Bulletin 16/06

November 23, 2006
To:  Executive Council
Alternate RVPs
Local Presidents
LROs
Distribution or posting for the members

Re:  Bargaining Models and Dispute Resolution

The UTE must be attentive to its members. As such, delegates at the 2005 UTE Convention adopted the following resolution aimed at identifying the best method for effectively conducting the bargaining process. 

RESOLUTION 238: Be it resolved that the Standing Bargaining Committee explore the various bargaining processes (such as positional bargaining, binding arbitration, interest-based bargaining etc,) to determine the most beneficial process and make recommendations to the December 2005 UTE Executive Council.

The members of the Standing Bargaining Committee, with assistance from Sister Gaby Lévesque (PSAC negotiator) examined the dispute resolution processes and bargaining models with a view to analysing, evaluating and recommending to the UTE Executive Council the one that seems to best serve the interests of its members.

To this end they read the Public Service Modernization Act as well as various documents on these subjects to gain an understanding of the basics of bargaining and dispute resolution procedures. They then identified the advantages and disadvantages of the bargaining models and dispute resolution processes. The two (2) familiar bargaining models are positional bargaining (also known as confrontational bargaining) and win-win negotiation (based on mutual interests). The dispute resolution procedures are conciliation (conciliator and/or conciliation board) and arbitration.

BARGAINING MODELS:

Positional bargaining:

Advantages:

  • This is a well-known process that has proven itself over many years of use. Most of the collective agreement articles have been won this way. -This is a stronger process when a union has the support of its members. The UTE has this support.
  • We enjoy visibility among the public and have its support. This process lets us take advantage of this situation.-We can voice all member expectations because the bargaining team presents all bargaining demands to the employer, not just those interests that are common to both parties.

Disadvantages:

  • This process is doomed in advance if the union does not have the support of its members. -It can be a difficult process if the union does not have visibility among and support from the public.
  • This process lets the employer use delaying tactics for unduly prolonging the bargaining process.

Interest-based bargaining:

Advantages

  • There is less need for support from members and the public.
  • Assumes that we are in a position of equality with the employer.
  • Both parties must be trained in this bargaining model.
  • Improved bargaining if the employer is in good faith.

Disadvantages:

  • The union is always in an inferior position to the employer since we do not have the same powers, so it is hard to find common interests.
  • The employer has not yet demonstrated good faith in previous bargaining processes. 
  • The parties must agree to take the necessary training.

DISPUTE RESOLUTION:

Conciliation with right to strike:

Advantages:

  • The conciliator and the chair of the conciliation board have the objective of finding solutions for settling a dispute based on both parties’ demands.
  • The conciliator’s decision and the chair of the conciliation board’s report are not binding when unfavourable; it becomes a basis for negotiation.
  • The current economic situation favours conciliation. 
  • Support from members and the public does not influence the conciliator’s and the chair of the conciliation board’s decision.
  • Conciliation lets us keep our right to withdraw our services (strike).
  • The conciliator and the chair of the conciliation board are independent individuals, which helps circumvent the employer’s inflexibility.
  • The conciliator and the chair of the conciliation board are not required to compare our demands with other collective agreements, but can draw on them.  They are there to find solutions to the demands submitted.
  • Conciliation has yielded some wins.

Disadvantages:

  • The conciliator’s decision and the chair of the conciliation board’s report are not binding when favourable.
  • Support from members and the public may have a limited effect on the conciliator’s and the chair of the conciliation board’s decision.
  • The employer knows that calling a strike is not easy.
  • Conciliation prolongs the bargaining process.

Arbitration:

Advantages:

  • The arbitrator must take into account compensation and other similar employment conditions in the private and public sectors.  If we were vulnerable workers, this would be beneficial.
  • The arbitrator’s decision is binding if the decision is favourable for us. This becomes an advantage.
  • If a union and its members are not prepared to defend and fight for their interests, this is an easy route. 
  • If we have too many members designated essential service.

Disadvantages:

  • Like all unionized workers, we have good working conditions and are considered privileged workers; the arbitrator has to take that into account. He/she must also take into account the compensation and other working conditions of people in comparable positions in the public service and private sector in addition to the state of the Canadian economy.
  • The arbitrator’s decision is binding and not subject to appeal. If the decision is unfavourable for us, we have to live with the consequences.
  • The arbitrator may impose (binding arbitration) reductions to certain clauses of the collective agreement in comparing to other collective agreements.
  • The arbitrator’s decision cannot last longer than two (2) years.
  • The arbitrators have never decided in a majority in favour of one side.
  • The arbitrator is selected by both parties and is not necessarily familiar with members’ work.
  • The arbitrator must make a decision based on representations of the parties, not necessarily on demands; he/she is not required to resolve the conflict.
  • The arbitrator is never innovative and avoids making decisions that could set a precedent.
  • We lose our right to withdraw our services (strike).
  • The arbitrator is not familiar with the workplace.

Based on the findings of this analysis, the members of the Standing Bargaining Committee recommended that the UTE Executive Council continue to support the PSAC position that the PSAC/CRA bargaining method be conciliation with the right to strike. The UTE Executive Council has approved this recommendation and will proceed in this fashion for the next bargaining process, to officially begin July 1, 2007.

Bargaining is everyone’s business, and we must stay informed.

Respectfully submitted,

Denis Lalancette
On behalf of the Committee members