LW1210 – Labour Law in Canada Stage 3 - Negotiating a Collective Agreement With Paul Tilley

Collective Bargaining  the negotiation between representatives of workers and employer(s)  establish terms & conditions of employment that are acceptable to both sides  power in numbers is the philosophy behind unions and collective bargaining  single unskilled or semiskilled workers are easily fired and replaced

Collective Bargaining  union and management try to reach an agreement on such issues as pay, pensions, workload and holidays  once an agreement is reached a contract called a collective agreement is signed by both sides that state the terms of the agreement and how long it is in effect

How Do Negotiations Work?  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 counter-proposals 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  If an impasse is declared the parties may:  Take a short break  Ask for third-party intervention  Undertake a strike or lockout  Each of these actions is intended to make the parties return to the bargaining table so an agreement can be concluded

Video: Final Offer NFB  The filmmakers were given remarkable freedom to record the historic 1984 contract negotiations between the United Auto Workers and General Motors Corporation. Bob White, labour leader of the Canadian branch of the UAW, must also confront his American counterpart from Detroit and succeeds in arriving at a contract that is significantly Canadian. His members had already given him a mandate to fight for independence from the American union. This is an invaluable document for anyone interested in the complexities of United States-Canada relations. It's an extraordinary film about revolutionary events. Final Offer

Video: Roger and Me Roger and Me Voted Best Documentary of the year by The National Board of Review, The National Society of Film Critics, The New York Film Critics Circle, and the Los Angeles Film Critics Circle, this is a highly personal, wryly humorous look at the closing of several General Motors plants in Flint, Michigan, the hometown of filmmaker Michael Moore (Emmy-nominee for "TV Nation"), which resulted in the elimination of 35,000 jobs.

3 Phases of Collective Bargaining Phase 1 Preparationfornegotiations Phase 2 Face-to-face negotiations Phase 3 Approving the proposed agreement

Phase 1 Stages of Union-Management Negotiations Phase 1  Pre-negotiation Stage  Each side determines its priorities, goals and ultimate proposals for the upcoming negotiations; some proposals are considered essential, while others may be traded or “dropped off the table” once negotiations have begun  It is common for the two sides to meet jointly during this stage to sound each other out informally on negotiating protocol and procedures

Establishing the Bargaining Range  This stage typically begins at the first formal bargaining session  Both parties introduce their bargaining team members and present their proposals  Usually, the chief negotiator for each side orally presents the rationale for each proposal to the other side  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

Establishing the Bargaining Range  Purposes of oral presentations:  Establish the bargaining range  Demonstrate each side’s degree of commitment  Provide an opportunity for each side to explain the reasoning behind its proposals and thereby influence the perceptions and expectations of the other side

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

Narrowing the Bargaining Range  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  Bottom line – absolute minimum the team would be willing to accept  During this stage, both sides start to retreat from their original positions in an attempt to find a point where a mutually satisfactory resolution can be reached

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  The timing of counter-proposals and concessions is crucial during this stage; both sides must exhaust their arguments for their own positions  This is often the longest of all the bargaining stages

As Negotiations Proceed…  Now that we have seen how the negotiation process starts, we turn our attention towards the latter phases where one of two outcomes can Occur:  POSITIVE: Negotiations take place in good faith and an agreement is reached without any assistance or job action  NEGATIVE: An impasse occurs, good faith diminishes, and the collective bargaining process looks as if it may end in failure and possible job action

What is Good Faith?  Both union and employers are required by law to bargain in good faith  Good faith means that both sides must submit their proposals, consider each others proposal, articulate arguments in favour of their respective proposal and against the other’s position and search for common ground in a serious attempt to reach an agreement.

POSITIVE OUTCOME Negotiations take place in good faith and an agreement is reached without any assistance or job action  Most negotiations proceed and conclude successfully  Once an agreement is reached both sides need to ratify the agreement and then sign it.  Ratification is necessary once terms are agreed upon  The teams return to their constituencies and present the negotiated terms for approval  The union will generally conduct a membership vote and management will review the agreement with all relevant stakeholders  The agreement is then binding on each side for the negotiated term of the contract

NEGATIVE OUTCOME An impasse occurs, good faith diminishes, and the collective bargaining process looks as if it may end in failure and possible job action  Bad Faith, poor communications, and vast distances between each side’s respective goals lead to trouble in negotiations.  Before a strike or lockout there are measures that are, or can be taken to break the impasse.

What Constitutes Bad Faith Bargaining?  Refusing to meet  Refusing to recognize the duly elected union by the employer  Not giving the negotiation team the power to bargain  Superficial attempts to bargain “Surface Bargaining”  Misleading or lying – Deception  Withholding important information  Deliberately provoking the other side  Refusing to justify a position  Refusing to make every reasonable effort to enter into a Collective agreement.

What happens if both sides can’t agree?  Third Party Assistance - Conciliator  At any time after the “notice to bargain” letter is issued by the union, either party can request the Minister of Labour for the assistance of a government conciliator.  The conciliator confers with both parties and within 14 days after being so instructed or within the period that the minister may allow, makes a report to the minister setting out:  the matters upon which the parties have agreed;  the matters upon which the parties cannot agree;  a statement as to the advisability of appointing a conciliation board with a view to effecting an agreement.  There can be no strike or lookout before this step is complete.

What happens if both sides can’t agree? (2)  Third Party Assistance – Conciliation Board  If a conciliation officer fails to help the parties reach an agreement or in a case where the minister considers it desirable to do so, the minister may appoint a conciliation board for the purpose of trying to bring about an agreement between the parties.  A Conciliation Board consists of a chairperson and 2 members, one appointed by management, the other by the union  The 2 appointed members must within 5 days nominate a 3rd person who is willing and ready to act to be a member and chairperson of the conciliation board.  The full board has 14 days to report its findings and recommendations to the minister.

What happens if both sides can’t agree? (3)  Third Party Assistance – Mediation  Mediation is another type of third party assistance that is similar to conciliation, however it:  Does not involve a government conciliator, instead the mediator is mutually selected by each side.  Is not mandatory  Can occur at any time in the negotiating process  There are two advantages to a mediator over a conciliator:  Both sides had a role in selecting the mediator  s/he can work with the parties through the dispute

What happens if both sides can’t agree? (4)  Third Party Assistance – Fact Finding  Fact finding involves a third party person being called in to investigate the situation and then report the facts.

The Practice of Conciliation/Mediation  The C/M meets with the parties together to hear the issues.  The C/M meets with the parties individually to access their “movement potential”.  The C/M may suggest possible solutions to the parties  The C/M may suggest creating subcommittees to address specific issues  The C/M assesses the opportunity for an agreement and if s/he feels one is possible s/he works to put pressure on the parties to seek a settlement.

ARBITRATION Third Party Determination  A third party can be brought in to decide on the terms and conditions of employment  This is know as Interest Arbitration  Interest Arbitration is rarely used because the power to decide the cost and benefits of an agreement is left in the hands of an outsider.  Most Interest Arbitration is Voluntary, however in some cases, in some work locations it is compusury (normally in essential services)  First Contract Arbitration (FCA) is a statutory mechanism that allows either party in unsuccessful negotiations to apply to the Labour Board to direct the settlement of a first collective agreement by arbitration.

Industrial Actions  Work-to-rule  Boycott  Sit-Down Strike  Notice to potential job applicants  Legal/Illegal Strikes  Legal/Illegal Lockouts  Strike Breaking  Picketing (Primary/Allied/Secondary)  Injunctions

Conciliation & Mediation  Conciliation  A government-appointed third party attempts to bring together the parties to reach agreement  In most provinces, a strike is not permitted before conciliation efforts  Mediation  Disputing parties voluntarily choose to reconcile their differences through a third party

Common Contract Provisions  Union shop  Employers may hire anyone they want, but all workers must join the union within a specified period  Dues check-off  Employer required to deduct union dues  Seniority  Length of the worker’s employment  Discipline  “Just cause” is required to discipline or discharge

Administering the Agreement  Grievance  Complaint that some aspect of a collective agreement has been violated  Grievance procedures  Most collective agreements include formal multi-step procedures to resolve grievances  Arbitration  Used to resolve a grievance when an acceptable solution cannot be reached

Managing in a Union Environment Unions impact the HRM function:  HR department may expand to add labour relations specialists  Greater centralization of employee record- keeping and discipline to ensure uniformity  Management has less freedom to make unilateral changes

Labour-Management Cooperation  Organizational performance is enhanced when labour and management cooperate  Cooperative methods include:  Prior consultation  Sincere concern  Training programs  Joint study committees  Third parties