HN2100 Collective Agreement Administration With Paul Tilley Unit 7 Collective Agreement Clauses – Part 2

After completing this unit, you should be able to: Discuss the overall content and the purpose(s) of management rights clauses Discuss the concept of Progressive Discipline and how it is interpreted in contracts Discuss the overall content and the purpose(s) of grievance procedure clauses Discuss the overall content and the purpose(s) of common arbitration clauses Discuss the overall content and the purpose(s) of strike/lockout clauses Discuss the overall content and the purpose(s)

In this unit we will examine different types of provisions found in Canadian Collective Agreements relating to Management Rights, Discipline, Strikes and Lockouts, and Grievance and Arbitration. Many of the provisions in this section have been the subject of many grievances and subsequent arbitrations since issues such as discipline and discharge are very important issues for employees, unions, and employers. Overview of this Unit

Management Rights (1) This provision gives the employer the right to manage its operation and business, to hire, fire, and discipline employees provided that it exercises its management rights in a manner that is consistent with the agreement. Employer cannot violate the collective agreement. In the exercise of managerial authority does not violate a provision of the agreement, then it is a valid exercise of power.

Management Rights (2) This provision also gives employers the right to: Introduce technology without consulting anyone Hire subcontractors Change benefit plans and their providers Management rights are often referred to as “Residual Rights” because they are often subject to other provisions in a collective agreement. One management right is the right of management to unilaterally make and enforce workplace rules.

Management Rights (3) For management rules to be valid, they must: Not be inconsistent with the collective agreement. Not be unreasonable – the interest the employer seeks to promote by the rule must bear a relationship to the rule. Be clear and unequivocal Be brought to the attention of the employees, i.e. they must be aware of it. If used as a foundation for discharge, the employee concerned must have been notified that a breach of the rule would result in discharge. Be consistently enforced, from the time it is introduced.

Progressive Discipline (1) Progressive Discipline applies where there are repeated infractions by a single employee, the penalties for each successive infraction is increased on the assumption that increased penalties will act as a deterrent for future infractions. The concept stems from the fact that employee behaviour should improve as the employee receives increasingly strict discipline. If the employee’s conduct does not improve, the employer should not be required to keep the employee. Discharge is viewed as a final resort. It is important to note, that in all arbitrations involving discipline, the employer has the burden of proof.

Progressive Discipline (2) The most important restriction on the right to discipline and discharge is that such action must be for just cause. Proving just cause has two main elements: Facts relied on by the employer, in support of the discipline must have actually occurred. Punishment levied must fit the offense, in all of the circumstances. The employer need only prove that the employee committed the act in question and that the act is punishable by a specific penalty, in order to sustain the disciplinary response.

There are very few offenses which alone will justify the penalty of discharge. The most common are: Theft Assault Sabotage Because of the seriousness of the penalty, an arbitrator will examine all of the circumstances to determine whether discharge is the appropriate penalty. The penalty of discharge must be for “just cause” Progressive Discipline (3)

Factors arbitrators consider when evaluating appropriate disciplinary include: The employee’s length of service and past disciplinary record Whether the employer has treated other such offences in a similar fashion Whether there was provocation The presence of premeditation or intent Whether the employee admitted to the wrongdoing and apologized The seriousness of the offence The chance the employee will be rehabilitated, if given the opportunity Whether there was a written rule or collective agreement provision with a specified penalty. Progressive Discipline and Discharge (1)

Before an employee is disciplined, management should: Conduct a thorough investigation. Take written statements from all witnesses. If available, physical evidence should be collected and preserved. Employee should be confronted with the allegations, as well as being given an opportunity to provide an explanation. In addition, some agreements require that: Management should ensure that a union official be present whenever possible if an employee is to be disciplined. Disciplinary actions be taken within a specified period of time. Discipline be written out in a note or form. Progressive Discipline and Discharge (2)

Grievance Procedure While strikes and lockouts are not allowed during the term of the collective agreement, all collective agreements provide a mechanism for resolving disputes while the agreement in in effect - the Grievance Procedure. The Grievance Procedure, then, serves two purposes: Allows for disputes to be resolved between unions, employees and management; and Narrows issues before they go to the final step in the grievance procedure. While all collective agreements have a grievance procedure, with the last step being arbitration, not all grievance procedures are the same. With respect to time limits contained in grievances, whether or not they are binding on the party depends on the specific language in the collective agreements. The language used is very important as arbitrators interpret the language to determine the intent of the parties when the agreement was negotiated.

Arbitration is used when the employer and the union have not settled a contract dispute in the workplace. Arbitration is normally the last step in the grievance process. Arbitration Clauses: Establish time limits for referring the matter to arbitration. Determine the process for selecting arbitrators. Confirm the arbitrator’s powers. Arbitration

An arbitrator power is derived from the collective agreement and labour legislation. Their job is to “interpret, and apply” the terms in the collective agreement to determine a breach. An arbitrator hears evidence from witnesses, admit documents and other physical evidence, sometimes visiting the premises, and interpreting statutes. Before making decisions, arbitrators often review similar cases. Arbitrator’s decisions are binding. Most statutes allow arbitrators to substitute the employer’s discipline with a penalty they believe is appropriate. Arbitrator Powers

No Strike/Lockout Provisions All jurisdictions require that there be no strikes by employees or lockouts by employers while there is a collective agreement in place. If employees illegally strike or an employer illegally locks out employees, there are three remedies available for the affected party: The aggrieved party can apply to the Labour Relations Board for an order to force the illegal activity to cease The aggrieved party can submit a grievance based on a violation in the collective agreement If it's an illegal strike the employer can discipline employees.