Final exam Flashcards
What are the 3 legal requirement for collective agreement
most comply with employment related legislation in the employer’s jurisdiction
- Cannot agree to any terms and conditions that discriminate against protected grounds
- Negotiated terms or clauses in a collective agreement referred to as articles
How does the collective agreement impact all the parties
management: limits certain things less flexibility
union: can’t go back in forth once its signed
government: influences prices to consumers
What are the 5 mandatory terms that are required by law to be in the collective agreement
- union recognition: management recognize union as the legal representative
- no strikes or lockouts when agreement is in place
- arbitration of disputes (what is the grievance and arbitration process)
- duration of term (minimum 1 year)
- union dues check off: clearly mentioned that management will take dues from paycheck
what is included in union recognition
Employer recognizes the union as the bargaining agent for employees in the bargaining unit
- Usually specifies the location and jobs included, whether part-time included, or those not included
What is a grievance
allegation that the collective agreement or an employment statute has been violated, as well as what remedy is sought
What are the 3 types of grievances and an example of each
individual grievance: one employee alleges there has been a violation of the collective agreement or a statute. example: employee isn’t paid over time
Group grievance: group of employees allege violation of the collective agreement or a statute. example: manager doesn’t inform employees of vacation policy
policy grievance: either the union or the employer alleges that the other party violated the collective agreement. Example: management distributes policy about cell phone use at work
What are mandatory and directory time limits and which do management/union prefer?
mandatory means you must file a grievance in a specified time period and management wants this because after the time is up the grievance is gone
directory time limits serve as a guide for when someone should file grievance by, but they’re not hard limits. union wants this because it gives them more flexibility.
What are rights arbitration and interest arbitration
right arbitration is when there is a grievance filed, the third party looks at the evidence then makes a binding decision
interest arbitration is during the negotiation process if the 2 parties cannot agree on something the arbitrator makes a decision
define grievance procedure and how many steps are there usually in it
is a series of steps in which union and employer representatives at progressively higher levels meet to try to resolve the dispute. usually 3 or 4 steps in it
define arbitration
is a dispute resolution method in which management and union representatives present evidence and arguments to a third party who then makes a binding decision
what are the 4 types of arbitrators
a) single arbitrator
b) arbitration board that includes employer nominee, union nominee and neutral chairsperson c) single arbitrator – names of arbitrators listed in collective agreement d) single arbitrator (permanent umpire): one person appointed to hear all grievances for a specified period of time
what is expedited arbitration
is an alternative arbitration process that provides for a faster result. this means that they might have shorter time limits for the hearing and for when a decision can be made
what is the minimum length for the duration of an agreement
1 year
What does management/union prefer in term lengths
management prefers long contract length because they can plan their business and financials with more certainty if its longer term
union wants shorter terms because things could change in the environment that they’d want to negotiate better terms for their members
Why does the union want there to be a clause about management deducting dues from employees
because management can easily do this if they’re already deducting money from employee’s pay like CPP and EI and tac deductions, it’s a lot more difficult and bigger admin cost for union if they have to deal with getting the money themselves
What are 6 examples of voluntary terms to the collective agreement
management rights
union security
seniority
hours of work
overtime
discipline
wages
what are management rights
management retains the authority to manage the organization except as otherwise provided in the collective agreement
define reserved or residual rights theory
any rights not specifically laid out in the collective agreement are to be considered management rights
What will management vs union want written about management rights
- Management will want it very clear and specific clearly written about what their rights
-union will want it more vague and ambiguous so they can argue against it
what will management want for probationary employees
employer may try to have language that gives it sole discretion over probationary employees
define bargaining unit work
collective agreement may place restriction on having bargaining unit work done by a non-bargaining unit employee. If you do certain amount of unionized work, you will be converted to the union.
What is union security
measures taken by the union in collective bargaining to help “secure” the ongoing presence and influence of the bargaining agent in a unionized work setting.
mainly deduction of union dues and also if you’re required to become union members
define a rand formula/agency shop
a collective agreement term requiring the deduction of union dues from all employees in the bargaining unit, even for those employees who decide not to formally join the union.
define the 6 types of union security
agency shop
close shop
union shop
modified union shop
maintenance of membership
open shop
define close shop
An individual must be a union member before being hired; new employees are hired through the union.
define union shop
New employees do not have to be union members to be hired but must become union members within a specified number of days.
define maintenance of membership
Employees are not required to join the union as a condition of employment, but all workers who voluntarily join must maintain their membership for the duration of the agreement as a condition of employment.
define open shop
Union membership is not required to obtain a job or to continue employment.
define seniority and describe some impacts it could have for an employee
the amount of time an employee has been with the employer
vacation
layoff, bumping
job vacancies
define bargaining structure
refers to who bargains with who, usually management vs union
Does one union always bargain with one management
usually but not always. Sometimes it’s one management with multiple unions, or one union that applies to multiple employers in the area
What is the difference between centralized and decentralized bargaining
Centralized bargaining: negotiations covering more than one location, union or employer. Example colleges, nurses
Decentralized: negotiations between one employer, one location, one union. For example, one private college for employees of that private college.
what is industry bargaining
a form of centralized bargaining – one set of negotiations for all employees in an industry
In canada, is bargaining typically centralized or decentralized? what are 4 factors that affect the bargaining structure?
- In Canada, structure is mainly decentralized due to:
- labour relations provincially regulated for most places
- labour boards have frequently certified smaller, separate bargaining units
- economic factors
- bargaining structure varies by province and industry
How does the bargaining structure impact collective bargaining (7 ways)
- the way negotiations take place
- bargaining power (centralized has more power)
- the likelihood of strikes or lockouts (centralized more likely to strike because they have way more people the agreement applies to and therefore more priorities to satisfy)
- cost of negotiation (centralized cost less bc one agreement applies to multiple locations)
- union management relationship (if they have good relationship easier to reach agreement)
- the bargaining priorities when different groups of employees are involved
- the use of tactics like whipsawing and pattern bargaining (centralized can get rid of pattern bargaining)
what are the 4 sub-processes of negotiations
- Distributive (or positional) bargaining: determining how limited resources will be divided. Creates a conflict dynamic. 90% cases this negotiation process. One party will win, one will lose.
- Integrative bargaining: parties’ objectives are not in conflict, and both can gain. Focus is on problem solving and the interests of the parties. Not common. Win-win situation.
- Attitudinal structuring: relationship between the parties and what they do to change it. Management-union relationship always conflict. Getting out of the conflicting attitude of the process, purposely making concessions to get out the conflict relationship.
- Intraorganizational bargaining: activities within each side to build consensus. Bargaining within the group. Asking what the members of management and members of union want from their representative.
what are the 5 types of union-management relationship
- Conflict: low trust, adversarial bargaining
- Containment-aggression: suspicion, mutual antagonism. Parties always try to contain.
- Accommodation: some respect and trust between parties
- Cooperative: mutual trust, willing to work together
- Collusion: coalition between union and employer. Making some unethical activities. For example, management giving special favor to union leaders so they don’t go in favor to the employees.
what are 4 factors that can determine the union-management relationship
- External factors, including economic, legal, technological
- Personality of leaders
- Beliefs and values of leaders
Experience with collective bargaining
Explain the steps in the negotiation process
notice to bargain: stat freeze begins, union or management sends this in and union submits charter of demands
establishments of bargaining teams: who will make up the management team and union team
preparation of demands to back up why they are asking for/offering the things they are
then they meet to to negotiate. If they can’t reach agreement they’ll go to conciliation or mediation process. If they still can’t reach agreement they will either go through arbitration process or strike/lockout.
what are the 2 outcomes of strike/lockout
agreement or impasse
Factor affecting union demand
experience with the collective agreement
any grievances that have come up from bargaining unit members
any arbitration decisions
input from union members and national/international union
economic forecasts
agreements from other employers in the industry
Factors affecting management demand
. Experience with the collective agreement
2. Grievances and arbitration decisions
3. Feedback from managers
4. Strategic business plans
5. Economic forecasts
6. agreements from other employers in the industry
what are the 3 stages to negotiations in the meeting step
stage 1: establishing the negotiation range: each side presents concerns, positions, explanations.
Stage 2: search phase: longest phase, where parties use various tactics in moving towards agreement. Phase covers:
* non-monetary issues (usually considered first) vacation, disability, no direct financial involvement * monetary issues direct financial involvement
Stage 3: crisis phase: strike or lockout is imminent if no concessions made, and no agreement reached. Parties try to reconsider their offer. Really depends on if either side can afford it
What does duty to bargain in good faith mean
Both union and employer must make a “reasonable effort to enter into a collective agreement
does good faith bargaining include hard bargaining and surface bargaining
can include hard bargaining but not surface bargaining
define hard bargaining
when you bargain in strong way you don’t want to compromise anything, not unfair because you’re trying to protect the financial benefit of the organization
define surface bargaining
you are showing something for an agreement but you don’t have the intention of doing it
What are 6 examples of bargaining in bad faith
- Refusal to meet
- Refusal to recognize the union
Not giving the negotiating team authority to made decisions
surface bargaining
concealing important info
refusal to justify bargaining position, won’t say why just say no
what happens when one party engages in bad faith bargaining and what are some remedies the labour board might use
other party can file complaint to the labour board who can settle the matter or investigate.
remedies:
* cease and desist
* order to resume bargaining
* in exceptional cases, damages, compensation for expenses awarded
define first contract arbitration and why is it important
If you cannot reach an agreement for first contract, then an arbitrator will decide terms and conditions
it is important because then management cannot ignore the union, if they ignore a third party will just come and decide for you
define whipsawing
involves union establishing an agreement with one employer and then using the agreement to pressure others
define initial, target and resistance point
1) initial position: first offer or demand
2) target point: what it hopes to achieve, what are you comfortable with 3) resistance point: its bottom line, under no circumstances will you accept less than thi
what is the contract or settlement zone and wha happens when there isn’t one
where there is an overlap in the resistance points, when there isn’t one strike or lockout is likely
What are some things that are part of the distributive bargaining strategy
not letting the other party know your resistance points
sometimes you might need to alter your resistance point if the other party lets you know something you weren’t aware of
the size and pattern of concessions matters
might use hardball tactics like highball/lowball or good cop bad cop
What are 4 factors that affect the employer’s bargaining power
inventory levels (the more they have the better position they’ll be in to strike)
time of negotiations
public opinon
ability to continue operations
What are 4 factors that affect the union’s bargaining power
size of strike fund
timing of strike
public opinion
effectiveness of strike
What are the outcomes of bargaining
- interest arbitration: Parties may voluntarily seek help from government-appointed conciliator officer, mediator, or arbitrator
- memorandum of settlement and ratification vote: if they do come to an agreement the agreement is drafted and brought back to union members to vote on
- if deal rejected: back to bargaining, seek mediation or conciliation before strike/lockout
What are some criticisms for traditional distributive bargaining?
time consuming
costly
leaves a winner and a loser
what are the 5 principles to interest based/mutual gain bargaining
- Separate the people from the problem
- Focus on interests, not positions
interests can include: needs, desires, concerns, fears
- Invent options for mutual gain
Insist on using objective criteria
What is a strike
when employees temporarily refuse to work to limit output of the organization
define work to rule
- Means that you’ll do your job but only what is assigned in the collective agreement, nothing extra
define rotating strike
when employees at different locations alternately stop working.
define wildcat strike
illegal strike, not authorized by the union
define lockout
employer refuses to allow employees to work to force union agreement to contract terms
define hot cargo clause
allows employees to refuse to work with goods associated with an employer engaged in a labour dispute
How is an illegal strike or lockout remedied and when would the union be liable
through grievance arbitration process
only liable if they support it or fail to end it
What is the significance of strikes?
inconvenience to public
economic impact on employer
union members won’t get any salary
potential violence
what are the 8 factors affecting strikes
- differences in information between union and employer (large differences higher chance in strike)
- economic factors (economic conditions good, union more likely to strike)
- bargaining unit and community characteristics (female employees less likely to strike)
- conflict within employer or union group
- relationship between union and employer
- negotiator skills and experience (chance of strike higher when less experience)
- bargaining history (if there was a strike previously and if it was successful or not)
- legal environment (if they cannot hire replacement workers in that province chance of strike higher)
What are the 5 conditions for parties to call strike or lockout
- No collective agreement in effect
- Parties have bargained in good faith (one did surface bargaining, no intention of coming to agreement)
- Conciliation or mediation process completed where required (some provinces before declaring strike they must go through conciliation or mediation process)
- Strike vote held
Notice of strike or lockout provided where required by legislation
What activities go on during a strike from management and union pov?
The employer can try to continue their operations if they’re automated or are in jurisdiction to hire replacement workers. The employer can also apply for injunction to limit picketing
workers set up a picket line at the employers place and receive strike pay if they picket. their objective is gain public support. No limit for how long they can strike for unless its public sector and government applies back to work legislation
what are the 2 ways a strike is ended
the reach an agreement for collective agreement
the union calls of the strike
define conciliation and the cooling off period
board to help parties try to reach agreement and the cooling off period is typically 1-2 weeks time before legally calling strike to think about offer of demand and whether they can make more concessions
what are the 2 types of mediation
a) government appointed mediator in some jurisdictions in addition to or instead of conciliation
private mediator, where parties voluntarily bring in a mediator
define fact finder
fact-finder investigates issues on why the cannot reach agreement and reports to the government.
define interest arbitration
involves a third-party process of hearing the parties and imposing the final terms of a collective agreement.
what is the chilling effect
refers to parties’ unwillingness to make concessions during negotiation.
define narcotic effect
refers to the parties losing the capability to negotiate their own agreement
what are the 5 types of interest arbitration
conventional
final offer selection
first contract arbitration
second or subsequent contract arbitration
mediation-arbitration
what are the 2 types of final offer selection
total package where union submits their final demand and management does too and arbitrator chooses one 100%
item by item final offer selection is where out of all the articles, it won’t be all union side or all management side, it’ll be a bit of both depending on issue.
What is the significance of total package final offer selection?
With total package final offer selection, there is a 100% winner and loser. That creates conflict in administering the collective agreement and during the renewal process
define mediation-arbitration
the third party first acts as a mediator then a arbitrator if they can’t reach a settlement
define back to work legislation
government passes special statute to end a strike or lockout and the contract issues are referred to arbitration
what are 6 ways resolve contract disputes
- conciliation
- mediation
- interest arbitration
- fact finding
- final offer vote
- back to work legislation
what are the functions of the grievance and arbitration process
-Resolve disputes over language and interpretation of the clause
- Ensure compliance with the collective agreement
- Provides mechanism for additional bargaining during the terms of the collective agreement.
what are the benefits to management of the grievance and arbitration process
- gives employees a voice
-improves quality of decision making
-allows management to learn of problems and take corrective action
what are the benefits to unions of the grievance and arbitration process
- as a pressure tactic prior to negotiations
- to oppose or possibly overturn management directives
- can increase union solidarity
what are the benefits to unionized employees of the grievance and arbitration process
- can have workplace issues resolved by external party therefore chances of getting fair treatment or judgement
- increases job security
What are the 6 requirements for rules for established by management
- It must not be inconsistent with the collective agreement
- It must not be unreasonable
- It must be clear and unequivocal
- It must be brought to the attention of the employee affected before the company can act on it
- The employee must have been notified a breach of the rule could result in discharge if it is used as a foundation for discharge
6.The rule should have been consistently enforced from the time it was introduced
define grievance rate
number of grievances filed divided by the number of employees in the bargaining unit
define ownership of the grievance
who has the power to decide if a grievance is filed, settled, withdrawn, or referred to arbitration? In most cases, it is the union who decides. In rare exceptions, depending on the union’s constitution, (like OPSEU’s), it is the individual who decides
define privileged communication
communication between union and management that can’t be used or referred to later at an arbitration hearing
define without prejudice
label on documents so that the parties can’t refer to it at a subsequent arbitration hearing
define waiver
if one party doesn’t object to a procedural error when it occurs, it can’t be brought up later
define memorandum settlement
written document of what the parties have agreed to that resolves a grievance
define without precedent
when a settlement is reached in a way that it can’t be used or referred to in subsequent cases
What is the general process at an arbitration hearing
start with opening statements from both sides
if they agree on the facts they present an agreed statement of facts
parties present evidence
Who does the burden of proof rest on when filing a grievance?
the party who is filing a grievance
What is the exception to the party filing a grievance bearing the burden of proof
when its a discipline and discharge case the employer bears the burden of proof
what is an argument in the alternative
refers to a party making an argument it wishes the arbitrator to accept if its primary argument is not accepted.
In arbitration are previous decision made binding?
no, they might be persuasive but they’re not binding
T or F, the arbitrator can only dispute and arbitrate on things within the collective agreement
true
what are some examples of arbitration outcomes
reduction in discipline imposed by the employer
reinstate employee
reinstate sick leave credits
What are steps in progressive discipline
verbal warning
written warning
suspension
dismissal
culpable absenteeism vs innocent absenteeism
- Culpable absenteeism: involves absenteeism where there is employee fault, or blameworthy conduct. May be subject to discipline.
- Innocent absenteeism: absenteeism in which employee has no control over the absence. Accommodation required to point of undue hardship. Not a disciplinary matter, but employer may terminate under certain circumstances
Name 5 factors arbitrator consider when reviewing discipline imposed by the employer
- The seriousness of the misconduct
- The length of service of the grievor
- The previous record of the grievor
- The uniformity of enforcement of rules
- Whether rules were brought to the attention of employees
In terms of putting specific penalties for misconduct in the collective agreement what does union/management prefer?
management prefer it to be specific, union prefers there to not be specific penalties because there’s a better chance the arbitrator will go easier on the employee if there’s no specific penalty in the agreement
What are some examples of things that might be brought up in a rights arbitration process
seniority
job posting
absenteeism
How does human rights apply to collective agreement
union and employers can’t discriminate on prohibited ground unless its a BFOR and have a duty to accommodate
what does the duty of fair representation mean
- Union has a duty to fairly represent employees in the bargaining unit, whether or not they are members: can’t act in a way that is arbitrary, discriminatory, or in bad faith
what are some distinctive features of public sector labour relations
government is both the employer and the regulator
public opinion and political factors dominates, profit not primary goals
a strike won’t cause economic loss in the public sector like it does in the private sector, so it usually can go on longer
how did public sector unionization change union demographics
increased representation of women, white-collar workers
How do legislation restriction differ in terms of what can be bargained for in public vs private sector
Private sector bargaining scope is wide, bargain lots of factors, public sector scope is narrow, can’t bargain that many things like pension
what are some different dispute resolutions in the public sector in terms of strikes
unrestricted strike
no strike only interest arbitration
designated /control strike
back to work legislation
what are 3 ways to reduce public sector labour costs
collective bargaining, starting at lower salary offer
problem solving approach with union
passing legislation to limit compensation increases
what are the 8 objectives of the government in labour relations
- regulate the labour relations processes
- regulate labour relations outcomes
- protect public interest
- regulate economy
- assistance to industry
- regulate market practices
- employ public sector workers
- stay in office get back in in the next election
3 reasons why employer might not be able to implement measure relying on management rights
Contradicts something in collective agreement
Violates legislation
Estoppel which means if they make promise to do something different than collective agreement they actually have to do that and not just say it’s not in collective agreement
