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Avoiding the Pits

Avoiding the Pits. R. Ross Dunsmore Dunsmore Law June 27, 2012 rrd@dunsmorelaw.com. 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

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Avoiding the Pits

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  1. Avoiding the Pits R. Ross Dunsmore Dunsmore Law June 27, 2012 rrd@dunsmorelaw.com

  2. Agenda • Grievance Arbitration • Termination Issues • Negotiations • The Freeze Dunsmore Law

  3. Part I – Grievance and Arbitration • Who are you? • What mandate do you have? • Is there a role for Union? Dunsmore Law

  4. You • Honor • Honesty • Principle Dunsmore Law

  5. Mandate • The right thing • The management way • What you are told Dunsmore Law

  6. Union Role • Part of solution? • Involvement? • Recognize their needs • No co-operation? Dunsmore Law

  7. Basics - Investigation • Why investigate? • Fairness to employees • Gather facts, photos • Preserve evidence • Tie down stories Dunsmore Law

  8. Essential Investigation Principles • Sooner the better • Listen • Keep an open mind • “Who”, “what”, “where”, “why” • Take notes – lots and lots of notes! Dunsmore Law

  9. Note Taking “No, No’s” • Do not editorialize • No doodling • No multiple events Remember: what you write down might be exhibits at arbitration!!! Dunsmore Law

  10. Preserving the Evidence • Why? • Keep all physical evidence • Retain all notes • Ask witnesses to sign notes or provide written statements • Video tape statements? Dunsmore Law

  11. Basic Discipline Involves • Investigation • Evidence • Progressive discipline • Arbitral intervention Dunsmore Law

  12. Discipline Is • Identify misconduct • Explain correct conduct • Set penalty • Explain implications for future misconduct Dunsmore Law

  13. Discipline Purpose • To correct unacceptable behaviour • To rehabilitate • To build a record Dunsmore Law

  14. Discipline Implications • Impact on other employees? • Implication of failure to discipline • Unsupported supervisor • Unregulated employee Dunsmore Law

  15. Discipline • Termination is secondary Dunsmore Law

  16. Authority to Discipline • Management rights • Specific penalties Dunsmore Law

  17. Restrictions on Discipline • Collective agreement • Policies, rules • Past practice Dunsmore Law

  18. Mitigating Factors • Seriousness of the misconduct • Provocation / Premeditation / Momentary • Employee state of mind • Seniority • Consistency • Condonation • Apology Dunsmore Law

  19. Progressive Discipline • Goal: to correct behaviour through escalating disciplinary responses • Usual steps: • Oral warning • Written warning • Suspensions • Discharge • No time off? Dunsmore Law

  20. Culminating Incident • Event justifies discipline • Degree of discipline based on record • Bad record = severe discipline Dunsmore Law

  21. Zero Tolerance Policies • Discharge in all cases? • Discharge on first offence? • Effect of “zero tolerance” policies at arbitration • Mitigating factors Dunsmore Law

  22. Collective Agreement Basics • Limits employer rights • Gives Union and Employee rights • Defines procedures • Is enforceable by arbitration Dunsmore Law

  23. Grievance Basics • Problem solving • Doing right thing • Or supporting management Dunsmore Law

  24. Process Basics • Individual versus Union? • Time limits • Consistency Dunsmore Law

  25. Mediation – Arbitration • Clear the docket • Delay, delay, delay • Come to dance • Take you ball home Dunsmore Law

  26. Speedy Arbitration • Shared interest • Right arbitrator • Exchange of documents • Will says in advance • Submissions in advance Dunsmore Law

  27. Different Models • Important issues – normal • Test case precedent – speedy • Minor dispute – 5 minutes! Dunsmore Law

  28. Arbitration Basics • All disputes • Interpretation • Application • Violation Dunsmore Law

  29. Arbitral Authority Basics • Apply ESA • Apply Human Rights Code • Cease and desist • Damages – specific, general Dunsmore Law

  30. Arbitrator or Other Tribunal • Who do you want? • Who can you pick? • Who knows your business? • Who cares about you? Dunsmore Law

  31. Remedies • One off or ongoing • Context or short term • Shared responsibility • Any remedy? Dunsmore Law

  32. Part II – Termination Issues • Last chance agreements • Med-arb • Options • Buy outs • Violence in workplace Dunsmore Law

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

  34. Common Law Severance • Ignoring reinstatement rights • Computer imposed contracts • Changing bonus contracts • Balancing the power • Being older – so? Dunsmore Law

  35. Frustration • Unforeseen event • Innocent, insured absenteeism • Loss of own occupation coverage • Loss of seniority • Take bull by horns Dunsmore Law

  36. Part III – Bargaining Dunsmore Law

  37. Bargaining Philosophy • Why are you there? • What are you supposed to do? • What is your mandate? • To whom do you report? Dunsmore Law

  38. Bargaining Philosophy • Not they take, we give • Not, how little do I give away • What’s in it for Employer? Dunsmore Law

  39. Bargaining Philosophy • Decide: work with Union or battle? • Unionized employees are still your employees Dunsmore Law

  40. Preparation “The most important thing is preparation” Dunsmore Law

  41. Preparation • What difference does a Union make? • Tough-minded • Political • Aggressive • Dumb • Expensive Dunsmore Law

  42. Preparation • Local vs. National • Who is in charge? • How to communicate? Dunsmore Law

  43. Test for Issues • Demonstrated Need • Sensible solution – practicability, cost, efficiency • What are comparable doing? • Are comparables comparable? Dunsmore Law

  44. Industry Comparables • The bigs • The similar sized • The precedent setters • Inside-outside • Discover details Dunsmore Law

  45. Other Relevant Information • Government • Municipalities • Local industry • CPI • Electricity costs Dunsmore Law

  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 Dunsmore Law

  47. Saying NO • NO • No with explanation • No by ignoring • No by asking questions • No by preparing for strike Dunsmore Law

  48. Time of Bargaining • Midnight? • Business-like • Deadlines Dunsmore Law

  49. Packaging • Tit for tat • One off’s • Groups • Language only • Money only • The deal Dunsmore Law

  50. At the Table - Strategy • The Funnel • When to hold • When to fold • Arbitration vs. strike Dunsmore Law

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