avoiding the pits
DESCRIPTION
Avoiding the Pits. R. Ross Dunsmore Dunsmore Law June 27, 2012 [email protected]. Agenda. Grievance Arbitration Termination Issues Negotiations The Freeze. Part I – Grievance and Arbitration. Who are you? What mandate do you have? Is there a role for Union?. You. Honor - PowerPoint PPT PresentationTRANSCRIPT
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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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