The Law of Work: Industrial Relations and Collective Bargaining HRM 3422M Industrial Relations Week 7 (24 February 2020) The unionization process and unfair labour practices Recall from last week: • Chapter 7: • Why do workers join unions? • How do unions affect business outcomes? • Plus: • What unions are • The purposes that unions serve • What role unions have played in creating community • Union structure (parent unions, local unions) • Union involvement (why members do not participate) • And ‘The cost of a decline in unions’ This week: How do unions work? • Processes • Organizing drives to get members • Union certification process • Membership meetings • Collective bargaining • Grievance procedures/ dispute resolution • Strikes and other industrial action Union Certification Process in Canada • See the handout on Moodle prepared by Dr. Doorey, “Union Certification Process in Canada” Union organizing drive/ campaign • Process begins when employees contact union or union • • • • • representatives contact employees Union organizers seek employees’ support within the bargaining unit through the signing of membership cards Union must sign up a substantial percentage of employees (currently at least 40% of employees to convince Board to hold a representation vote) Union will file an ‘application for certification’ with the OLRB (and employer also gets a copy) Employer files a ‘response to application for certification’ Board determines what is an “appropriate” bargaining unit (discussed a bit later) Example: OPSEU campaign • 2016 campaign to unionize part-time workers in colleges across Ontario • Their goal was to bring equal rights to part-time workers and full-time workers • This video is an example of how they were trying to spread the word about the unionization campaign • https://www.youtube.com/watch?v=ZOzq2l_1HXs Difficulties of union organizing • Card support is difficult barrier for union • Organizers are a substantial expense for union • Composition of bargaining unit is unknown • No right of access to employer’s premises • No list of employee names and addresses • Fear of employer reprisals against supporters • Stressful because employees cannot “abstain” • Here is an example of a training session for union organizers: https://www.youtube.com/watch?v=ZUGh70nmLoU Union Certification under the OLRA • What is certification? • Recognition that a particular union is the sole bargaining agent for all employees in a bargaining unit • Who grants certification? • The Ontario Labour Relations Board (OLRB) • OLRA contains special provisions for Certification in the construction industry • Not covered in this course • Unusual nature of workplace in construction 9 First – think about the parties • Who is an “employee” for the purpose of union certification applications? • Who is the employer? 10 “Employees” • “Employees” have the right to join a union and to CB • Key point: who is an employee? • Might not include those in non-standard employment • Might not include some people in the public sector • Who is the legal employer? • Restructuring, outsourcing, flexible methods of production 11 Employees, continued • Some employees are not given access to CB under general labour relations legislation • Some partially excluded groups: civil servants, firefighters, police officers, domestic workers, agricultural workers, members of certain professions • Politics of inclusion • Where to draw the line? • Interesting examples from the US: Are college football players 'employees’? Cornell graduate students union campaign Princeton graduate students consider unionization Employers • Identity of employer is not always self-evident • An employer can be: • An individual • A partnership • A corporation • A grouping of inter-related employers • A formalized employers’ organization • An employer may use multiple or complex corporate legal vehicles to conduct its business • This can make it difficult to identity the true employer, hampering union efforts at certification • Or, a unionized employer can contract out some of its operations, potentially to avoid obligation to CB 12 Appropriate bargaining unit • Criteria used by the Board: • The wishes of the employer and the union • “Community of Interest” among the employees • Similarity of skills, interests, duties, and working conditions • The physical and administrative structure of the employer • Functional integration of the work and employees • Geography Appropriate bargaining unit • An example at York University: • CUPE 3903 Units 1, 2, 3 and 4 • CUPE is the national union (Canadian Union of Public Employees) • 3903 is the union ‘local’. • CUPE also represents contracts faculty and grad students, etc. at the University of Toronto. In that case, same national union (CUPE) but different local (3902) • CUPE 3903 has four bargaining units with four separate collective agreements (all currently in negotiations with York) • • • • Unit 1 = Teaching Assistants (usually PhD students) Unit 2 = Contract Faculty (are hired to teach specific courses) Unit 3 = Research Assistants and Graduate Assistants Unit 4 = Part-time librarians • Each of these units was deemed an ‘appropriate bargaining unit’ by the Ontario Labour Relations Board based on the criteria discussed in the previous slide/ your text (see pg. 115) Appropriate bargaining unit • Generally preferable to have larger bargaining units • For employees: strength in numbers, greater solidarity • For employer: similar, but in the context of fewer units to bargain with • • • • (fewer collective agreements to manage) But need to balance the desire for large (and therefore potentially stronger) units, with the need to recognize unique communities/ different communities of interests For example, TAs (commonly PhD students in their 20s) likely have different concerns (due to stage in life) than contract faculty (commonly in their 30s and 40s, potentially more focused on things like mortgages, starting/supporting a family, etc.) This influences the terms and conditions of collective agreements that members want to focus on Recall the strike in 2015: • A couple of weeks into the strike, Unit 2 (contract faculty) agreed to the updated terms that York offered, and went back to work • However, Units 1 and 3 stayed on strike for another couple of weeks until other/all terms were satisfied Union Certification Process in Canada • Take a moment to revisit the handout on Moodle prepared by Dr. Doorey, “Union Certification Process in Canada” • Keep revisiting the handout as you work through the slides to make sure you understand the flow/process Models of Certification • 1. Voluntary recognition • 2. Card-based model (card check) • One-step process • If 55% or more of the bargaining unit (BU) signed cards, then the union is automatically certified (to eliminate employer intimidation) • 3. Vote-based model (mandatory certification vote) • Two-step process • If 40% or more of BU signed cards, then vote will be held (secret ballot vote held by OLRB within 5 days) • Union certified if greater than 50% of votes cast are for the union • Once certified, union is legal rep for all employees in unit Basic principles of certification • 1. OLRB will certify a union as the exclusive bargaining agent if a majority of employees indicate support (i.e. democratic principle of majority rule) • 2. Employer required to bargain in good faith once union is certified (discussed later in lecture) • 3. Unfair labour practices prohibited • e.g. can’t fire union supporters • e.g. can’t threaten to close if unionized 1. Exclusive bargaining agent • The union becomes the “exclusive bargaining agent” of all bargaining unit employees • Bargaining unit employees can not have more than one union representing them • Requirement – start bargaining a ‘collective agreement’ (one side usually gives ‘notice to bargain’ to other) • It’s in the interest of HR to respect and spend time building a relationship with that bargaining agent – elected by workers to be the voice of workers • See this short video with Buzz Hargrove (director of the Centre for Labour Management Relations at Ryerson) on how a positive labourmanagement relationship will benefit a company: https://www.youtube.com/watch?v=qOQcoTBleuk 2. Bargaining in “good faith” • Legal duty to bargain in good faith – applies to both sides throughout process • Two components to duty • Enter into honest bargaining, avoid dishonesty (e.g. concealing plan to close operation) • Must bargain with intention to reach a collective agreement • Does not mean no hard bargaining! • NOT a duty to ‘give in’ or agree to so-called ‘reasonable terms’ • But, cannot act with intention of avoiding reach an agreement Duty to bargain in good faith, cont’d • Enforcement: complaint-driven (to OLRB) • Often hard for OLRB to decide • Where to draw the line between surface bargaining (illegal) and hard bargaining (legal)? • Remedies • Principle – avoid excessive interference, while still trying to repair “damage” • E.g. direct one side to alter their behaviour, withdraw specific demands, etc. • First Contract Arbitration – may be open access or only as remedy to proven ‘bad faith bargaining’ (ensures union gets at least one first agreement, get relationship on its feet) Duty to bargain in good faith, cont’d • Examples of violations of duty to bargain in good faith • Outright refusal to bargain, refusal to meet • Surface bargaining • Boulwarism • Failure to disclose significant plans affecting BU • Direct bargaining • Undermining/avoiding union support during bargaining (e.g. fire or discipline union supporters during bargaining without legitimate business reason) • “Reneging” • “Freeze” violation • This is also an ‘unfair labour practice’ 3. Unfair labour practice (ULP) • An action undertaken by either the union or the employer that violates one or more articles in the relevant labour relations legislation • The idea behind the prohibition of unfair labour practices is that certification process should be free from any undue influence from the employer • Examples: firing the organizer, threats to close or relocate the plant, changing the terms of employment after certification application, etc. • Similarly, unions cannot resort to intimidation to compel anyone to join the union or refrain from joining another union • Here is a video about ULPs by the employer against unions. The video aims to raise awareness on such discrimination and provide guidelines on identification and possible responses of unions to different forms of ULPs: • https://www.youtube.com/watch?v=fAx4Gil-Y50 Union decertification • If no contract concluded in the first year after certification • Union becomes inactive and ceases to represent the interests of its members • If the employer goes out of business • If employees petition and vote in favour of decertification, either to: • Become non-unionized; or • Replace current union with another union Process of decertification • Establish support for decertification from 40% of the members • File application with the OLRB during open period (last two months of contract) • Decertification vote is then held • Union will be decertified if the majority of the members favour decertification • (Similar to process of certification) The Law of Work: Industrial Relations and Collective Bargaining HRM 3422M Industrial Relations Week 8 (2 March 2020) Collective Bargaining 2 Recall from last week • Union certification • Union organizing drive/campaign • OLRA, OLRB • Identifying the parties to the CB relationship • Appropriate bargaining unit • Unfair labour practices • Bargaining in good faith 3 On our campus • You may be personally familiar with the strike by CUPE 3903 on campus in the 2017-18 school year. Here are some articles/resources from when it first started: • Academic workers reject York University's "final offer" • https://3903.cupe.ca/students/ • https://3903.cupe.ca/ • The strike was due to a breakdown in collective bargaining; a failure to agree on key issues of importance to both parties, even with the assistance of a conciliator 4 Key issues in the strike • Increasing job security for contract faculty • Protecting funding for Teaching Assistants • Reversing the cut to more than 700 jobs • Equity and accessibility in the workplace • For more info: https://3903.cupe.ca/students/ 5 What did this mean for students in the School of HRM? • We are not ‘directly’ affected by the strike for a couple of reasons: • The School of HRM does not have any CUPE 3903 members (the bargaining unit that went on strike) • For example, TAs (teaching assistants) are CUPE 3903 Unit 1 members, but we do not have TAs. Instead, we have ‘graders’ • Any class that continues in the School of HRM during a strike is ‘crossing a picket line’ by holding classes on campus, and is even crossing a ‘virtual picket line’ by holding the class online. It’s a decision we made based on what we value and how we choose to balance our competing interests and pressures. This is not blame (I did it too, when the majority of the class voted to continue) but something to think about and reflect on 6 Campus united or divided? • We are part of the broader university system that affects all workers, students, and faculty. • For example: • When contract faculty are faced with increasing precariousness in their jobs, they are less able to prepare properly for their classes and have less time to meet with students – affecting the quality of your learning experience • When TAs do not earn enough to take care of themselves and their families, they are less able to focus on their research and teaching; in some cases forced to work multiple jobs and with less time to focus on students • Find more information on the strike here: https://3903.cupe.ca/students/ 7 Back to Collective Bargaining • The original focus of this lecture is to consider elements of collective bargaining, including: • The structure of bargaining • Participants in collective bargaining • The content of bargaining • Restrictions on bargaining issues • Types of legal rules regulating collective bargaining Collective Bargaining • First, consider structure of bargaining • “Formal” structure could be: • Single union, single ER, single BU (default) • Single union, single ER, multiple BU • Single union, multiple BU, multiple ER • Multiple unions, multiple BU, single ER (think of York, for example) • Multiple unions, multiple BU, multiple ER • *could also be single or multiple workplaces • There are sometimes “informal” arrangements: • Multiple employers voluntarily agree to bargain together • “Pattern” bargaining • Since voluntary – may opt out at will Collective Bargaining • Participants in bargaining • Teams of negotiators on each side: • Union team (e.g. CUPE 3903) • Management team (e.g. York University) • Content of bargaining • Can bargain for numerous types of issues – wages, benefits, hours, working conditions, overtime, seniority, hiring, promotion, discipline, job security, etc. • Restrictions on bargaining issues • Min term is 1 year • ESA minimums, human rights code, union security provisions (Rand formula) if union requests • Grievance procedure, with binding arbitration mandatory • Doctrine of ‘management’s rights’ Types of legal rules regulating CB • Statutory freeze provisions • Employer cannot change terms of employment without union consent • “Business as before” • (1) Certification freeze • (2) Collective bargaining freeze • Duty to bargain in good faith • And make reasonable efforts to conclude a collective agreement • Rules regulating an impasse, strikes, and lockouts Duty to bargain in good faith • Recall from last week, two components to “duty” • Enter into honest bargaining, avoid dishonesty • Must bargain with intention to reach an agreement • Procedural duty to bargain: The HOW of CB • Duty to meet and be prepared to negotiate • Duty to provide information and respect the union’s role as the employees’ exclusive representative • Duty to be honest and to disclose plans that will affect bargaining unit employees • Substance of bargaining proposals: The WHAT of CB • Bargaining illegal terms • Terms that can be proposed, but not ‘bargained to impasse’ • Hard bargaining vs. surface bargaining A bit on the process of negotiating • Distributive vs. integrative styles of bargaining • Settlement zones • Procedural vs. substantive issues • Tangibles vs. intangibles • BATNA Approaches to bargaining: Distributive vs. Integrative • Distributive • A win for one side is a loss for the other (win-lose) • Integrative • Both sides can win (win-win) • Think of it like sharing a pie • Are you trying to get as much as you can for yourself? (meaning the other side will get that much lesser) • Or are you trying to find the most equitable solution? • Does not necessarily mean splitting half-half, though that is one option Substantive vs. Procedural Issues • Substantive • The items in the agreement (usually economic, related to wages, terms and conditions of work) • Procedural • Processes by which the parties interact during the terms of the agreement (think about grievance procedures, having to give notice, etc.) “Settlement zone” • Each party has a bottom line (i.e. not willing to go any lower/ take any less than this bottom line) • Also called a ‘resistance point’ • Each party will try to aim much higher than this • This is called a ‘target point’ • The idea is that hopefully each party will engage in a give-and-take where both parties will end up somewhere in the middle of these points • Also called a ‘positive contract zone’ or ‘positive settlement zone’ • If this ‘zone’ doesn’t exist, the parties will not be able to reach an agreement Settlement zone (contract zone) Contract Zone $100 Buyer’s Target $110 $120 Seller’s Resistance $130 Buyer’s Resistance $140 $150 Seller’s Target Buyer’s Target: “Ideally I’d only have to pay $100 for the phone” Buyer’s Resistance: “But I’m willing to go as high as $130, no more” Seller’s Target: “Ideally, I’d like to get $150 for this phone” Seller’s Resistance: “But I’ll accept less, as long as it’s at least $120” Negotiations • A decision-making situation in which two or more parties try to reach an agreement • This is not limited to labour-management negotiations • Examples around you? Characteristics of a Negotiation Situation • Two or more parties • Conflict of needs and desires between two or • • • • more parties It is voluntary. Parties negotiate because they think they can improve the outcome Presence of give-and-take (aka compromise) Parties prefer to negotiate than fight openly or call in a higher authority Management of tangibles and intangibles Tangibles vs. Intangibles • Tangibles – The price or the terms of agreement • Intangibles – The underlying psychological motivations that may directly or indirectly influence the parties during a negotiation Sheldon and Amy's relationship agreement The Negotiation Process • Four key elements of the negotiation process 1. Managing interdependence 2. Engaging in mutual adjustment 3. Creating or claiming value 4. Managing conflict • These four processes are central to any negotiation 1. Managing Interdependence • Independent – Parties are able to meet their own needs without the help and assistance of others • Dependent – Parties must rely on others for what they need • Interdependent – Parties are characterized by interlocking goals – Zero-sum and non-zero-sum (or distributive vs. integrative) Distributive vs. Integrative Situations • Distributive – Zero-sum (win-lose) – One party’s gain is the other party’s loss – Example: Dividing a scarce resource, like sharing a pie • Integrative – Not zero-sum (win-win) – One party’s gain does not block the other party from gaining; may in fact help – Example: Mutual gains through writing lyrics and composing music to produce a top hit BATNA • Best Alternative To a Negotiated Agreement • Major source of power in a negotiation • If you can say ‘no’ and walk away without a deal because your alternative is more attractive, this leverages your bargaining power • Can manipulate the other party’s perception of your BATNA to get them to agree • Examples: ‘The used car’ or having one vs. multiple job offers Firefly 2. Engaging in Mutual Adjustment • Negotiations begin with opening positions • Proceed by suggesting alterations to the other’s proposal • Also making changes to own position • Back and forth towards a common range • Target points • Resistance points NHL negotiation watch Concession-Making • Negotiators needs to trust and believe they are being treated honestly and fairly . • Dilemma of honesty • How much of the truth about your needs and desires should you tell the other party? • Dilemma of trust • How much of what the other party tells you should you believe? Clip: Just Go With It 3. Claiming and Creating Value • Claim value: In distributive bargaining situations, the purpose is to do whatever is necessary to claim the reward, gain the lion’s share, or gain the largest piece possible (e.g. buy a used car or a fridge at a yard sale) • Create value: In integrative bargaining situations, the purpose is to find a way for all parties to meet their objectives (e.g. planning a wedding in a way that both sides of the family are happy) Claiming and Creating Value, cont’d • Negotiators must be able to recognize situations that require more of one approach than the other – Distributive is useful if time and resources are limited, and there is little chance of interacting with the other party in the future • Negotiators must be versatile in their comfort and use of both major strategic approaches – There is no single best, right, or preferred way to negotiate • Negotiators tend to be biased toward seeing problems as more distributive/competitive than they really are – People have baggage! Negotiators often leave unclaimed value because they failed to recognize opportunities for creating it Intolerable Cruelty Disputes under collective agreements • Why? • Imperfections in bargaining (inability to address all issues adequately/clearly, lack of shared understandings) • Unforeseen circumstances • Language problems • How to resolve? • In non-union environment, can work through complaints processes offered voluntarily by ER • In union environment, there will be a dispute resolution procedure outlined in agreement When CB reaches an impasse • Two legal routes: • “Economic warfare” route • Interest arbitration route • In the current strike situation, CUPE 3903 and York did try working with a conciliator • But the process has broken down into a strike situation • More on strikes and lockouts in Week 9… 30 Recap on CB: • Collective Bargaining • The structure of bargaining • Participants in collective bargaining • The content of bargaining • Restrictions on bargaining issues • Types of legal rules regulating collective bargaining • Next week: STRIKES AND LOCKOUTS The Law of Work: Industrial Relations and Collective Bargaining HRM 3422M Industrial Relations Week 9: Strikes & Lockouts (9 March 2020) 2 Recap on CB: • Collective Bargaining • The structure of bargaining • Participants in collective bargaining • The content of bargaining • Restrictions on bargaining issues • Types of legal rules regulating collective bargaining • Now: STRIKES AND LOCKOUTS Strikes and Lockouts • High percentage of negotiations are settled without strikes or lockouts, though they do still occur from time to time • Strike: • In the OLRA, a strike is defined as “a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding” • -or, “a slow-down or other concerted activity on the part of employees designed to restrict or limit output” • Lockout: • Employer closes workplace, suspends work, or refuses to employ workers temporarily, for bargaining pressure purpose • Both types are referred to as ‘industrial action’ Functions of strikes • Better wages and conditions: to fight for better wages, job security and working time • Cathartic effect: to reduce pent-up anger and unresolved grievances • Union politics: used by union leaders to solidify the rank and file • Credibility: to establish or enhance reputation for subsequent rounds of bargaining Legal preconditions to strike/lockout 1) Collective Agreement must be expired (same in all provinces) – otherwise it’s a ‘wildcat’ strike 2) Union members have authorized the strike action through a secret ballot (Strike vote by BU employees; greater than 50%) 3) Attempts at conciliation have proven unsuccessful 4) Parties have waited through a statutory “cooling off” period (14 days in Ontario but can be up to 17 days) • With the exception of holding a vote (point 2 above), same rules apply to employers before they can legally “lock out” employees (and withhold pay and/or benefits) Essential Workers • Some workers in the public sector do not have a legal right to strike • Can you imagine what would happen if all police officers, firefighters, and nurses went on strike? • Involvement of ‘essential workers’ in a labour dispute puts public safety at risk • If the definition of ‘essential workers’ were to be broadened, this would hurt the labour movement • Imagine ‘essential workers’ also included teachers, TTC operators, healthcare workers • Perhaps more convenient for us, but takes away this basic right from a larger group of workers (e.g. regressive) Strike and ratification votes • CA does not become effective unless approved by more than 50% of employees voting in a ratification vote • Strike not legal unless approved in secret ballot vote (taken not more than 30 days before CA expires, or after expiry) and won by 50% plus one • In practice, unions do not plan to go on strike unless they have a much higher majority of their membership in favour of it (e.g. 70% or more) • Say, for example, there was a low turnout for the vote and only 60 voted in favour of the strike – this may not be a good indication of whether your membership at large will be willing to engage in strike action Do unions win/lose strikes? • Findings • Clear negative relationship between length of strike and mean net benefits • The longer the strike, the lower the net benefits • Unions win short strikes and lose long ones
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