canadian companies

•

Unions are reluctant to even suggest any form of non-traditional work arrangements - They may fear that any agreement to this may weaken ability to resist in subsequent bargaining

New Human Resource Management Practices - Changes in career patterns and in worker attitudes toward employment have led many employers to explore new ways to attract and retain employees - E.g. increased career development and training opportunities

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“high commitment” practices e.g. teamwork, problem-solving, direct communication - more employee “voice” - pay structures more clearly linked to performance Research evaluating these practices are not definitive with respect to desired outcomes However their intent is to increase retention by reducing adversarial employer-employee relationships Thus these practices are philosophically similar to alternative approaches to collective bargaining (as described in Chapter 8) -

-

Union Responses to Changing Work Arrangements and Practices • Some unions have negotiated collective agreements that acknowledge nontraditional work arrangements but which regulate their use - Many Canadian collective agreements do not address flexible work arrangements - unions may not see this as a bargaining priority •

There is a low level of unionization in types of organizations where telecommuting is common

•

Challenging to establish language around flexible work arrangements in collective agreements, since “flexibility” differs for each individual and workers are not permitted to negotiate individually with the employer

•

Unions and union supporters also can use technology as employers have - numerous websites with information about unions and union news - unions are using social media to reach potential members and communicate with current members - There is also online labour action - In 2007 IBM workers in Italy had “virtual strike” on Second Life website - Strike resulted in IBM Italy president resigning and a new pay deal for workers - Labour law language is broad enough that “workplace” could be interpreted to cover any place where work and work arrangements take place

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•

Generally, though, unions have been reluctant to suggest any form of non-traditional work arrangement - Higher priority is on maintaining standards associated with full-time permanent work - Fear that agreeing to any form of flexible or non-traditional work will weaken their ability to protect full-time permanent employment - Some policies/practices may also reduce union’s role as representative and voice of workers

Changes in Organizational Structures • Traditionally structured industrial organizations have several distinctive levels of hierarchy •

Authority and power are greater at higher levels of the hierarchy, with the most power and responsibility concentrated at top - Non-managerial workers are at the bottom with the least amount of power

•

One of the reasons to form unions was the dissatisfaction with traditionally structured organizations - Employees at the bottom of the hierarchy had little opportunity to participate in decision-making, especially on issues that directly impacted employees - Union provided a means for the employees to have a formal voice

•

Some factors have revealed limitations in traditional organizational structures: - Changes in the structure of markets – e.g. globalization; hierarchical structure does not adapt well to multiple locations/cultures - Changes in the purpose of organizations - e.g. broader product or service offerings; hierarchical structures does not adapt well to achieving new goals or innovation - Increased rate of change and need for information also shows that top-down flows of information are inefficient

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Changes in Organizational Structures • Organizations are exploring other forms of structure: - The flatter organization: involving decreased levels of hierarchy - Matrix and network (or web) organizations: involving more equitable distributions of power

•

New forms of organizational structure are problematic for unions - They reduce or eliminate traditional distinctions between employers or managers and employees - Labour law usually excludes managers from bargaining units - Bargaining units may be difficult to organize if there are few clearly defined boundaries between employees and managers

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Changes in Organizational Structures • Unions may also have to deal with practical problems associated with structural change, such as: - Downsizing - – the elimination of jobs or changing full-time work to part-time - Changes in job content - The way that jobs are done or the combination of tasks that make up a job may change to reflect new interrelationships or reporting responsibilities

Union Responses to Changing Organizational Structures A balancing act for unions: • The organizational structure is sometimes changed to a form that encourages more cooperative worker-employer relationships •

Control and direction of work remains with the employer

•

Unions still have a role to play in ensuring that workers’ issues are addressed

However, a union’s opposition to needed change may impair an organization’s chances for long-term survival

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Union Responses to Changing Organizational Structure Examples of union responses to changing organizational structures: •

The Canadian Auto Workers were involved in the restructuring of the auto industry in 2009 - Restructuring involved plant closures and job losses - CAW wanted to retain benefits and pensions for retired and terminated members - Canadian government required restructuring in return for subsidies - CAW renegotiated some agreements, gave some concessions in exchange for retaining some practices, and collaborated on structural issues - CAW acknowledged that survival of auto industry is key to its own survival CAW also signed ‘Framework of Fairness’ agreement with Magna International in 2007 - Magna’s structure emphasizes cooperation and individual responsibility - CAW was allowed to organize workers in exchange for agreeing not to strike (final offer arbitration to be used instead to settle bargaining disputes) - As of 2009 three Magna plants have unionized - Some workers complain that their concerns have been ignored in bargaining - Framework has also been criticized for compromising union’s independence and for weakening union’s ability to successfully negotiate acceptable contract

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Globalization • The way that the world once did business is changing - Emergence of large multinational organizations with large amounts of resources - improved technologies - better communication and transportation - increased production capacities - liberalized trade •

These changes have implications for workers and employers - labour market is no longer constrained by availability, skills or cost of labour in their immediate geographic area - improves competitiveness and raises the issue of how to effectively regulate this new environment

•

Three models explain the possible effects of globalization on employment relationships: -

-

globalization model • pressures of globalization are so strong that there will be little difference in how countries conduct employment relationships • workers will not have the power to ensure standards that are different from the norm institutionalist model

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• •

-

existing differences will result in different responses to globalization existing differences are well established and will not significantly change even with pressure from other parts of the world integrated approach • both institutional and economic factors will influence how globalization affects the regulation of employment relationships in a particular country or region

Globalization has become an increasing concern for Canadian unions - effects to date have not been as extreme in Canada as in other countries - but in other countries, basic worker rights taken for granted here (e.g. occupational health and safety, minimum wage) do not exist or are not enforced - this is particularly true in countries that want to encourage international commerce and want to discourage any activity (e.g., unionization) that they perceive as threaten to their economy - this attitude leads to the “race to the bottom” where work migrates to whichever countries have the lowest labour costs (weakest employment standards), and there is a downward spiral as countries struggle to demonstrate their advantage over another region

•

Challenges that unions face related to globalization: - difficult to counteract the power of large multinationals - difficult to organize across multiple locations and countries - similar problems to that faced in early days of unionization in Canada

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•

different labour laws in different jurisdictions some countries ban unionization completely others do not permit foreign unions to organize their workers in other countries unions are controlled by government

Example of effects of globalization: the garment industry - Strong unions in early 1900s made significant improvements to working conditions - Now sweatshops exist again and union density is declining

Why did this change happen?

- changes in industry itself - price-sensitive market - constant pressure to produce goods cheaply and efficiently - goods produced through multiple subcontractors - increasing role of imports and international production - work can be subcontracted domestically or internationally - manufacturers may have no choice but to make goods in region with lowest costs if they want to stay competitive - automation - increased automation means low capital cost to enter industry - small organizations rely on high production or low wage costs - automation has also reduced expertise needed to work in industry - many jobs are low-skill - many workers lack skills to work elsewhere - abuse of workers is common

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Union Responses to Globalization - lobbying for labour-related standards in trade agreements - Canadian unions have lobbied to put employment and labour standards in agreements, along with enforcement mechanisms - Standards in North American Free Trade Agreement (NAFTA) are in a side agreement - Using the strategy to address globalization through partnership with international unions or federations (“international framework agreements”) - Labour-related complaints have been filed under this agreement but none have resulted in sanctions against employers - Unions now believe standards should be in main agreement and also have meaningful enforcement mechanism - Canadian Labour Congress is lobbying for this in Free Trade Area for the Americas agreement and other proposed trade agreements - partnering with or supporting local unions - Canadian unions provide organizing expertise or resources to new or smaller unions - Some Canadian unions also involved in “living wage” programs, which lobby for legislation requiring businesses that benefit from taxpayer funds to pay wages at or above the local poverty level •

These strategies are not designed to increase unions’ own membership, but are based on the principle that “a rising tide lifts all boats” - a basic goal of the union movement is to improve conditions for all workers, not just union members - but improving wages and conditions elsewhere may make moving work out of Canada less economically attractive

•

Unions have also addressed domestic or international economic conditions as a way of strengthening their domestic position - example is UNITE, the union that historically represented the North American garment workers - initially responded to non-domestic industry by promoting boycotts and encouraging North American manufacturers not to move jobs - this strategy did not work

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UNITE has strengthened itself by merging with other unions and by widening its membership base to include garment-related industries (e.g. laundries, uniform manufacturing) These strategies have been criticized for not paying enough attention to the problems of immigrant and non-domestic workers

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Factors Influencing the Future of Industrial Relations in Canada What happens next?

• Some researchers question whether a system based on an industrial and hierarchical model of organization can continue to be effective •

Other researchers suggest Canadian unions will soon encounter the same troubles as those occurring in the U.S.

•

Still other researchers argue that the Canadian industrial relations system is healthy and will remain that way

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Legislation • One significant difference between the Canadian and American industrial relations system is jurisdiction •

There is little consensus on whether the comparative decentralized Canadian labour legislation will help or hinder Canadian industrial relations in the future

•

Some researchers argue that decentralization is appropriate in Canada because of the wide variations in labour markets and in the types of employment - This model allows each jurisdiction to create legislation appropriate for the conditions in its own area - Centralized legislation in the U.S. may have restricted union growth because legislation is not appropriate for all parts of the country

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However, decentralization has also been characterized as hindering the growth of Canadian unions

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Employers and unions need to accommodate the variations in legislation across jurisdictions - Not a problem if the employer is only in one province, but it is a problem if the employer operates in multiple jurisdictions

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A more significant factor is the content of the laws themselves

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In the past decade, several provincial governments have altered labour legislation in ways that suggest they believe the system does not foster healthy, competitive enterprises

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The Conservative government in Ontario altered the Labour Relations Act in several significant ways during the 1990s

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One of the results of those changes was that certification became more difficult - certification votes became mandatory rather than optional - this has recently changed to allow certification based on majority support, but only in the construction industry

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In May, 2002, the Liberal government in B.C. made several revisions to the Labour Relations Code: - The option of automatic certification was removed -

The B.C. Labour Relations Board was given eight specific criteria that it must consider in its interpretation and application of the code Language governing communication during an organizing campaign was broadened considerably

In 2007, the Saskatchewan Party government in Saskatchewan: - changed essential service legislation and gave the employer the power to determine essential services levels if employer and union cannot agree - eliminated automatic certification - raised level of employee support for certification applications from 25% to 45% In 2010, the same government - allowed all unions to organize construction workers (not just construction unions) - allowed unions to organize all workers on a construction site (not just those in a specific trade or occupation) - amended decertification legislation to make decertification automatic if union had not represented any workers at a company for three years - 2013 the Trade Union Act was combined with other employer-related legislation to form the Saskatchewan Employment Act. - Provides for more union transparency, secret ballot vote for unit certification and redefined meaning of “supervisor” -

Adjustments to legislation tend to be marginal and then to be offset by changes in the opposite direction

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The effect of changes may be minimal if changes are not made to other parts of the same legislation

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The effect of changes may also be moderated by how the legislation is applied or interpreted

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Political Influence • The varying political success of the NDP has led some observers to question whether labour's affiliation with this party is a threat to the future of the labour movement - As discussed in Chapter 3, the affiliation is not as formal as in other countries - NDP received less than 20 percent of the popular vote in recent federal elections - In the 2011 federal election, the NDP gained the second largest number of seats in Parliament, which gave it the status of Official Opposition.

- Even with this increased presence at the federal level, NDP’s ability to be a political advocate for labour issues across Canada remains limited - After the passing away of Jack Layton NDP government has been criticized for abandoning the social democratic principles of party •

In order to have a meaningful voice in shaping public policy, the Canadian labour movement needs to be aligned with a political party that has sufficient representation or support

•

It appears the NDP is no longer able or willing to fulfill that role

- Unless the labour movement and the NDP are able to rebuild their formerly productive relationship, the labour movement must seek other allies through which to build political influence - No feasible national alternative to the NDP has emerged •

American unions have responded to their lack of political influence in several innovative ways - Democratic Party is the U.S. national party traditionally supported by labour, but labour law reform has been difficult even when the Democrats controlled the federal government - President Obama elected with support for large American unions, but Employee Free Choice Act to change US labour law is still going through legislative process

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American labour movement has also had to deal with nearly two decades of “neo-liberal” policies that have, in some researchers’ opinion, weakened union power The American Federation of Labor-Council of Industrial Organizations (AFLCIO) has explicitly changed its strategic focus to include four main areas – stating labor movement is in crisis: - organizing a stronger working-class movement, including organizing workers who may not legally be able to join a union; building alliances with organizations representing or assisting workers; form alliances with other progressive and liberal groups, such as environmental advocates and student activists; and gaining more political power through supporting candidates in elections at all levels of government Acknowledgement that globalization means competition between workers in all countries, and so the labour movement should promote policies that benefit all workers

•

Many Canadian unions and labour federations have adopted policies similar to the AFL-CIO policies

•

The Canadian union movement has taken steps to form alliances with other social activist groups • E.g. in community-based coalitions around health care, public transit, privatization of utilities • Have also been involved in mobilizing protests against anti-worker and antilabour policies

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It is debatable whether these types of alliances will create the degree of influence necessary to significantly affect government policy

•

The Canadian labour movement may have to choose between attempting to rebuild the NDP and actively supporting labour-friendly candidates who may not represent NDP - studies have shown that union members are more likely to vote than nonunion members - strategic voting attempts to build on this by encouraging voters to vote for prolabour candidates with best chance of winning, or to vote for candidate with best chance of beating anti-union candidate

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Union Organizing • Canadian union density has not decreased as union density has in US, but neither has it shown any significant increase - Reasons for this plateauing: - Lack of growth in the highly unionized public sector - Lack of union organizing attempts in labour markets sectors that are growing e.g., retail, service, sales, part-time, temporary, contract - Better union security provisions in Canada protecting existing unionization •

Opinions are mixed on whether Canadian unions will be able to pursue a strategy of growth given the stagnation of the past two decades

•

The negative argument: - Unions have achieved only modest increases in density rates in the past 20 years for part-time workers - They have also made almost no improvement in unionization rates in major parts of the private sector - Either unions are not succeeding in organize these workers, or their attempts to do so are minimal - Available evidence suggests the second reason is more accurate - Canadian unions prefer to rely on bargaining successes rather than undertake new organizing campaigns, and prefer to organize in traditional jurisdictions

•

The positive argument: - The major differences between U.S. and Canadian labour law may at least ensure that Canadian union membership remains steady - One factor in favour of Canadian unions is that most Canadian laws restrict the use of replacement workers during strikes (unlike U.S.) - This restriction helps Canadian unions achieve desired outcomes in bargaining - Certification is also much easier in Canada (US law makes representation vote mandatory, while Canadian law has e.g., automatic certification) and Canada has stronger sanctions against employer interference in organizing

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•

Membership may grow as Canadian unions adapt to changing workplace realities • Two examples of growth strategies: • UNITE HERE hotel workers in Toronto (Local 75) • Represents large and diverse workforce at multiple locations • Industry has many national and international corporate employers • Union shares expertise across workplaces • Union negotiates “master agreement” for multiple worksites • Union “bargains up” to common standard if master agreement cannot be reached • Union organizes in existing and new locations before they open • This is called a “spatial circuit” of union renewal because of continual adaptation and strategy refinement - BC pulp mill workers in 2009 o Were about to lose their jobs because their mill was to be shut down o Formed coalition with employers and investors to purchase and upgrade the mill o Agreed to 11-year collective agreement which allows workers to perform any job they are qualified to do

Another example of this sort of adaptation is demonstrated by unions in the entertainment industry in the U.S. (similar model exists in Canada) - Entertainment industry is one of the most heavily unionized industries in the US and has remained so over the past 70 years in the face of opposition from employers and changes in technology •

These unions do not focus on bargaining individual agreements for each workplace or project, but aim to achieve standard or national agreements with major employers - This bargaining structure forces unions to address major issues affecting overall employment

•

They have bargained not only for wages, but for mechanisms that will protect their members’ employment prospects and skill development

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•

E.g., residual payments provide compensation each time a production is presented or reissued; these payments provide income for members during periods of unemployment

They place a high priority on providing services to members - E.g., audition notifications, help with tax returns, dispute resolution systems, and promotion of members to producers seeking special skills or abilities

Canadian film industry unions follow this same U.S. model and Canadian unions outside of the entertainment industry may benefit from learning lessons from these successful US and Canadian examples

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SUGGESTED ANSWERS TO DISCUSSION QUESTIONS 1. Unions who oppose non-traditional forms of work usually believe that these forms oppose the goal of job security for workers. They believe that employers may be tempted to replace permanent full-time jobs with these forms of work, because these forms of work usually pay less and offer fewer benefits than full-time permanent positions with the same job duties. Unions may also be concerned about the lack of job security for workers employed in these forms of employer-employee relationships.

2. The first major difficulty that unions face in organizing service workers is these workers’ variable work schedules. It may be hard for unions to contact employees outside of work, since the employees’ work hours are continually changing. The union may run the risk of contravening labour legislation if it contacts employees during work hours, even inadvertently. Another difficulty is that since many service jobs are low-skill jobs, the employer can easily replace workers; this may tempt employers to fire or reassign union supporters, even though such actions are illegal.

Organizing may also be difficult because of the high turnover in many service occupations. If workers promoting unionization suddenly leave a workplace to pursue other opportunities, support for the union in the workplace may quickly dissipate. Also, many Canadian unions have not attempted organizing campaigns in service-based workplaces, and are more likely to organize workplaces, occupations and industries where they have more experience or where the organization operates using the traditional “industrial” model. This means that many Canadian unions do not have the experience or the knowledge to develop successful organizing campaigns for service workers.

3. The difficulties that unions face in organizing female workers: • • • •

• •

While women may be more likely than men to vote for union representation, unions tend to undertake organizing campaigns in male-dominated workplaces Because of non-work commitments, women may be less willing or able to participate in union activities If women are not active participants in unions, their issues of concern may not be raised, or may not receive priority in bargaining Some “traditional” union goals are mistakenly conceptualized as being gender-neutral, but if women are not active in the union and do not point out when traditional goals do not serve diverse populations, issues that are important to women may be further marginalized Women leave and re-enter the workforce more often than men do (primarily because of childcare and domestic responsibilities), meaning their union membership and participation may also be interrupted Women are more likely to be employed in non-traditional forms of work

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The difficulties that unions face in organizing young workers: • Young workers’ employment is primarily in the more unstable parts of the labour market • Union membership in the 15-24 age group is the lowest of any age group in the Canadian labour force • Young workers are often unfamiliar with unions and their operations, or have negative perceptions of unions • Unions themselves may oppose organizing in the industries or sectors where young workers tend to be employed The difficulties that unions face in organizing visible minority workers: • There are more visible minority than non-visible minority workers in manual labour, sales and service jobs; unions have not been successful (or have not really tried) to organize workers in these types of occupations • Members of racial and ethnic minorities may not be willing or able to participate in union activities, because of non-work commitments, because of linguistic or cultural differences, or because of discrimination (explicit or unintentional) • Immigrant visible minority workers may come from countries where unions are perceived as corrupt, or where union members are targets of violence; even though these conditions are not the norm in Canada, individuals with this experience may be reluctant to join unions 4. Unions have paid relatively little attention to organizing older workers because the rate of unionization is already relatively high among this age group, or because unions may not see much value in spending resources on organizing workers who are closer to retirement age. Unions may not address older workers’ concerns because some of these workers’ concerns may be included in other issues (e.g. mobility issues as a result of aging may be addressed as part of initiatives to encourage accessible workplaces) or because older workers are a minority within the union’s overall membership.

5. The suggestions for other strategies that unions could use to organize diverse workforces will likely depend on the individual student’s perspective. The student should be expected not only to suggest organizing techniques but also to explain why they might be effective, or why they would be better than or different from the techniques identified in the chapter.

6. Telecommuting is a challenge to traditional labour relations processes because the employer-employee relationship when a worker telecommutes is in a different form than the standard employer-employee relationship. The employee’s main contact with the employer is usually through a manager or supervisor, and the employee does not work in the same location as the employer. Thus, it could be very difficult for a union to carry out such basic labour relations activities as contacting the employee to assess interest in a union.

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7. In a traditional organizational structure, which is a hierarchical structure, the “higher” the level in the organization, the larger the amount of power and authority. Thus, the positions at the top of the organization have the most power and authority, and the positions at the bottom the least.

8. Newer forms of organizational structure are generally non-hierarchical and have less clearly defined divisions between employees and management. These newer structures pose challenges to union-employer relationships because employeemanager relationships are not the same as those implicitly assumed in labour legislation and in labour relations processes. For example, most labour legislation in Canada does not permit managers to be included in the same bargaining unit as the employees they supervise. Thus, it might be difficult to organize a union if there are no clear divisions between employees’ duties and managers’ duties.

9. The individual student’s perspective on the future of industrial relations in Canada will influence their answer to this question. The student should be expected to adequately support whichever position they take, to justify the importance of the factors they identify as having an impact, and to outline the impact they think those factors will have.

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TEACHING NOTES FOR CHAPTER 13 CASES CASE 13-1 Pinetree Lodge and Residence Employees Union This case is based on The Government Council of the Salvation Army in Canada, Sunset Lodge and Hospital Employees’ Union, indexed as Salvation Army in Canada and H.E.U. (BC Labour Relations Board,103 CLRBR [2d]). Decision date January 16, 2004.

The board dismissed the complaint that the employer reneged on an agreement on scheduling, but upheld the complaints of bargaining in bad faith and surface bargaining.

The board’s reasoning was as follows: -

The board ruled that by posting part-time positions the employer did not renege on an agreement to create full-time positions. The board determined that the only agreement in place at the time of the posting was an agreement by the parties to discuss the issue of full-time and part-time positions. The action of posting the part-time positions did not prevent the parties from addressing that issue in bargaining. The board pointed out that the parties had reached an agreement that the employer would increase the number of full-time positions if the bargaining unit members agreed to waive the collective agreement’s limitation on shift length, and that the union had failed to fulfill its promise to canvass the bargaining unit members on this issue. Unless the union members agree to change the limitations on shift length, the parties do not have an agreement, and thus the employer cannot be guilty of reneging on an agreement that does not exist.

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In assessing the allegation of bargaining in bad faith, the board established that “good faith” is not a self-defining term. It is not enough for an employer to simply state that it has bargained in good faith, as it is unlikely that an employer “would come to the [b]oard and assert that it has no intention of meeting in good faith” (p. 313). Thus, the board must assess the employer’s intentions not by what it asserts, but rather by its conduct.

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The employer stated it needed $200,000 in cost savings from the union, but then refused to indicate how it arrived at that figure. The board stated, “In my view, such a posture is an invitation to disaster, and a virtual guarantee that no meeting of the minds take place. The reason why I say this is because not disclosing costing methodology sets up a scenario of comparing apples and oranges which is a dispute waiting to happen. It invites action at cross purposes” (p. 313). The board stated that setting the groundwork for such a scenario did not reflect a desire to achieve an adjustment plan and did not indicate that the employer truly valued its relationship with the union.

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The board further noted that it was “purely coincidence” that the union’s cost estimates were close to the employer’s, and stated that the figures might not have been as close as they were if the union had not challenged the employer’s original estimate of staffing hours. In the board’s view, “just because [the union] dodged a bullet does not excuse or in any way alter the character of [the employer’s] conduct in refusing the needed costing information” (p. 315).

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The board also stated that it would not have taken the employer any significant amount of time to provide the union with the job descriptions and schedules that it requested, as these were easily available, and that the employer did not provide a reasonable excuse for not providing copies of the layoff notices.

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Assessing this pattern of conduct as a whole, the board concluded that the employer was bargaining in bad faith.

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In assessing the allegation of surface bargaining, the board rejected the employer’s argument that its objective had always been to obtain the terms of the unratified collective agreement. The board stated that the employer kept reiterating the $200,000 cost-savings figure to the union, and indicated that it was prepared to find the remaining $75,000 in savings elsewhere. However, the costing of the unratified agreement was close to $400,000. The board found it inconsistent for the employer to say that it only needed $200,000 in savings, but then to insist that it wanted the considerably greater savings it would have achieved if the rejected collective agreement had been ratified.

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The board determined that the employer did not provide the union with a clear explanation of why the employer changed its bargaining position at the last meeting by making extra demands for concessions. The board speculated that the employer was concerned that the one-time grant from the regional health authority would not cover as much of the budget shortfall as it was expected to, and thus the employer felt it necessary to make extra financial demands of the union. However, this was not explained to the union at the meeting, nor did anyone from the regional health authority provide any information to the board about this possibility. The only explanation presented to the board by the employer was that not paying the negotiated increases was always part of the employer’s proposal, and that the union had simply misunderstood this. The board did not accept this as a reasonable explanation. Thus, the board concluded that the employer was engaging in surface bargaining.

The board was then faced with fashioning a remedy. The union requested that the employer be ordered to engage in good faith bargaining; that the 60 days’ notice of change specified in the labour relations legislation be calculated from the date the board releases its decision, rather than from the date the layoff notices were issued; that the employer be ordered to produce all of the information that the union has requested; and that a make-whole order be issued for the affected employees. The employer stated that a make-whole order and a change to the calculation of the 60-day period would be

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inappropriate, and all that was needed was an order for disclosure and for negotiations to resume.

The board stated that in its opinion there was no significant loss to the union or its members because of the parties’ failure to agree on an adjustment plan. Thus it did not change the calculation of the 60-day period or issue a make-whole order. The board ordered the employer to produce the requested information and the parties to start negotiations in good faith within the next ten days, or within another time limit if one could be agreed upon by both parties. The board also ordered the employer to cease and desist from any further breaches of the relevant labour legislation.

Suggested Discussion Questions for Case 13-1 1) When an employer wishes to make significant changes in how a workplace operates, how much responsibility does the employer have to share those plans with the union? Should the employer have to involve the union in creating or implementing these plans?

2) In a situation involving layoffs of unionized workers, how can the union attempt to ensure that all its members are treated fairly?

3) When an employer provides information to the union on future plans for the organization, do you feel that the employer is obligated to provide information on its methodology in developing those plans? Why or why not?

4) In this case, the employer alleges that negative information about the layoffs is being given to the media, and cites this as a reason why it does not want to provide certain information to the union. If you were the union, how would you respond to these claims?

5) If you were the labour relations board, what would you decide in this case?

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WEBSITES WITH MATERIAL RELATED TO CHAPTER 13 TOPICS

The Changing Canadian Workplace Study of Union rates across gender, age, and region http://www4.hrsdc.gc.ca/.3ndic.1t.4r@-eng.jsp?iid=17 Ontario-based and national resources for information on alternative work arrangements. http://onwin.ca/en/about_us/ Summary of results of large-scale national study on work-life conflict. http://www.hc-sc.gc.ca/ewh-semt/pubs/occup-travail/balancing-equilibre/indexeng.php#a1 Statistics Canada’s home site. The agency has a wealth of demographic and labour market data and studies. Statistics include participation rate and union density data. http://www.statcan.gc.ca/ Young Workers The Canadian Labour Congress has information on organizing youths. http://www.canadianlabour.ca/human-rights-equality/youth http://www.heu.org/campaigns-issues/campaign-tips Homepage for the Hospital Employees’ Union campaign resources page.

Minority Workers A survey of research findings about the workplace experiences of minority workers in Canada. http://www.hrsdc.gc.ca/eng/labour/equality/racism/racism_free_init/george-doyle.shtml Older Workers A survey of Canadian collective agreement provisions addressing issues for older workers. http://publications.gc.ca/collections/Collection/RH54-10-2002E.pdf Non-standard Work Non-standard work arrangements. Part of The Way We Work: a CBC News Special Feature on CBC News Online. http://www.cbc.ca/news2/work/nomore9to5/234.html

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Legislation An article on Saskatchewan unions’ responses to the changes in the province’s labour law. http://www.publicvalues.ca/ViewArticle.cfm?Ref=00432

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