avoiding the pits

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AVOIDING THE PITS

R. Ross Dunsmore

Dunsmore Law

June 27, 2012rrd@dunsmorelaw.com

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Agenda

Grievance Arbitration Termination Issues Negotiations The Freeze

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Part I – Grievance and Arbitration

Who are you? What mandate do you have? Is there a role for Union?

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You

Honor Honesty Principle

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Mandate

The right thing The management way What you are told

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Union Role

Part of solution? Involvement? Recognize their needs No co-operation?

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Basics - Investigation

Why investigate? Fairness to employees Gather facts, photos Preserve evidence Tie down stories

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Essential Investigation Principles

Sooner the better Listen Keep an open mind “Who”, “what”, “where”, “why” Take notes – lots and lots of notes!

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Note Taking “No, No’s”

Do not editorialize No doodling No multiple events

Remember: what you write down might be exhibits at arbitration!!!

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Preserving the Evidence

Why? Keep all physical evidence Retain all notes Ask witnesses to sign notes or provide written

statements Video tape statements?

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Basic Discipline Involves

Investigation

Evidence

Progressive discipline

Arbitral intervention

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Discipline Is

Identify misconduct Explain correct conduct Set penalty Explain implications for future

misconduct

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Discipline Purpose

To correct unacceptable behaviour To rehabilitate To build a record

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Discipline Implications

Impact on other employees? Implication of failure to discipline Unsupported supervisor Unregulated employee

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Discipline

Termination is secondary

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Authority to Discipline

Management rights Specific penalties

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Restrictions on Discipline

Collective agreement Policies, rules Past practice

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Mitigating Factors

Seriousness of the misconduct Provocation / Premeditation / Momentary Employee state of mind Seniority Consistency Condonation Apology

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Progressive Discipline

Goal: to correct behaviour through escalating disciplinary responses

Usual steps: Oral warning Written warning Suspensions Discharge

No time off?

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Culminating Incident

Event justifies discipline Degree of discipline based on record Bad record = severe discipline

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Zero Tolerance Policies

Discharge in all cases? Discharge on first offence? Effect of “zero tolerance” policies at

arbitration Mitigating factors

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Collective Agreement Basics

Limits employer rights Gives Union and Employee rights Defines procedures Is enforceable by arbitration

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Grievance Basics

Problem solving Doing right thing Or supporting management

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Process Basics

Individual versus Union? Time limits Consistency

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Mediation – Arbitration

Clear the docket Delay, delay, delay Come to dance Take you ball home

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Speedy Arbitration

Shared interest Right arbitrator Exchange of documents Will says in advance Submissions in advance

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Different Models

Important issues – normal Test case precedent – speedy Minor dispute – 5 minutes!

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Arbitration Basics

All disputes Interpretation Application Violation

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Arbitral Authority Basics

Apply ESA Apply Human Rights Code Cease and desist Damages – specific, general

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Arbitrator or Other Tribunal

Who do you want? Who can you pick? Who knows your business? Who cares about you?

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Remedies

One off or ongoing Context or short term Shared responsibility Any remedy?

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Part II – Termination Issues

Last chance agreements Med-arb Options Buy outs Violence in workplace

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Incompetence

Start sooner Non - union- business decision Union - process - educate, assess, act Use buy out Value of reinstatement rights Demotion

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Common Law Severance

Ignoring reinstatement rights Computer imposed contracts Changing bonus contracts Balancing the power Being older – so?

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Frustration

Unforeseen event Innocent, insured absenteeism Loss of own occupation coverage Loss of seniority Take bull by horns

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Part III – Bargaining

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Bargaining Philosophy

Why are you there? What are you supposed to do? What is your mandate? To whom do you report?

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Bargaining Philosophy

Not they take, we give Not, how little do I give away What’s in it for Employer?

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Bargaining Philosophy

Decide: work with Union or battle? Unionized employees are still your

employees

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Preparation

“The most important thing is preparation”

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Preparation

What difference does a Union make? Tough-minded Political Aggressive Dumb Expensive

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Preparation

Local vs. National Who is in charge? How to communicate?

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Test for Issues

Demonstrated Need Sensible solution – practicability, cost,

efficiency What are comparable doing? Are comparables comparable?

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Industry Comparables

The bigs The similar sized The precedent setters Inside-outside Discover details

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Other Relevant Information

Government Municipalities Local industry CPI Electricity costs

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Importance of Language

Quality of drafting Always draft Duty to draft well Rules – every word means something. Use

same word to mean same thing His/her, their

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Saying NO

NO No with explanation No by ignoring No by asking questions No by preparing for strike

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Time of Bargaining

Midnight? Business-like Deadlines

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Packaging

Tit for tat One off’s Groups Language only Money only The deal

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At the Table - Strategy

The Funnel When to hold When to fold Arbitration vs. strike

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Cutting the Deal

NOW LATER

Devil in the details Always draft Never quit Do the deal

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Bad Centralized Bargaining

Lowest common denominator Loss of control No local character Monetary consequences

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Good Centralized Bargaining

Uniform language Control No screw ups Total compensation

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Employer Responsibility

Information sharing Knowing the other side Recognize implications Being accountable

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Salary Compression

Don’t No linkage Build in pay equity Pay properly

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Toronto Brinkmanship

A determined plan Great influencing Stronger will Take back excess Greed and politics

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Influences

Early communication Knowing your capacity Strike planning Showing your hand Being frank and upfront

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Bill 55

You get what you deserve Faster arbitration at OLRB? Freeze management? Politics

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Ability to Pay

Who is the enemy? Explaining comparables Evidence of inability Evidence of consequences Irrefutable claims? Proof not posture

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Using Counsel better

Pre plan Prepare well Share early Justify need for change Eliminate options

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Bargaining With Fire

Cut to the chase Demand things back Prove your case Go to conciliation Go to arbitration Don’t delay

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The Freeze

Get out from under Freeze changes collective agreement Rule making stops Status quo Speed kills

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AVOIDING THE PITS

R. Ross Dunsmore

Dunsmore Law

June 27, 2012rrd@dunsmorelaw.com