Avoiding the Pits

1
Avoiding the Pits

• R. Ross Dunsmore
• Dunsmore Law
• June 27, 2012
• rrd_at_dunsmorelaw.com

2
Agenda

• Grievance Arbitration
• Termination Issues
• Negotiations
• The Freeze

3
Part I Grievance and Arbitration

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

4
You

• Honor
• Honesty
• Principle

5
Mandate

• The right thing
• The management way
• What you are told

6
Union Role

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

7
Basics - Investigation

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

8
Essential Investigation Principles

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

9
Note Taking No, Nos

• Do not editorialize
• No doodling
• No multiple events
• Remember what you write down might be exhibits
  at arbitration!!!

10
Preserving the Evidence

• Why?
• Keep all physical evidence
• Retain all notes
• Ask witnesses to sign notes or provide written
  statements
• Video tape statements?

11
Basic Discipline Involves

• Investigation
• Evidence
• Progressive discipline
• Arbitral intervention

12
Discipline Is

• Identify misconduct
• Explain correct conduct
• Set penalty
• Explain implications for future misconduct

13
Discipline Purpose

• To correct unacceptable behaviour
• To rehabilitate
• To build a record

14
Discipline Implications

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

15
Discipline

• Termination is secondary

16
Authority to Discipline

• Management rights
• Specific penalties

17
Restrictions on Discipline

• Collective agreement
• Policies, rules
• Past practice

18
Mitigating Factors

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

19
Progressive Discipline

• Goal to correct behaviour through escalating
  disciplinary responses
• Usual steps
• Oral warning
• Written warning
• Suspensions
• Discharge
• No time off?

20
Culminating Incident

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

21
Zero Tolerance Policies

• Discharge in all cases?
• Discharge on first offence?
• Effect of zero tolerance policies at
  arbitration
• Mitigating factors

22
Collective Agreement Basics

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

23
Grievance Basics

• Problem solving
• Doing right thing
• Or supporting management

24
Process Basics

• Individual versus Union?
• Time limits
• Consistency

25
Mediation Arbitration

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

26
Speedy Arbitration

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

27
Different Models

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

28
Arbitration Basics

• All disputes
• Interpretation
• Application
• Violation

29
Arbitral Authority Basics

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

30
Arbitrator or Other Tribunal

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

31
Remedies

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

32
Part II Termination Issues

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

33
Incompetence

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

34
Common Law Severance

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

35
Frustration

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

36
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?

38
Bargaining Philosophy

• Not they take, we give
• Not, how little do I give away
• Whats in it for Employer?

39
Bargaining Philosophy

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

40
Preparation

• The most important thing is preparation

41
Preparation

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

42
Preparation

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

43
Test for Issues

• Demonstrated Need
• Sensible solution practicability, cost,
  efficiency
• What are comparable doing?
• Are comparables comparable?

44
Industry Comparables

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

45
Other Relevant Information

• Government
• Municipalities
• Local industry
• CPI
• Electricity costs

46
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

47
Saying NO

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

48
Time of Bargaining

• Midnight?
• Business-like
• Deadlines

49
Packaging

• Tit for tat
• One offs
• Groups
• Language only
• Money only
• The deal

50
At the Table - Strategy

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

51
Cutting the Deal

• NOW
• LATER
• Devil in the details
• Always draft
• Never quit
• Do the deal

52
Bad Centralized Bargaining

• Lowest common denominator
• Loss of control
• No local character
• Monetary consequences

53
Good Centralized Bargaining

• Uniform language
• Control
• No screw ups
• Total compensation

54
Employer Responsibility

• Information sharing
• Knowing the other side
• Recognize implications
• Being accountable

55
Salary Compression

• Dont
• No linkage
• Build in pay equity
• Pay properly

56
Toronto Brinkmanship

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

57
Influences

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

58
Bill 55

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

59
Ability to Pay

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

60
Using Counsel better

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

61
Bargaining With Fire

• Cut to the chase
• Demand things back
• Prove your case
• Go to conciliation
• Go to arbitration
• Dont delay

62
The Freeze

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

63
Avoiding the Pits

• R. Ross Dunsmore
• Dunsmore Law
• June 27, 2012
• rrd_at_dunsmorelaw.com