Preventive Mediation : NS Labour and Advanced Education, Conciliation Services

Dispute Resolution Services

Introduction

You've been chosen as the person who deals with labour relations and worker rights in your workplace. You might be a shop steward or employee representative, a human resource professional or employer representative, or perhaps an interested employee or employer.

Regardless of your title or position, questions about workers' rights and benefits can be complicated. Collective agreements can be open to interpretation, and there are always unique situations. Things aren't always clear.

On any given day, a variety of questions can come up. When does my extra week of vacation kick in? I've been passed over for a promotion in favour of a part-time employee - what are my rights? I was suspended for one day for smoking on the job - is that a breach of our collective agreement? I was denied overtime - what can I do about it?

Very often, the answers to these questions hinge on the interpretation of a collective agreement. A collective agreement is a framework that lays out basic workplace rules about such matters as vacation, overtime, discipline, and seniority.

When a union and an employer face a difference of opinion about the terms of the collective agreement it's called a grievance. Once a grievance is identified, the parties must work to find an answer.

Handling Workplace Grievances

Resolving Grievances

There are three basic routes to resolving a workplace grievance:

  1. In-house Resolution
  2. Labour and Advanced Education's Grievance Mediation Program
  3. Arbitration

The methods of resolving a grievance all have pluses and minuses. In-house resolution may be appropriate for one concern but not for another. For instance, while resolving the issue in-house may help to develop problem-solving skills, in some cases more experienced and qualified advice may be needed.

Before deciding which is the best route to take, it is important to ask some questions. For example, how much time and money do you have to dedicate to the process? While each approach involves some time, arbitration tends to be the most costly and time-intensive. It should usually be the last in a series of options available for resolving disputes in the workplace.

Option #1: In-house Resolution

The preferred option is a solution reached between the parties to the dispute through an informed, but informal, process in-house. This should always be an option that is kept open. Two key players are the union representative and the management representative responsible for labour relations.

Questions to consider include:

  • How complicated is this issue?
  • What is the current labour-management climate?
  • What skills are available in-house?
  • Is there a labour relations committee in the workplace?
  • What does your collective agreement say about the grievance procedure?

Option #2: Labour and Advanced Education's Grievance Mediation Program

This program involves using the services of a professional mediator to help solve the problem. Both parties must request this assistance. The mediator works as a neutral third party and keeps the process flexible, informal, and creative. The intent is to find solutions that satisfy the interests of both parties. The process allows the "principals" to shape the agreement, rather than having a third party impose a settlement. Meetings are normally scheduled within two weeks and are held at the workplace whenever possible. There is no charge for the mediator's services.

It is important to note that if an agreement is not reached in mediation, the parties still have the right to access other options, including arbitration.

Option #3: Arbitration

Arbitration is much like a court case, involving an arbitrator (usually a lawyer) who hears evidence and arrives at a decision by which both parties are bound. Costs vary dramatically, and both parties share the cost equally. A written decision may take up to six months, and there is no guarantee that the outcome will be satisfactory to either party.

Collective agreements normally include a process for the parties to use a sole arbitrator or an Arbitration Board composed of a labour nominee and a management nominee who then decide on a neutral chair. The arbitrator or board will then proceed to hear a case in a formal setting, and will render a written decision based on contract language, case law, and the facts as presented. The workplace must abide by the decision. Arbitration is typically quite costly, requires much preparation, and usually takes a significant period of time.

Grievance Mediation

The use of mediation in grievance disputes strengthens collective bargaining relationships and is one of the more important tools in any labour-management relations program.

What is a grievance?

A grievance is a difference between the parties arising from the interpretation, application, administration, or alleged contravention of the agreement while that agreement is in effect.

What is a mediator?

A mediator is a neutral third party who works constructively with the parties, in a flexible and creative manner, to assist them in resolving their problem(s).

What is Grievance Mediation?

It is a process by which the parties to an agreement, with the assistance of a mediator, work towards the resolution of a grievance.

Why consider Grievance Mediation?

There are several reasons why the union and management may want to consider Grievance Mediation.

Attitudes:
Grievance Mediation is designed to alleviate the build-up of negative attitudes which can develop. The earlier Grievance Mediation is utilized, the greater the probability of resolution.

Control:
Grievance Mediation allows the parties themselves to shape the settlement. If the grievance goes to arbitration, the settlement will be imposed.

Privacy:
Grievance Mediation is an attempt to resolve the grievance before the arbitration process is invoked.

Cost:
Arbitration is an expensive process. If the problem can be resolved by the parties prior to arbitration, this expense can be avoided.

Time:
Time delays can lead to serious morale and personnel problems. Grievance Mediation is a method of resolving disputes as close to the source as possible.

The parties should realize:

  • the program is voluntary
  • both parties must agree to assistance
  • the program takes place outside the established norms of the collective bargaining process
  • the resources of the service are available for follow-up sessions if requested by the parties
  • arbitration remains an option if the grievance is still not settled after Grievance Mediation

Issues in Industrial Relations can be both unique and complex. Therefore, Conciliation Services will make available third parties in grievance mediation who have extensive experience in dispute resolution in Labour Relations.

Preventive Mediation

What is Preventive Mediation?

Mediators with Conciliation Services are involved in hundreds of collective bargaining sessions each year. They observe that the cause of many negotiation breakdowns and work stoppages is a poor union-management relationship. As tough as contract issues can be, the difficulty of their resolution will be further complicated if the relationship is characterized by ineffective communications, distrust, and lack of mutual respect.

The day-to-day relationship between union and management rarely gets their regular attention. Rather, it develops as an accumulation of the parties' experiences together and their attitudes to each other. This relationship is all-important, however, when the going gets tough.

The adversary system of collective bargaining does not stop the parties from working together, during the term of the collective agreement, on problems of the workplace that cannot be effectively addressed in the "win/lose" atmosphere of negotiations. In fact, this type of process will likely prevent many small issues from festering into insurmountable ones at contract renewal time.

Preventive Mediation gives assistance to union and management parties who want to build a constructive relationship. The programs are all voluntary and jointly structured. Union and management must share the desire to improve their relationship and be prepared to begin the work necessary to bring about change. Leadership and advice are provided by experienced mediators who are established labour relations neutrals. Preventive Mediation approaches are based on the participation of both union and management. Those who are involved in the relationship are the experts on its shortcomings and are the best equipped to identify and implement appropriate solutions.

There are no "quick fixes" in relationship improvement, so Preventive Mediation programs take place during the term of the collective agreement, allowing time to develop new methods of solving mutual problems.

Since its introduction in 1978, the Preventive Mediation program has been used with success by many parties in virtually every sector of the labour-management community. This success is a credit to the commitment and effort brought to each initiative by the union and management representatives involved.

How does it work?

There are four component programs to Preventive Mediation:

  1. constructing an informal communications forum through the Joint Action Committee concept
  2. learning jointly about relationship skills and techniques in a Supervisor-Steward Training seminar
  3. achieving conflict resolution for workplace disputes through a Workplace Intervention
  4. learning the rights, roles, and responsibilities of the parties through a First Agreement Orientation Program

These programs can be used individually or in combination. The process can be initiated by either party contacting Conciliation Services to request an exploratory meeting. This provides an opportunity to assess whether a program is appropriate and, if so, which course of action is most suitable. Exploratory meetings can be held separately or jointly, and do not commit either union or management to proceeding further. A Preventive Mediation program can only be entered into on the mutual agreement of the parties.

Joint Action Committee

Progress Through Joint Action

Often, the only means of union-management communication during the term of the collective agreement is through the grievance procedure. This procedure is formalized by the contract and is adversarial in nature. The "win/ lose" atmosphere is not designed for resolving other matters of mutual concern. The parties frequently find that unresolved day-to-day problems fester and become critical issues at the bargaining table. Establishment of a Joint Action Committee can help change this.

Some of the symptoms of poor communications between union and management are:

  • an unusually high number of grievances, or repeated grievances on the same issue
  • improper use of the grievance procedure
  • few settlements of grievances in the first stages, or an excessive number of arbitration cases
  • frequent disciplinary actions
  • a large number of demands that reflect a strained relationship between the parties
  • distrust or a lack of respect and credibility between representatives of union and management
  • a general communications breakdown at any or all levels
  • low morale, high turnover, and employee dissatisfaction

Why consider Joint Action?

Today's complex economic climate calls for new efforts by union and management to work co-operatively to make the most productive use of their skills and resources. In addition, employees' work expectations challenge both their union representatives and management to an unprecedented degree.

Many management and union leaders recognize that new approaches are needed to handle mutual problems. Co-operation is essential to create a workplace where employees are challenged and satisfied. Methods must be found that better utilize the skills and insights of employees. A sense of shared purpose is required to increase the effectiveness of the organization.

A Joint Action Committee is an extremely flexible method of addressing these needs. Joint Action is not a substitute for the grievance or negotiation procedures, but it can contribute to making both procedures more effective by finding solutions to matters not served by an adversarial approach.

What's in it for management?

  • An open channel of communication for management to establish a better relationship with the union committee and to communicate with employees through their chosen leaders
  • An opportunity for early discussion of operational problems, planning and scheduling, and other matters that have potential impact on employee work schedules, overtime, layoffs, recalls, temporary transfers, or new job opportunities
  • An opportunity to be responsive to constructive suggestions and valid complaints, thereby demonstrating that management is sincerely interested in improving the work environment and in taking advantage of employee skills and insights
  • A forum to review business conditions, quality problems, product or service development, customer requirements, and other issues that highlight the employees' critical role in the success of the organization

What's in it for the union?

  • An open channel of communication to senior management so as to provide them with better information on membership concerns
  • An opportunity for input to operational problems and management plans that affect work schedules, job assignments, and working conditions
  • An avenue to express employee complaints that lie outside the normal grievance procedure, and an opportunity to resolve minor problems before they become grievances
  • A forum to encourage management to recognize the union as a responsible organization with a constructive role beyond that of simply processing grievances

Some Common Concerns with Joint Action

As valuable as the potential of a Joint Action Committee can be, some parties are reluctant to get involved. Management is sometimes anxious that a Committee might encroach on its right to manage. As well, they feel that such an initiative will require more time off with pay for union members and that it will require further time and attention from management personnel.

On the other hand, union representatives are concerned about the political implications of how their members might view their participation in Joint Action Committee meetings. Union leaders don't want to be charged with getting too cozy with management unless they can make a serious contribution. They don't want to be patronized.

The Joint Action committee method requires sincere people who are willing to give it their best effort. It is a problem-solving approach and does not imply a shifting of, or reduction in, power. Rather, it is simply a better means of communicating and exercising the responsibility of leadership.

Mediator Assistance

Nova Scotia's mediators are committed to helping union and management officials establish and maintain improved relationships. They are in a unique position to provide expert assistance in the formation of a Joint Action Committee. The most essential ingredient of a smoothly functioning committee is the initial planning and organization. It is in this key phase that the mediator's experience and guidance can be most valuable.

Once the parties agree to the establishment of a Joint Action Committee, an organizational meeting is necessary. This meeting requires the involvement of the decision-makers from management and union, since both the composition and the guidelines of the committee will be established at this session.

These guidelines should include statements on:

  • the purpose and commitment of the committee
  • the structure, size, and chairing of the committee (Each party should assign top representatives as permanent members. Provision may also be made for the rotation of "at large" members.)
  • a procedure for the exchange of agenda items prior to each meeting
  • an agreement on the nature of proper agenda items
  • the time, place, duration, and frequency of meetings
  • the method of taking minutes of the meetings
  • the method of minutes distribution
  • payment for time spent in committee meetings
  • other matters unique to the relationship

Careful attention to these questions at the outset will avoid many of the pitfalls a committee can encounter. The assisting mediator will attend the first committee meeting to provide appropriate guidance. After withdrawing from the active involvement, the mediator can be contacted for further consultation if such a need arises.

Obviously, the commitment of the parties is critical to the success of the Joint Action committee. The concept must be supported and understood by everyone affected. With these factors in place, union and management will have created an effective mechanism for consciously managing their relationship.

Supervisor-Steward Training

Joint Training

Frequently, a constructive relationship between senior union and management officials deteriorates because of friction between supervisors and stewards at the workplace.

These difficulties can usually be traced to a misunderstanding of roles and responsibilities and a lack of training in labour relations principles and practice.

Union and management have a mutual interest in ensuring that supervisors and stewards have both the skill and insight to deal with labour relations problems. Joint union-management training is one means of developing these attributes.

Why is training necessary?

Training, despite the best of intentions, is often one of those things put off until later. When a new supervisor is appointed or a bargaining unit member is elected as officer or steward, they are thrust into collective agreement responsibilities for which they may have little or no training. Without some basic understanding of, and skills in, labour relations, the result is often confusion, confrontation, and costly mistakes for both sides - conflict about who is right instead of what is right. Today's unresolved problems become tomorrow's issues in contract negotiations.

Whether these people are new to their respective roles or in their positions for many years, their needs are the same. Labour relations training can contribute to more confidence and to a better understanding between supervisors and stewards in dealing with day-to-day problems in the workplace. The level of this understanding will significantly influence the health of the union-management relationship.

Why have joint union-management training?

Employers and unions conduct educational programs for their respective representatives, but such programs usually focus on the advocacy of their own respective viewpoints. Without attempting to replace these initiatives, our Joint Training program offers an added dimension: front-line representatives (i.e., supervisors and stewards) have the opportunity to share ideas and learn labour relations skills together.

Although supervisors and stewards often find themselves on different sides of an issue, they need the same skills to resolve that issue. The educational experience of learning together is an important first step in breaking down barriers.

What areas does Joint Training cover?

The Joint Training program provides the opportunity for union and management participants to:

  • understand each other's point of view and discover how much they really have in common
  • examine the critical role that attitudes play in determining the nature of the relationship
  • improve problem-solving skills, especially as used in the complaint/ grievance procedure (The program does not attempt to address specific ongoing grievances.)
  • recognize and respect each other's rights, restrictions, and responsibilities
  • refresh basic communication skills

The objective of joint union-management training is to have the participants take the skills and principles learned together in the classroom and put them into practice at the workplace.

How is it presented?

A Joint Training program requires one all-day session during which supervisors and stewards analyze films depicting typical communication and grievance problems, deal with realistic case studies, and discuss labour relations topics. The emphasis is on participation and the sharing of ideas and opinions. The presentation is led by a team of mediators who, because they are on the daily labour relations front line, focus on practical subjects instead of classroom theory. It should be stressed that the aim is directed at skills on which both parties rely; the mediators do not conduct contract interpretation training.

Who can take part?

The focus of Joint Training is the frontline steward-supervisor relationship, but other senior personnel who represent the parties in labour relations matters are encouraged to participate. Sessions are scheduled during the workweek in consultation with both parties so that interference with normal work operations is minimized. Classes may vary in size from 12 to 32 people. Participants are designated by their respective union and management officials and usually are roughly equal in number. In the case of larger bargaining units, it is sometimes appropriate to schedule more than one day so that all potential participants have the opportunity to attend.

Workplace Intervention

Workplace Intervention is a service designed to provide conflict resolution in situations where people who work together and interact on a regular basis are in conflict and require intervention to resolve their dispute to foster a better work environment.

This service, which requires approval from both the employer and the union, requires voluntary participation from the parties. A mediator will work with the parties in an effort to resolve their dispute. This may include developing a Workplace Agreement in which the parties, through the assistance of the mediator, develop a set of ground rules to follow, which will enable them to reduce conflict and maintain a more productive work environment.

First Agreement Orientation

The Nova Scotia Labour Board issues numerous Certification Orders every year. The Trade Union Act requires a Conciliation Officer to "... contact both parties within 14 days of the certification to provide information on the collective bargaining process to assist in the settlement of a first collective agreement." (This does not apply to employers and unions in the construction sector.) The Conciliation Officer will meet with the parties, should the parties so choose, to discuss some or all of the following topics:

Legislation

  • the Trade Union Act
  • the Teachers' Collective Bargaining Act

Collective Bargaining

  • the duty to bargain
  • the process of collective bargaining
  • the content of collective agreements

Conciliation

  • method of appointment of a Conciliator
  • role of the Conciliator
  • First Collective Agreement conciliation

Impasse Issues

  • Conciliation Officer's Report
  • countdown period
  • notice of strike or lockout
  • alternatives to strike or lockout

Relationship Improvement Programs

  • Grievance Mediation
  • Joint Action Committee
  • Joint Supervisor-Steward Training
  • Workplace Intervention

Mediator Consultation

A Word About Costs

The costs of preventive mediation programs are small relative to their potential value. In all cases, there is no charge for mediator services or expenses. Further, Conciliation Services provides all materials and, in Joint Training, the meeting rooms. Joint Action Committee meetings and First Agreement Orientation programs usually take place at the worksite.

In all programs, the employer is expected to pay all participants their normal wages for the time involved. In the Joint Training, the parties are responsible for the cost of coffee breaks and their meals. Not working together costs everybody-union and management alike. Preventive mediation can save both parties time and money, and assist in the development of constructive relationships.

Contact us

Executive Director
Conciliation and Labour Tribunal Division
Nova Scotia Labour and Advanced Education

P.O. Box 697
Halifax, Nova Scotia B3J 2T8

Tel: (902) 424-4156
Fax: (902) 424-5977

Website: www.novascotia.ca/lae/conciliation

Complete Dispute Resolution Guide