Employee and Labour Relations (10.4%) Flashcards
Labour Relations
relationship between empr, epees, and union representative
Employee Relations
relationship between empr and epee
Legislation
due to globalization and free trade, legislation abroad has improved to enhance the rights of workers
Federal Legislation –> Canada Labour Code Part 1: Industrial Relations
Provincial/Territorial Labour Relations Codes/Acts
Public Service Labour Relations Act
Federal Legislation - Canada Labour Code Part 1: industrial RElations
regulates org under federal jurisdictions (as defined in the Professional Practice module)
Provincial / Territorial Labour Relations Codes/Acts
regulate org w/in prov and territorial jurisdiction
Public Service Labour Relations Act
gives federal civil servants and individuals working in federal agencies bargaining rights
some provinces, e.g. BC, have special legislation for public servants
Characteristics of Canada Labour Relations Legislation
1) The Certification Process
2) Restriction on Management Action to Prevent Unionization
3) Requirement to Bargain in “Good Faith”
4) Extensive Restrictions on Strike Action
5) Compulsory Grievance Arbitration
6) Recognition of the Right to Union Security
The Certification Process
virtually all CAD collective-bargaining legislation provides a relatively simple procedure by which unions can acquire collective bargaining rights
Procedure allows union to apply to labour board and to become exclusive bargaining agent for all epees in the bargaining unit
This procedure is the principal method by which trade unions acquire bargaining rights; although they may also be voluntarily recognized by the empr
Restriction on Management Action to Prevent Unionization
legislative protection is provided to epee prohibiting certain actions on the part of management to frustrate or prevent unionization
necessary as traditionally mngmt doesn’t support unionization (perceived to erode mngmt freedom while resulting in greater administrative burden)
restricts mngmt from intimidating or coercing epees from joining a union
BC & Quebec –> prohibits the use of replacement workers during a legal work stoppage
Requirement to Bargain in “Good Faith”
as part of Canadian legislation the parties are required to bargain with eachother in a sincere and respectful manner and with the honest intention of reaching an agreement
refusing to meet, taking actions that frustrate the process or communicating directly with epees about issues that are at the bargaining table are actions considered to be not in good faith and therefore illegal
Extensive Restriction on Strike Action
CAD collective-bargaining legislation (in almost all jurisdictions) severely curtails the use of economic sanctions by either of the parties
strikes for the purpose of gaining recognition are expressly prohibited, as are strikes occurring during the life of a collective agreement and in certain identified essential services
even where the parties are bargaining for a collective agreement, the right to strike is postponed until the parties have exhausted certain dispute-settlement procedures, such as conciliation and meidation
Compulsory Grievance Arbitration
the complete restriction upon strikes and lockouts during the life of the collective agreement has created a requirement for a procedure in collective agreements for final and binding resolution of any unresolved disputes related to its interpretation and administration
mandatory arbitration of issues
Recognition of the Right to Union Security
unions are permitted by legislation to bargain for such arrangements as the closed shop, union shop, and the dues shop or Rand formula
some jurisdictions go even further by making the Rand formula mandatory, while others only go so far as to require the employer to collect dues on behalf of the union where authorized by the epee
this approach contrasts sharply with some American jurisdictions where “right to work” laws have restricted union-security arrangement
Closed Shop
the requirement that a person be a member of the union before being hired
Union Shop
the requirement that a person join the union upon being employed
Dues Shop or Rand Formula
requirement that a person at least pay union dues as a condition of employment
Administration of Labour Legislation in Canada
Administration is through labour relations boards
Boards are public agencies that have some independences from government
two other institutions, ad hoc arbitration boards and the courts also have roles to play in the administration of the legal structure (roles are less prominent than that of the labour relations boards)
depend on eligibility by individual (jobs) to be in the bargaining unit
Labour Relations Boards
each of the CAD jurisdictions has established its own structure to administer its collective-bargaining laws
usual structure is the labour-relations boards, although a variation of this pattern can be found in Quebec where the responsibility for administering its collective-bargaining statue is divided btwn public officials called investigative commissioners and a provincial labour court
Boards, as a rule, are tripartite in composition - being composed of
- an independent chairperson
- union representatives
- empr representatives
Chairperson and board members are appointed for either a fixed term or at the pleasure of the government
labour boards employ support staff of civil servants to carry out their administrative function. Their role is to resolve recognition disputes,determine whether a union should be granted certification rights and define the appropriateness of the bargaining unit
they also deal with unfair labour complaints, complaints as to whether a union is fulfilling its obligations to provide fair representation and jurisdictional disputes between unions
Courts
courts can play a role in labour relations law because of
- their general jurisdiction to administer civil and criminal law,
- their power to review the decisions of labour boards and arbitration boards, and
- their role as the ultimate interpreter of the CAD constitution
the most common use of the courts is during an illegal work stoppage where mngmt will seek a court injunction against the strike
Labour Relations Continuum
relationship btwn mngmt and organized labour exists on a continuum stretching from conflict at one end to collusion at the other with identifiable points between the two extremes: containment-aggression, accommodation, and cooperation
Where the relationship is on the continuum determines to a very large degree the way the parties interact with one another
conflict containment/aggression –> accommodation –> cooperation –> collusion
Yellow-dog contracts
anti-union tactics
- agreement between empr and epee in which epee agrees, as a condition of employment, not to be a member of a labour union
Blacklisting
list of individuals who are known to be union sympathizers
Anti-union tactics
Yellow-dog contracts and blacklisting
emprs would secure signed agreements with epee not to unionize and not hire individuals who were known to be union sympathizers
Before current legislation
no regulation prohibiting use of unfair labour practices on part of empr
no restrictions on terms and conditions emprs provided their epees
epees organized in order to change this situation and continue to belong and support their bargaining agents for the same reason today
Business unionism
reason for unionization
focus on increased economic benefits, improved treatment and job security
Frequent reason for belonging/joining
belong/join due to feeling of unbalanced power either because they feel insecure in their positions, unfairly treated, unheard, or unable to influence their working conditions
Reasons join a union
- Influence HR policies and practices affecting them and their co-workers
- Achieve better pay and benefits
- Achieve greater control over the jobs being performed
- Increase job security
- Improve working conditions
- Help achieve greater job satisfaction and meet their affiliation needs
- influence the rules and procedures regarding discipline, transfers, promotions, grievances, and layoffs
Nature of Unions
b/c democratic organization, can be highly political depending upon the support of their members in order to continue to exist
political element extends through all aspects of the labour-management relationship from initial organizing through collective bargaining to administering the collective agreement and the union’s “duty to fairly represent” all members of the bargaining unit
Certification and Unionization Terms
1) Certification
2) Automatic certification
3) decertification
4) Authorization card / membership card
5) Pre-hearing vote
6) representation vote
7) voluntary recognition
Certification
procedure whereby a union is awarded the right to represent a group of epees
Automatic certification
occurs when there is such a strong epee support that it negates the need for a certification vote prior to the labour relations board (LRB) granting certification
Decertification
occurs when the majority of epees make it known that they do not wish to be represented by a union, they wish to be represented by another union, or the union fails to successfully negotiate a first contract (in jurisdictions where contracts are not imposed by arbitration)
Authorization card / membership card
a card signed by epees indicating their willingness to be represented by a union
Pre-hearing vote
called by the LRB early in the certification campaign where there appears to be irregularities in the certification process (not applicable in BC)
Representation vote
secret ballot vote by members of the bargaining unit resulting in the acceptance or rejection of the union by epees
Voluntary Recognition
a procedure, recognized in legislation, where the empr accepts the union without going through a formal certification process
Union stakeholders
1) bargaining agent
2) business agent
3) chief steward
4) union steward
Bargaining agent
the union that has been certified by the labour relations board to represent the epees in the bargaining unit
Business Agent
a paid, full-time, elected or appointed union official involved in negotiating the collective agreement, helping to administer its terms, and handling grievances
Chief Steward
the senior union steward for an area
Union Steward
a union member and colleague elected by workers to act as their representative.
stewards receive, investigate, and attempt to resolve complaints and grievances, inform members of union policies and meetings, and recruit new members
may have multiple
Labour Relations Strategies
1) Union Acceptance Strategy
2) Union Avoidance Strategy
3) Union Suppression Approach
4) Union Substitution
5) Business Unionism
6) Grass Roots Unionism
7) Social / Reform Unionism
Union Acceptance Strategy
When the empr views the union and collective bargaining process as legitimate and appropriate for their organization
Union Avoidance Strategy
when the empr prefers to be non-union and has developed HR policies and programs that discourage epees from wanting to join a union
this is sometimes referred to as union substitution or proactive HRM
Union Suppression Approach
a union avoidance strategy that uses “hard-ball” tactics (e.g. frustrating the successful negotiation of a first contract leading to decertification, using replacement workers during strikes or lockouts when legal, contracting out, etc.)
Union Substitution
a term used to describe a proactive, positive strategy whereby the implementation of effective human resource management strategies serves to substitute the desire among epees for a union
provides everything desired w/o union; same/similar to union avoidance strategy
Business Unionism
a union philosophy whereby the union recognizes that it is a business and can only survive if it delivers needed services in a business-like manner to its members
the usual focus of a business union is on economic and security issues
Grass roots unionism
a socio-political movement that is driven from the bottom up and is characterized by locals having a high degree of autonomy
Social / Reform Unionism
union activity directed at influencing the social and economic policies of government
Labour Relations Organizations
1) Labour Union
2) Bargaining Unit
3) Local
4) Independent Local Unit
5) Industrial Union
6) Craft Union
7) District Labour Council
8) Employee Associations
9) Industry Bargaining Association
10) Provincial Federation of Labour
Labour Union
recognized association of epees who have joined together to deal with mgnmt
labour unions have - charters - constitutions - by-laws and are governed by legislation
Bargaining Unit
a group of epees recognized by the labour relations board as an appropriate “unit” for the purpose of certification and collective bargaining
Local
Smallest unit within a union representing a group of epees, usually in a particular geographic area or location
Independent Local Union
a union not affiliated with a larger labour org’n such as a national union (e.g. Canadian Autoworkers or the Canadian Union of Public Employees) or with a provincial federation of labour or the Canadian Labour Congress
Canadian Labour Congress
national trade union centre, central labour body in English Canada to which most Canadian labour unions are affiliated
Industrial Union
A union representing all epees in a particular organization or industry
Craft Union
a union limited to represent skilled epees practicing the same craft or trade (e.g. electricians, plumbers, etc) resulting in eachcraft having their own union, focused on representing their uniqueneeds
District Labour Council
a regional structure or association whereby unions that are part of the Canadian Labour Congress and the Provincial Federation of Labour can come together to work on local issues of common concern
Employee Associations
normally represent white collar or professional employees
they also include epee groups that are not certified as bargaining units under the labour code but carry out negotiations with emprs on behalf of epees (e.g. doctors)
Industry Bargaining Association
in certain circumstances, companies may decide to band together to bargain “collectively” with the union that is certified as the bargaining unit at each of their operations
Provincial Federation of Labour
a province-based structure that allows unions associated with the Canadian Labour Congress to come together around provincial issues
Unethical Practices
1) Blacklist
2) Unfair Labour Practices
3) Yellow dog contract
Blacklist
an empr’s list of ppl known to be union organizers or sympathizers that is circulated to ensure they are not hired
Unfair Labour Practice
an action by an empr or union that unfairly affects an epee in making a free choice to unionize
unfair labour practices include TIPs - threats, intimidation, promises (unrealistic), or spying when certification process is under way
TIPS
- Threats
- Intimidation
- Promises (unrealistic)
- Spying
once certification process is under way
Yellow Dog Contracts
a former practice regarding epees to sign agreements indicating that they were not members of the union, nor would they become members while employed
today this is illegal
Certification Process
1) Employees desire collective representation
2) Organizing campaign is launched
Employees Desire Collective Representation
union representatives (union organizers) meet with epees to assess desire
Organizing campaign is launched
1) initial organizing meeting is held
2) in-house organizing committee is established
3) information is gathered (e.g. list of epees, etc); the empr is under no obligation to provide information
4) epees are contacted; this activity is not allowed to be conducted during regular work shifts/hours
5) Authorization cards are signed indicating that the epee is willing to have the union act on his/her behalf
6) If minimum number of cards are signed, the union may apply to have a vote held (per ranges from 25% to 60% depending on jurisdiction), sometimes taking place after a “quiet period”
7) LRB reviews and determines the appropriateness of the bargaining unit by considering
a) wishes of empr and trade union
b) commonality of interest among epees
8) once bargaining unit has been determined, level of membership support is determined as indicated through signed authorization cards
9) Pre-hearing votes can be called by the LRB if there is a sense that unfair or irregular practices by either side have taken place. A pre-hearing votes is conducted prior to the determination of the appropriate bargaining unit. The ballot box is sealed until the appropriate bargaining unit is defined, and only ballots of eligible bargaining unit members are counted
10) automatic certification can occur in some jurisdictions if the union can demonstrate a high enough level of support (generally 50% to 55%) or if the LRB determines there has been an unfair labour practice on the part of the empr
11) representation vote is supervised by the LRB
12) depending on the jurisdiction, either 50% + 1 of the potential bargaining unit members or 50% +1 of those voting is required for the vote to be successful
13) Voluntary recognition can occur if the LRB considers the bargaining unit to be appropriate and that the majority of epees desire it
Collective Bargaining Terms
1) collective agreement
2) collective bargaining
3) bargaining zone
4) cooling off period
5) work stoppage
6) lockout
7) strike
8) wildcat strike
9) picketing
10) secondary picketing
11) replacement workers (scabs)
12) good faith bargaining
13) concessionary bargaining
14) distributive bargaining
15) integrative, mutual gains, or interest based bargaining
16) productivity bargaining
17) pattern bargaining
18) surface bargaining
19) whipsaw
20) mediation
21) conciliation
22) interest arbitration
23) final offer arbitration
24) ratification
25) strategic choice model
Collective Agreement
a signed agreement btwn an empr and a union outlining terms and conditions of work
(essentially the emp’t contract)
Collective Bargaining
the process used by the bargaining agent (union) to reach a collective agreement with an empr
under collective bargaining individual epees surrender their rights to negotiate individual conditions of employment with their empr
any and all changes to conditions of emp’t have to be negotiated/agreed to by the union/collective bargaining agent
Bargaining Zone
the area defined by the bargaining limits of each side
it is the zone within which both parties are willing to negotiate/concede
max of empr and min of bargaining unit
Cooling Off Period
a mandatory provision in a number of jurisdictions whereby the parties must wait a prescribed period of time before taking action in the event of negotiations breaking down
Work Stoppage
a neutral term used to refer to strikes and lockouts, which does not assign responsibility for the breakdown in labour-management relations
Lockout
occurs when empr temporarily refuses to provide work to bargaining unit epees
Strike
a temporary refusal to work following a successful strike vote
95% of labour negotiations are settled w/o a work stoppage
to be lawful, strikes must occur in accordance with the provisions of the jurisdiction and LR statutes
Wildcat strike
a spontaneous walkout not sanctioned by the unions
they may be legal or illegal depending on the timing
in certain instances, management will seek an injunction from the courts requiring the union and epees to end the strike
Picketing
sometimes referred to as “information picketing” conducted by striking epees and sympathizers to make their displeasure known
primary picketing is limited to the place of emp’t or to the place where the “struck” work is being performed
it is illegal to picket on private property without permission or to block business entrances and exits
Secondary picketing
picketing directed at other org’ns such as the suppliers or customers of the primary org’n undergoing the work stoppage
Replacement workers (scabs)
are hired by the empr to perform the duties of epees who are on strike
not allowed in BC - exception
Good Faith Bargaining
the union and empr make reasonable efforts to arrive at an agreement
it suggests an iterative process of proposals, negotiations, and willingness to compromise
refusing to bargain or delay the process can be seen as bad-faith bargaining
making unilateral changes to the conditions of emp’t during negotiations or by-passing the epees representatives is considered to be bad-faith bargaining
Concessionary Bargaining
a form of bargaining involving concessions being made by the union (rollbacks) or an agreement to freeze monetary rewards in return for job security
usually occurs during sever economic downturns
Distributive Bargaining
a win-lose negotiation strategy
it is most appropriate when the issues being negotiated are measured in finite terms (e.g. monetary items such as wages and benefits)
this is the most common form of bargaining used today
Integrative, Mutual Gains, or Interest-based Bargaining
win-win outcomes are the desired result
this approach requires a genuine interest in both sides to jointly explore issues and develop mutually beneficial solutions
involves joint fact finding and information collection, the use of brainstorming for possible solutions, and a commitment to open communication and mutual respect between parties
Productivity bargaining
a form of integrative bargaining geared to improve productivity resulting in new work practices
Pattern Bargaining
where the union uses the settlement made with another empr as a model to follow
follow what the industry is doing
Surface Bargaining
going through the motions without real intent to reach an agreement
can be unfair labour practices
Whipsaw
union strategy for using the settlements of others to gain ground (e.g. threaten to strike unless the same deal as provided by a competitor is provided)
use other settlement to better self (reciprocal –> back and forth)
Mediation
way of resolving disputes in which an independent third party is engaged to help the parties come to a final decision based on the facts given through the discussion
mediation is not legally binding so it does not have to be following
non-binding
Conciliation
neither arbitration or mediation
involves the parties choosing an independent third party who hears both sides, either privately or together, and the prepares a compromise which the conciliator believes is a fair disposition of the matter
the conciliator’s report or conclusions are then put to both side, who may agree or disagree with it
it is not binding not is it enforceable unless the parties adopt it
non binding, parties choose person
conciliation may not follow structured process
Interest arbitration
the use of a third party arbitrator to decide upon the terms of a collective agreement
arbitrator determine interests to form collective agreement
Rights arbitration
occurs during the life of a collective agreement as it pertains to disagreements about the content of the contract, not the negotiation of the contract
Final offer arbitration
restricts the arbitrator to selecting one of the final offers made by the parties unlike the other forms of arbitration where the arbitrator must craft the settlement
this encourages the parties to be reasonable, since the arbitrator is forced to choose one or the other’s last offer
typically, it results in one entire offer package being accepted
however in some instances, can result in the arbitrator choosing issue by issue as presented by the parties
happens during negotiation of collective agreements
Ratification
the formal approval required from the bargaining unit members for a proposed settlement
union takes agreement back to members and ask if agree
not always required by law but is a requirement of most union constitutions
approval is achieved when the majority of epees voting are in favour of accepting the negotiated agreement
Strategic choice model
taking a “big picture” perspective and approaching negotiation with an understanding about how the labour relations environment will support or integrate with the performance of the org and the achievement of its strategic goals
Collective Agreement Standard Terms
- Union Recognition
- Union Security
- Closed Shop
- Union Shop
- Modified Union Shop
- Maintenance of Membership
- Rand Formula
- Open Shop
- Check off of dues
- Automatic or compulsory check off
- voluntary check off
- contract expiration date
- management rights
- acquired rights
- no strike or lockout provision
- seniority and job security
- hours of work and overtime
- compensation and benefits
- vacation, holiday and paid/unpaid leave benefits
- occupational health and safety
- grievance and arbitration procedure
Union recognition
recognizing the union as the exclusive bargaining agent for the employees in the bargaining unit
Union security
dealing with membership issues and the collection of union dues and specifying one of the following provisions
- closed shop
- union shop
- modified union shop
- maintenance of membership
- rand formula
- open shop
NOTE: HuRi always allows opt out for rligious reasons; pay equivalent dues –> go to charity; can cross strike but cannot vote
Closed shop
indicating that only union members in good standing may be hired.
the most restrictive form of union security clause (have to be a member before hired)
hiring call (?)
Union shop
another form of union security indicating that membership and that payment of dues are mandatory conditions of employment
once employed, you become a member
union obligated to rep epee
Modified union shop
indicating that employees do not need to join the union if they were employed at the time of certification, although they must pay dues
can elect not to join if hired before certification; still have to pay dues
Maintenance of membership
indicating that once the epee is a member of the union, they must remain a member of the union through to the end of the contract
once member, always member until agreement expires
Rand formula
a form of union security clause indicating that union membership is not mandatory but that paying union dues is mandatory
because unions are reuired to represent all epees fairly and eually (even those who have chosen not to be members) the Rand Formula ensures that the union benefits from everyone’s financial support in return for the gains received as a result of the union’s efforts.
this formula is also known as “dues shop” and “automatic check off”
become member when hired unless elect not to but still pay dues
Open shop
the weakest form of union security clause, in which membership is voluntary
Despite union security clause
unions have the duty to fairly represent all bargaining unit members even if they are not members of the union
individuals always have the right to refrain from being a member on the grounds of religious objections (when this occurs, they pay the equivalent amount of dues to a charity)
Check off of duties
refers to the collection of union membership dues by the employer
automatic or compulsory check off
OR
voluntary check off
Automatic or compulsory check off
stipulates that the employer must deduct union due from epee
Voluntary check off
allows the employer to deduct union dues only from those epees who authorize such deductions
Contract expiration date
will deal with not only the date of expiry but notice periods for opening negotiations and provisions for the agreement to remain in effect beyond termination if negotiations are taking place
Management rights
defined in terms of RESIDUAL RIGHTS
whereby all rights held by mngmt prior to existence of the collective ag’t continue in effect unless abrogated or modified by a provision in the agreement or are specifically outlined in the wording in the management rights clause in the agreement
Acquired Rights
refers to the rights that have been acquired by the union that may not be covered in the collective ag’t but can be demonstrated and have been acted upon by the union and employees
e.g., if granting vacation with just 2 days’ notice has been a common practice, then the union has acquired that right and the employer could not unilaterally change it without notice or negotiation
also referred to as DEFINED RIGHTS
No Strike or Lockout Provision
it is a requirement in virtually all jurisdictions in Canada that a collective ag’t contain a provision prohibiting strikes or lockouts during the term of the agreement
Seniority and Job Security
will cover items related to transfers, promotions, lay-off and recall, job posting and severance benefits
seniority is viewed as a important issue by unions
Hours of work and overtime
will cover shift scheduling length of shifts, breaks and methods for awarding overtime work
Compensation and benefits
will be coverd by a number of articles and clauses in the agreement and will deal with everything from insurance and pensions to actual pay rates, job evaluation methods, and cost-of living based changes in wages
Vacation, Holiday and Paid/Unpaid leave benefits
in addition to wage compensation and benefits the agreement will include all of the negotiated items dealing with vacation entitlement, paid holidays, and the various kinds of paid and unpaid leave employees are eligible for - such as parental and maternity, educational, political, jury duty, and bereavement leave
Occupational health and safety
depending upon the nature of the industry the agreement will contain more or less language related to health and safety and may include items such as:
- the OH&S committee
- right to refuse unsafe work
- clothing
- limits to hours of work in safety sensitive areas
- drug testing
- wellness initiatives
Grievance and arbitration procedure
is required by law and outlines the steps, time limits and mechanism for arbitrator selection
Clauses in Collective Agreement
labour and management can writer into collective ag’t anything that they want to, as long as it is mutually agreed and does not contravene the law
