Managing a Union Workplace

Training Supervisors and Managers

Understanding and administering the collective agreement

While company policy and management decisions are made at the executive level, your collective agreement will be administered on the shop floor.  This means your front line supervisors and managers will be making the judgment calls that will have a direct effect on business operations and on the grievances that you will receive from the union.

In order to make proper decisions, your supervisors must be familiar with the provisions of the collective agreement, and how to properly enforce them.  Proper training is the only way for them to get that knowledge.

Most grievances are won or lost long before the matter gets to arbitration.  Supervisors need to know what decision to make, how to impose the decision, and how to document the decision.  Done properly, you will be on solid ground when responding to any union grievance, and the union will be far less likely to advance the grievance to arbitration.

We have been providing training workshops for our clients for many years.  This involves us tailoring our educational materials to our client’s collective agreement and teaching the supervisors what they need to know about managing within the collective agreement.   This can usually be accomplished in either a one or two day educational session.   When managers properly impose company rules and discipline on the shop floor, it results in most grievances being resolved on the shop floor, without further need for legal counsel. 

Human resource policy development

Maintaining the right to make company rules

An employer has complete authority to manage the business, except to the extent that it has given away that right in the collective agreement.  It is important that an employer not negotiate away its ability to:

Manage its business;

Direct and schedule its workforce;

Hire, transfer or layoff its employees;

Discipline, suspend or discharge and employee for just cause;

Increase or decrease the workforce and assign employees to jobs; and

Establish and maintain reasonable rules and regulations.  

While the collective agreement will dictate the employer and union’s entitlements and obligations, it can not (and should not try to) address every workplace event.   There are an almost unlimited number of different circumstances and events that can arise in the workplace that will need a management response.   That response will often be determined by common sense, formal company policy, or past practice.  

Collective agreements often have a “management rights” clause in them.  Keep the terms of this clause as broad as possible since its only purpose is to limit an employer’s discretion in imposing its decisions upon the employees.

Making company policy

Management can make and enforce policies and procedures on issues not specifically set out in the collective agreement.   Common employer policies that you might want to consider are:

Employee monitoring policies – which are used to define in what circumstances the employee will have a “reasonable expectation of privacy”.

Drug and alcohol policies – keep in mind that addiction is a disability; Human Rights Code requirements and the duty to accommodate will apply.

Harassment policies – most employers use the broader “harassment” policy, rather than the specific “sexual harassment” policy.

Safety policies – these are often workplace specific.  While WCB requirements are statutory requirements, many employers include a policy for addressing those statutory requirements.

Benefits policies – if not addressed in the collective agreement itself, the policy should outline the types of benefits available, without providing a guarantee of a particular level of coverage or benefit entitlement.  An employer should specifically reserve the right to revise and change the benefit package from time to time, unless the collective agreement prevents this.

Computer use policies – such policies often prohibit certain types of computer use and communications, for both efficiency and liability reasons.  Employers can manage the employee’s personal use of the computer and should make clear whether the employee should have an expectation of privacy in email communications.

Conflict of interest policies – useful where employees make or influence company purchasing decisions.

Absenteeism policies – most policies differentiate between culpable and non-culpable absenteeism.  Non-culpable absenteeism policies must recognize the employer’s obligation to accommodate an employee’s disabilities to the point of undue hardship.

Creating company rules is a management function.  Enforcing the rules is usually something done by front line supervisors on the shop floor.  It is important that those supervisors have the proper training to ensure that they know what the rules are, and how to enforce them.  The proper application and enforcement of company rules will put the employer on solid ground when responding to any union grievance, and the union will be far less likely to advance the grievance to arbitration.

Enforcing company policy

Management can make and enforce policies and procedures on issues not specifically set out in the collective agreement. To enforce these “company rules”:

The rule must not be inconsistent with the collective agreement;

The rule must not be unreasonable;

The rule must be clear and unequivocal;

The rule must be brought to the attention of the employees affected before the company can act on it;

The employee concerned must have been notified that a breach of such rule could result in discharge if the rule is used as a foundation for discharge; and

The rule should have been consistently enforced by the company from the time it was introduced.

Creating company rules is a management function.  Enforcing the rules is usually something done by front line supervisors on the shop floor.  It is important that those supervisors have the proper training to ensure that they know what the rules are, and how to enforce them.  The proper application and enforcement of company rules will put the employer on solid ground when responding to any union grievance, and the union will be far less likely to advance the grievance.

We have been providing training workshops for our clients for many years. This involves us tailoring our educational materials to our client’s collective agreement and teaching the supervisors what they need to know about managing within the collective agreement.  When managers properly impose company rules and discipline on the shop floor, it results in most grievances being resolved on the shop floor, without further need for legal counsel.

Disciplinary Issues

Progressive discipline

The progressive discipline process is relatively straightforward: more severe discipline is applied to an employee when problematic behavior continues, in an effort to change the behavior.  Ultimately, either the behavior changes, or we reach the conclusion that the behavior cannot be changed.   The purpose of progressive discipline is to change the employee’s behavior, not to punish the employee for that behavior.  

Except for serious offences which warrant immediate dismissal, and employer will usually have to use progressive discipline before being in a position to terminate an employee for just cause.

It is important that discipline be imposed fairly and consistently, because termination decisions are almost always grieved by the union, and each step the employer took to impose discipline will be subject to scrutiny.

Whether an employer has just cause for termination is ultimately a legal issue.  You may benefit from advise on administering discipline, and determining when you have met the “just cause” threshold warranting termination of employment.

Administration and documentation

Properly documenting a disciplinary decision is almost as important as the decision itself.  Should a disciplinary decision be grieved by the union, the paperwork will be critical to the success or failure of the grievance.  Investigation notes, and disciplinary letters must be drafted with the possible grievance in mind, since these notes will often be the best evidence of whether proper process was followed in investigating and imposing discipline.

Since investigation notes are relevant to the disciplinary process, employer can often be compelled to produce those notes during the grievance process.  Legal advice is always privileged, and not subject to disclosure, so getting advice during the investigation process often results in better paperwork to defend the grievance. 

Last chance agreements

Sometimes, in order to ensure a dismissal is not challenged by the union, or to resolve a termination grievance, the parties will agree to put an employee on a “last chance agreement”.  A last chance agreement is an agreement between the union, the employee and the employer that the employee will return to work, but if the employee fails to meet a particular performance standard in the future, his or her employment will be immediately terminated and the union will not grieve the termination.

A last chance agreement usually requires the employer, union and employee to specifically agree in writing on the following points:

The standard of performance the employee must meet in the future;

That termination will be the automatic consequence of failing to meet that standard;

That the union will not grieve the termination of employment if the employee is dismissed as a result of failing to meet the required standard; and

The duration of the last chance agreement.

A last chance agreement it typically used: where management thinks that the severity of the terms of the agreement will finally “get through” to the employee and change the employee’s behavior, or to “lay the groundwork” for the future dismissal of the employee, which will not be challenged by the union.  

Entering a last chance agreement usually requires some negotiating with the union, and careful drafting of the agreement itself to ensure its enforceability.   It is an effective tool that we often use on our client’s behalf.

Employee Discharge

Just cause for dismissal

Most collective agreements (and in fact, labour legislation) requires that the employer have just cause to discharge an union employee.  Whether you have just cause is a legal issue.  Proving you have just cause is a planning and administrative issue.  

To determine whether you have just cause for termination, you may want to consider the following:

Was the employee aware of the standards and/or adequately warned of the consequences of his performance or conduct?

Were the employer’s standards, directions, expectations, or rules reasonably related to efficient and safe operations?

Did management investigate before administering the discipline?

Did the investigation produce substantial evidence or proof of the offence?

Were the standards, rules, orders and penalties applied evenhandedly and without discrimination?

Was the penalty reasonably related to the seriousness of the offence and the past record of the employee?

Except for the most serious offences, an employee will usually have to have been subject to prior progressive discipline before employment is finally terminated.

Since a union will grieve virtually every every employee dismissal, is is essential that you properly review the case before terminating employment, to ensure that you can meet the necessary legal standard to establish termination for just cause.  Legal advice may be useful before carrying out any dismissal.

You need to have your file in order before you terminate employment.  Demonstrating that you followed proper procedure and have proper documentation is essential.  Trying to “build the case” after the termination has taken place does not often work.  Whether the union advances or drops the grievance will depend upon the process you followed and the paperwork you produced in the process.

Handling dismissal grievances

You can expect the union to grieve virtually every dismissal.

You need to have your file in order before you terminate employment.  Demonstrating that you followed proper procedure and have proper documentation is essential.  Proper termination planning before the termination will determine whether the termination will be upheld if challenged.  Trying to “build the case” after the termination has taken place does not often work. Whether the union advances or drops the grievance will depend upon the process you followed and the paperwork you produced in the process.  It has to be done right.

When responding to the union’s grievance, keep in mind that any written response will be subject to disclosure, and will be put into evidence should the matter proceed to arbitration.  You need to be certain of your legal position in responding to the grievance, and make sure that your paperwork does not end up prejudicing your case.  Legal advice at this point might be advisable. 

Attendance management

Employee absenteeism falls into two categories:

Culpable absenteeism – which is within the employee’s control and can be dealt with as a disciplinary issue; and

Non-culpable absenteeism (also known as “innocent absenteeism”) – which is absenteeism for health reasons or other situations beyond an employee’s control and is not disciplinary.  Physical disabilities, mental disabilities and addiction issues usually fall into this category.

It is critical that the employer know the difference, since imposing discipline for non-culpable absenteeism is usually a breach of human rights legislation.

Non-culpable absenteeism is often caused by an employee health issue.  An employer has significant legal obligations when dealing with a disabled employee, including a duty to accommodate that disability.  This is a complex area of the law, and requires most employers in such situations to seek legal advice.  

Human rights legislation requires that an employer accommodate a disabled employee.  Accommodation may often involve modifying work duties or hours of work for an affected employee.  A failure to properly accommodate an employee’s disability will often results in a human rights complaint.  

The grievance process

Responding to the Grievance

When an employer has imposed discipline or discharged an employee, the union may file a grievance regardless of the strength of the case.  This is often done simply to appease the affected employee, or to demonstrate to the other employees that the union is sticking up for them.

Whether the union ultimately drops the grievance or takes it to arbitration will depend upon whether the union thinks the employer can prove its case.  

You need to have your file in order before you impose discipline or discharge an employee. Demonstrating that you followed proper procedure and have proper documentation is essential. Proper planning before taking action will determine whether the discipline or discharge will be upheld when challenged. Trying to “build the case” after the termination has taken place does not often work. Whether the union advances or drops the grievance will depend upon the process you followed and the paperwork you produced in the process. It has to be done right.

When responding to the union’s grievance, keep in mind that any written response will be subject to disclosure, and will be put into evidence should the matter proceed to arbitration. You need to be certain of your legal position in responding to the grievance, and make sure that your paperwork does not end up prejudicing your case. Legal advice at this point might be advisable.

Arbitration

Grievances that are not resolved between the employer and union may ultimately be determined by an arbitrator.  While an arbitration is intended to be faster and less formal that court proceedings, often it is not.

An arbitrator has almost complete authority to hear the case, to determine what evidence to admit and to render a decision.  An arbitration is a legal proceeding that will bind both the employer and union, so it is critical that the employer’s case be presented properly and completely.

An arbitration is a fairly complex legal process, so most employers will retain legal counsel to represent them at arbitration.

Mediation

Mediation is a non-binding settlement process where the employer and union involve a neutral third party to assist them to resolve the grievance before it goes to arbitration.  Most arbitrators are of the view that the parties voluntarily reaching a settlement is preferable to the arbitrator imposing one, so even where a grievance has been referred to binding arbitration, the arbitrator will often conduct a mediation first, to see if he or she can get the parties to settle their differences directly.

Even though mediation is a voluntary process, it is critical that an employer is able to effectively present its case.  Preparing for mediation requires much of the same preparation as for an arbitration, and the leverage you will have to get a settlement will depend entirely on the strength and presentation of your case.  Most employers will retain counsel to represent them at the mediation process.

Managing the Relationship with the Union

The union's obligations to the employees

Sometimes when dealing with the union, it will be difficult for you to figure out why the union is taking a particular position in a particular matter.  There may be circumstances within the union or with the employees that you are not aware of.  The union’s decisions might not always make sense to you.

The union has to represent all of the employees, even the unreasonable ones.  If an employee thinks the union’s representation of them is deficient, they will often file a Duty of Fair Representation complaint with the Labour Relations Board.  While few such complaints succeed, the union will want to avoid having to deal with  this type of complaint, and will sometimes go to significant lengths to appease a difficult employee.

Most employees will not be able to objectively determine whether the union is properly representing them or not; they will instead rely upon their perception of how hard the union fights for them, and how much time is being spent on their grievances.  Because of this, the union has a great need for process – it has to be able to demonstrate to its members that it is doing its job and taking the employee’s concerns seriously, whether the grievance has any merit or not.

When dealing with a grievance, you need to have confidence in your legal position.  Never judge the strength of your case by how hard the union seems to be pushing the grievance, since the two may be completely unrelated.

Dealing with the Union

Sometimes when dealing with the union, it will be difficult for you to figure out why the union is taking a particular position in a particular matter. There may be circumstances within the union or with the employees that you are not aware of. The union’s decisions will not always make sense to you.

Do not take the union’s positions personally, and try not to let emotions and personality conflicts affect your relationship with the union. Keep in mind the following:

The union has to represent all of the employees, even the unreasonable ones, and wants to avoid complaints to the Labour Board.  Sometimes helping the union avoid a Labour Board complaint will generate goodwill for the company.

The union has a need for process – it has to be able to demonstrate to its members that it is doing its job.

If it is obvious to you that a grievance has no merit, do not get frustrated if the union requires meetings and discussions before dropping the case. The union is simply showing its members that it takes their concerns seriously.

Never embarrass the union in front of its members – you will have to work with the union in the future and the union will not forget.

Sometimes, the union makes grievance decisions for internal, political reasons. You will not always know why the union is “going to the wall” for a particular employee. It might have nothing to do with you or your management decision being grieved.

If it looks like you will not be able to resolve the problem directly with the union, you may want to consider getting outside legal counsel involved.  If the problem has become personal for either the union or the employer (or both), an experienced “outsider” can take the personal element out of the equation, and try to get the parties to resolve the problem objectively as a legal issue.

The benefits of a good relationship with the union

A difficult relationship with the union will drive up your costs.   If the union is constantly at the workplace looking for problems, it will find them, and you will have to spend time and resources responding to the union’s complaints.

You do not have to love the union, but you have to work with it.  You need to be able to resolve your differences with the union on the various issues that arise, without destroying the working relationship.  You will not always agree with the union, but if you can build a relationship of trust with the union representatives, problems will be easier to resolve.  Ideally, you want most (or all) grievances to be resolved on the shop floor, without having to involve upper management or legal counsel.

There is no downside to having a good relationship with the union.  Building a good relationship with the union starts at the bargaining table, and continues throughout the term of the collective agreement.   It takes time to build credibility and trust with the union.  Who you choose to represent you as legal counsel may influence the relationship as well.  It may be an advantage to use counsel who has worked with your union in the past.