Chapter 10 Unions and Collective Bargaining

What Are Unions?

A union is a worker-controlled organization formed to advance the interests of its members through collective representation to an employer. Unions exist because workers and employers have different interests in the workplace. In simple terms, on the one hand, employers try to capture as much of the value created by labour that they can in the form of profit. Workers, on the other hand, want to capture that surplus value in the form of better wages and improved working conditions. These differing interests can result in friction and conflict resolved by one or both parties exerting power to get what they want.

As indicated in Chapter 2, employers have significantly more power in the workplace than workers. In practical terms, employers possess most of the power because they have the legal and economic authority to hire and fire workers, determine working conditions, and direct all work that takes place in the workplace. The other reason that power is skewed toward employers is that there is almost always a surplus of workers available. This labour surplus means that there is always another worker to fill a vacancy if another worker quits or is fired. The relative inequality of power can ebb and flow, based on a range of labour market factors (e.g., labour shortages), but the balance of power almost always favours the employer.

Over time, workers have learned that, by combining their efforts (via a union), they can create a counterbalancing source of power. In this way, unions are an expression of workers’ desire to assert their interests. Unions do not balance the power dynamic—employers still hold the legal and economic advantage—but they do offer workers a new avenue by which they can pursue their interests. Unions can increase workers’ power because they speak for and can coordinate the actions of all workers at a workplace. This allows workers to resist an employer’s demands by collectively threatening to withhold their labour when bargaining for improved conditions. If all workers in a workplace stop working (i.e., strike), then the employer pays a significant economic price for not addressing their demands. This threat pressures employers to compromise and accommodate some of the interests of workers. Although negotiations are almost always resolved without a work stoppage, the threat of a strike is what gives unions leverage to bargain for better terms and conditions of employment.

Every union develops its unique structure and internal processes, but all have some features in common. Some unions are stand-alone organizations, representing workers at one workplace. Many unions are affiliated with a provincial, national, or international union. Although unions can be large, and some employ hundreds of staff, at heart they are democratic organizations accountable to their members. Union members elect executives, who handle the day-to-day affairs of the union. All key decisions, including ratifying the collective agreement and deciding whether or not to strike, are made through a vote of the membership.

Workers choose to join unions for a variety of reasons.

• • Economic: If workers believe that their pay, benefits, and working conditions are not adequate, then they might turn to a union to help them negotiate improvements.
• • Fairness: Workers might perceive that the actions of their employer are in some way unfair. They also might believe that the union, through its ability to curtail management discretion, can curb some of that unfairness.
• • Affinity: Some workers enter the workplace with predeveloped perceptions of unions and their effectiveness and/or desirability that create a pre-existing affinity for them. This affinity can emerge from their own experiences (e.g., they or family members were previously union members), or the role of unions might align with their broader political and social worldviews.

In 2022, there were just under 5.2 million union members in Canada, approximately 30% of workers.6 The percentage of workers covered by a collective agreement, sometimes called union density, has remained relatively stable during the past 25 years. Current union density, however, is down from historical highs of approximately 40% in the early 1980s. This situation is in stark contrast with that in the United States, where unionization has been dropping steadily over the past three decades and now stands at only 10.8%.7

There are significant provincial differences in unionization, from a high of 38.8% in Newfoundland and Labrador to a low of 22.9% in Alberta.8 Most union members in Canada are found in the public sector, where 77.0% of workers are represented by a union. In the private sector, only 15.1% of workers are unionized. Industries with higher than average unionization include utilities (65.3%), transportation and warehousing (39.0%), education (72.9%), health care and social assistance (54.0%), and public administration (75.4%). At the low end are agriculture (2.7%), wholesale and retail trade (11.9%), finance (8.7%), and professional and scientific services (4.2%).9

More women are unionized than men (2.7 million versus 2.5 million) because of higher rates of unionization in the public sector, where a higher proportion of women work. Younger workers are less likely to be unionized, as are workers with lower levels of education. Small employers (under 20 employees) are significantly less unionized than large employers (over 500 employees). Workers of colour and immigrants continue to be less unionized than other workers, a factor that contributes to relative pay gaps.10

Labour Relations Legislation

Chapter 2 provided an overview of key elements of employment law in Canada. Labour relations add another set of rules addressing unionization and collective bargaining. For the most part, labour relations law does not replace existing employment legislation but supplements it. Employers still need to comply with occupational health and safety, workers’ compensation, human rights, and other employment law. An exception is dismissal (see Chapter 9), in which common law provisions are not applicable to unionized workplaces. Unionizing also means that individual contracts of employment are replaced by a collective agreement. As the name implies, this contract is negotiated by and between the union and the employer and applies to all workers in the bargaining unit. The collective agreement can be changed only through the agreement of both parties—the union and the employer.

Every province, as well as the federal government, has a labour relations act (LRA). LRAs do not address working conditions. Instead, they establish the rules for how each party will behave when interacting, including allowing or prohibiting certain actions. The specific provisions of the LRA will vary from province to province, but all LRAs address

• • workers’ right to join a union;
• • employers’ obligation to recognize a certified union;
• • the certification process;
• • the bargaining process;
• • dispute resolution processes, including strikes and lockouts;
• • required collective agreement provisions;
• • obligations and prohibited actions for employers and unions; and
• • penalties for violations of the LRA.

The purpose of labour relations law is to establish a playing field (although not a level one) on which the two parties can bargain and rules by which they must abide. The law does not dictate the content of a collective agreement beyond requiring certain minimum provisions, such as a dispute resolution mechanism and payment of dues. Rather, it leaves the parties to fashion a collective agreement that suits them.

LRAs also set up labour relations boards (LRBs), quasi-judicial bodies tasked with interpreting and enforcing the LRAs and resolving disputes between the parties. LRBs have sweeping powers to address issues related to unions’ and employers’ actions. Among other things, LRBs supervise certification and strike votes, hear and rule on complaints related to prohibited actions by a party, and interpret provisions of the act. Orders of LRBs can be enforced by the courts, essentially giving them court-like powers in the area of labour relations.

In the next sections of this chapter, we walk through some of the key provisions of LRAs. Feature Box 10.1 defines some of the key legal terms that we reference.

Unionizing a Workplace

The certification process consists of the steps that workers take to join a union and have that union legally recognized as their bargaining agent. There is usually an informal phase and a formal phase to the process. The informal phase, more commonly referred to as the organizing campaign or drive, is when workers build support for unionizing through a variety of tactics. Organizing campaigns usually begin when a small group of workers agree that their workplace should be represented by a union. These workers usually approach an existing union for assistance in building support for unionization. Sometimes, though, a union might initiate contact with workers identified as interested in unionizing, or a group of workers might form a new union on their own.

The usual next step is to hold a meeting between union representatives and the workers interested in organizing the workplace. This information meeting is usually held off-hours at a location away from the workplace. For the union, the purpose of the meeting is to gauge the level of support among workers for unionizing, assess the prospects of achieving certification, and identify leaders within the workplace. If the union determines that there is sufficient support, then it will form an organizing committee made up of workers in the workplace with support from the union to lead the organizing campaign. This committee will make decisions about campaign strategy and organize the campaign.

At this point, organizing campaigns can take many different directions that depend on the characteristics of the workers and the workplace. Regardless of the different tactics taken, organizing campaigns have one primary task: contacting every worker to discuss the merits of joining the union and persuading the workers to sign a union card (or petition). Most often this contact occurs in one-on-one meetings in workers’ homes or other non-work locations, but it can also include group meetings and other tactics. One of the goals of an organizing campaign is to avoid detection by the employer for as long as possible. Once an employer is aware that workers are organizing, often it will try to dissuade them from joining the union (see Feature Box 10.2).

Organizing approaches that maximize personal contact with individual workers increase the chance of success, especially if more than one strategy is used.11 Incorporating workers from the workplace into the campaign (as opposed to using union staff exclusively), especially in positions of leadership, is also linked to success. Related to this, in successful campaigns, the union is more likely to make it a priority to understand thoroughly the workers’ concerns and clearly communicate its commitment to the workers to address those concerns. Finally, the reaction of the employer to the campaign is also a key factor. Campaigns in which employers learn of them late or do not take any significant action to stop them are more likely to succeed.12

The formal phase begins when the union files an application for certification with the LRB. The application legally informs the LRB (and the employer) that a group of workers wishes to be represented by a trade union. An application must identify the union and employer covered by it, describe the desired bargaining unit, and demonstrate sufficient membership support. That support can be in the form of signed union cards or a petition from workers in the proposed bargaining unit. The number of cards/signatures must meet a minimum threshold of support to be valid. This threshold varies by jurisdiction but ranges between 35% and 45% of the workers in the proposed bargaining unit.

The LRB assesses certification applications to determine whether the bargaining unit is appropriate and whether the union has adequate evidence of member support. Appropriateness requires consideration of whether the workers share a community of interest and would create a viable bargaining unit. The LRB can reject or amend the proposed bargaining unit. Once the unit description is determined, the LRB confirms that the minimum support threshold has been met. If so, then it will order a board-supervised representation vote, a secret ballot yes/no vote asking all workers in the proposed unit whether they support being represented by the union. In some jurisdictions, if the union can demonstrate majority (or supermajority) support, then the LRB issues an automatic certification (sometimes called card-check certification) granting the union the right to represent the bargaining unit without the need for a certification vote.

The period between the ordering of a representation vote and the actual vote is an intense time in an organizing campaign. Typically, both the union and the employer openly campaign to persuade workers to vote for or against the union. Under LRAs, employers have the right to express themselves to workers during this period within certain limitations. The employer can express its opinion on the prospect of a union as long as it does not use coercion, intimidation, threats, or promises or unduly influence workers to act against their beliefs. Unions are also prohibited from engaging in any of those activities. As one might expect, determining when and if an employer or a union has crossed the line can be difficult.

Violating the rules on organizing campaigns is an example of an unfair labour practice (ULP). If a party complains that the other party is engaging in a ULP, then the LRB will hold a hearing. Both sides make their cases and present evidence. The LRB decides whether a ULP occurred and will issue an order that might include imposing a remedy. Remedies can range from issuing a cease-and-desist order (requiring the party to stop doing what it was doing) to ordering a new vote to (in some jurisdictions) granting an automatic certification.

The period between the application and the vote is a risky time for unions and their supporters. Even with the limits imposed by the LRA, employers hold significant power in the workplace, and their actions often create a “chilling effect” among workers concerned about the repercussions of a yes vote. Many employers are aggressive in their efforts to prevent unionization (again see Box 10.2). Research has shown that, the longer the vote is delayed, the more likely the union will lose the vote.13 If a majority of the workers who voted indicate that they support the union, then the LRB will issue a formal certification, and the union will become the legal bargaining agent for the workers in the bargaining unit. At this point, the parties turn their attention to the next step of the labour relations process: collective bargaining.

Collective Bargaining

Once a union is certified, the employer and the union begin negotiations on a collective agreement for the new bargaining unit. Once a collective agreement is signed, it operates for a fixed period. When the agreement expires, the parties renegotiate its terms. The collective bargaining process typically entails a series of stages as set out in Figure 10.1. These stages look the same whether negotiating a first agreement or updating an existing agreement. First agreements tend to be more difficult to negotiate since every provision is new. In contrast, when negotiating changes to an agreement, much of the contract language previously agreed does not need to be reconsidered.

The first stage of bargaining takes place before the parties meet. At the pre-bargaining stage, the parties determine which issues they wish to bargain on and develop an initial set of proposals. They also develop an overall bargaining strategy, establishing the key goals that they wish to achieve and how they will achieve them. In developing the strategy, the parties prioritize the issues to determine which are essential. Identifying one’s bargaining priorities is important because, during negotiations, there will be a need to revise one’s proposals or drop certain proposals to increase the likelihood of achieving the essential goals. Part of the process of establishing proposals includes conducting research to support the demands. Research can include finding economic or financial data, compiling evidence to demonstrate a problem (e.g., the number of workers taking sick days), or polling to assess union members’ opinions.

This is also the stage at which the parties determine who will represent them at the bargaining table. For the employer, the bargaining team usually comprises a handful of managers, possibly representing different sections of the organization, and sometimes representatives from the HR department. There might also be an outside consultant, such as a labour lawyer, to assist the employer. For the union, the bargaining team typically will consist of rank-and-file members, again often representing different groups of workers, assisted by a union staff member with some expertise in bargaining. Both parties need to appoint a lead negotiator, who acts as the chief spokesperson and chair of the team’s meetings.

Although it is common to speak about the union and the employer as if they are monolithic groups, in fact the members of each group will have a range of interests. During the pre-bargaining stage, the parties will engage in intra-organizational bargaining by which they determine their side’s bargaining priorities and issues. Such bargaining tends to be more obvious and involved for the union because of the democratic nature of the organization and the large number of people involved. For example, within a union, younger workers might want a pay increase, whereas older workers might prioritize improvements in the pension plan. The negotiating team needs to balance various interests and perspectives to ensure that the final proposal has legitimacy.

The employer’s side might also engage in some degree of intra-organizational bargaining, but the hierarchical and private nature of most employers means that such bargaining is less obvious and protracted. At this stage, the bargaining team might also work to manage expectations among key constituents about bargaining outcomes by communicating what to expect. Finally, it is common for the parties to meet informally during this stage to establish the protocols and procedures that will govern the bargaining process. Establishing the ground rules early helps the process to proceed more smoothly.

The next stage entails a meeting in which the parties exchange their initial proposals, often called opening offers. Typically, the chief negotiators present their proposals and explain the rationale behind the demands. It is common at this stage for the parties to have widely different proposals, each emphasizing different issues and, on common issues, having divergent positions. The purpose of this stage is to establish the scope of bargaining (i.e., what will be at issue) and the negotiating range (i.e., the outside bounds of what will be bargained). Once the bargaining scope and range are established, each side can re-evaluate its position and adjust its strategy accordingly. At this stage, the negotiators can also start to identify which issues are priorities for the other side, which will also shape the negotiation dynamics.

Once the opening offers are tabled, the two parties enter the third stage of active bargaining. In this stage, they adjust their proposals to make them more palatable to the other side while still holding to their own priorities. This back-and-forth process can appear to be somewhat chaotic as each party attempts to determine where agreement can be found with the other side on each issue being negotiated. This can take the form of discussion and the exchange of proposals on specific issues designed to identify the zone of agreement. That zone is the space where both parties can live with the outcome, even if it is less than ideal.

Figure 10.2 is an example of the zone of agreement. Imagine that the parties are negotiating the basic hourly pay of a group of cleaners. Each party will have an ideal outcome in mind (which might or might not be the same as its opening proposal). Each party will also have a bottom line beyond which it is not prepared to agree. Where each side’s bottom-line overlaps comprises the zone of agreement. In Figure 10.2, the zone of settlement is between $18 and $21 per hour. If there is no overlap, then no settlement is currently possible. As bargaining proceeds and each side considers the consequences of not reaching agreement, unions and employers often adjust their bottom lines, and zones of settlement can appear.

The parties rarely openly communicate their bottom lines. Instead, it is common for them to inch toward a position with which both can live, thereby discovering the zone of agreement. Since there are usually multiple items up for negotiation, teams can also engage in exchanges (“we’ll agree to X if you agree to Y” or “we’ll drop our demands on A if you agree to B”). This behaviour is sometimes referred to as “log rolling.”

This back-and-forth type of bargaining is called distributive, or positional, bargaining. In distributive bargaining, the parties are engaged in a conflict over the distribution of finite resources. They are focused on their own interests and how best to advance them, even if it is at the expense of the other party. This type of bargaining might strike some as adversarial and divisive, and to a degree it is. An alternative form of bargaining attempts to reduce the adversarial aspects. It is called integrative bargaining, commonly referred to as principle-based, interest-based, or mutual-gains bargaining. Feature Box 10.3 discusses integrative bargaining.

Meetings at this stage will alternate between bargaining sessions in which the two parties meet, to make arguments and present counterproposals, and private sessions, sometimes called “caucusing,” in which each party meets independently to discuss strategy and decide how to respond to proposals from the other side. The joint sessions are often “staged” affairs with clear plans and tight scripts, whereas much of the real discussion and work happens in the caucuses. Depending on the complexity of the bargaining and how far apart the parties are, this stage can be completed quickly, over a couple of meetings, or extend across many months. In fact, moving quickly or slowly can be a part of a team’s bargaining strategy since timing can affect issues of bargaining power (see below).

Eventually, the back-and-forth process gets to a point where the parties are confronted with a choice. Either they are able to make some final concessions to find an agreement, or they declare that they have reached an impasse and proceed to a dispute resolution mechanism, either a work stoppage (i.e., a strike and/or lockout) or some form of mediation/arbitration. (We will discuss dispute resolution more fully in the next section.) This can be a difficult choice for each side to make, and the decision will turn on whether the bargaining process sufficiently narrowed the gap between the parties that they are within the zone of agreement regarding the main items of contention. If this is the case, then they will weigh the costs of any alternative to agreement, identify the final items on which they are prepared to change their positions, and find a way to reach a settlement. This process usually involves both parties deciding that an imperfect settlement is preferable to either more bargaining or a dispute.

If one or both parties are not in the zone of agreement, then they will not be willing to make that final calculation. In this case, either one party must move its position to fit within the other’s zone (offering significant concessions that it did not wish to make), or bargaining reaches an impasse, the point at which one party believes, or both of them believe, that further bargaining will not lead to an agreement. In practice, it is often the threat of a strike or lockout (and its associated costs) that leads the parties to shift their positions enough to find a settlement. Often this occurs at the 11th hour when a work stoppage is looming. The calculations that the parties make at the crisis/settlement stage are heavily influenced by their respective bargaining power. Such power is the perceived or actual ability of one party to get the other party to agree to its terms. It affects all stages of collective bargaining but tends to come to the fore at the crisis stage, for this is when the parties need to act in some fashion. Feature Box 10.4 discusses bargaining power in more detail.

The decisions made at the crisis/settlement stage are determined by the parties’ answers to whether the available settlement is better or worse than the likely outcome of proceeding with a dispute and whether the dispute will improve prospects for a more acceptable settlement. Answering these questions requires that the negotiating team has a clear understanding of its own bargaining power and of the other side’s willingness to engage in a dispute. It can be a difficult calculation, and often the stakes are high. It is not surprising that over 90% of all collective agreements in Canada are settled without a strike or lockout.18

The final stage in collective bargaining is formal ratification of the agreement. Under the LRA, both negotiating teams must present the settlement, at this point called a tentative agreement, to their respective organizations for ratification. For the union, this usually means holding a ratification vote of bargaining unit members. For the employer, depending on its structure, ratification might require a vote by the board of directors or simply approval by the head of the organization. If either party rejects the tentative agreement, then the negotiating teams must return to the table to continue negotiations to find an acceptable agreement. If both parties ratify the tentative agreement, then representatives for each side will sign the new collective agreement, bringing it into legal effect.

Dispute Resolution

If the parties are unable to reach a settlement during collective bargaining, then they will turn to a dispute resolution mechanism. There are two types of dispute resolution: (1) having a third party decide any outstanding issues and (2) imposing costs on the other party through a strike or lockout in the hope that it changes its final position and negotiates an end to the dispute.

Using a neutral third party can take three forms.

• • Conciliation sees a third party evaluate the parties’ positions and why resolution is not possible. The third party does not get involved in the bargaining process but merely discusses the impasse with both sides. The conciliator issues a report recommending a possible avenue to settlement. It is often viewed as a first step in resolving an impasse. In many Canadian jurisdictions, conciliation is a mandatory step before strike/lockout action can be taken. However, its recommendations are not binding on the parties.
• • Mediation differs from conciliation by having the neutral third party actively engage in the bargaining process by meeting jointly and separately with the parties and/or observing bargaining sessions. The mediator will recommend possible terms of settlement. These recommendations are not binding on the parties. Usually, mediation is a voluntary process in which one of the parties requests a mediator. In some circumstances, the government can order mediation, and in some jurisdictions it is a mandatory requirement before a strike or lockout. Although a mediator’s recommendations are not binding, they can be persuasive in the process and lead parties to shift their positions.
• • Interest arbitration, like mediation, inserts the third party into the bargaining process. However, unlike a mediator, the arbitrator is empowered to impose some or all of the terms of the settlement between the parties. Arbitration rulings are binding on the parties. They must agree mutually to move to arbitration, although in some circumstances the government will impose it on the parties. Given that the rulings are binding, the stakes are high when parties use arbitration to resolve their dispute.

Some hybrid forms of third-party resolution incorporate elements of the three types. One common one is mediation-arbitration, in which the third party begins the process as a mediator and, if mediation fails, then becomes an arbitrator and chooses the settlement terms.

There are multiple reasons that the parties might select third-party intervention to resolve an impasse. One or both might be unwilling to engage in a labour dispute and see intervention as a way out. More often third parties, especially mediators, are used as a delay tactic or to “corner” the other side through a favourable finding. Arbitration is rarely used voluntarily and then usually when one party has significantly higher bargaining power and the weaker side fears further escalation.

The other dispute resolution method is a work stoppage. A strike occurs when the workers in a bargaining unit refuse to perform all or part of their regular duties or refuse to go to work. A lockout is when the employer refuses workers access to part or all of the workplace so that workers cannot perform their jobs. A key element of the definitions is “part or all.” A strike/lockout need not be a complete cessation of work. Workers who slow down the pace of work or have a “sick-out” (collectively calling in “sick”) and employers who deny workers the opportunity to do aspects of work are both engaging in a work stoppage.

The purpose of a strike or lockout is to increase the pressure on the other side to accept certain proposals by attaching costs to refusing them (i.e., lost profits or wages). In practice, both sides bear economic costs during a strike or lockout, and a resolution is reached when one or both decide that the costs have become too high to justify further action.

Strikes/lockouts are heavily regulated in Canada. They can occur legally only when a collective agreement has expired. Before a strike or lockout takes place, the parties must go through a series of steps. The first step is the mandatory conciliation or mediation discussed above. The second step is that the union must acquire a mandate to strike via a secret ballot strike vote of its members (employers must complete a similar authorization to impose a lockout). If a strike is authorized, then in most jurisdictions the party must give notice of strike or lockout action to the other party (and often the government).

Actions during a strike or lockout are similarly controlled. In most strikes, the workers set up a picket line along which they walk around the perimeter of the workplace usually wearing or carrying signs. The purpose of a picket line is twofold. First, it is to create visibility for the strike, informing the public that there is a dispute happening at the workplace. Second, it is to prevent or slow traffic into and out of the workplace. This second purpose is key to creating economic costs as the striking workers attempt to prevent other workers, managers, deliveries, and needed items from entering or exiting the workplace and thus interfering with production and productivity.

During a work stoppage, pay and benefits are suspended by the employer. The workers instead receive strike pay from the union, aimed at lessening the economic costs to the striking workers. Strike pay is usually a fraction of the workers’ regular pay. In return for strike pay, workers are expected to engage in activities related to the strike, such as taking turns on the picket line or providing other types of support.

One contentious issue during strikes is the use of replacement workers (often called “scabs” by union supporters). Employers often hire new workers during the work stoppage to keep production going and thus lessen the financial impact of the strike. Striking workers often strongly oppose the use of replacement workers. Bringing in replacement workers can result in violence on the picket line, which is why some jurisdictions ban the use of replacement workers.

A strike or lockout continues until the parties can come to an agreement to end the dispute. Most of the time, this occurs when the parties negotiate a settlement, but sometimes workers return to work without a deal in place. There are also times when the government issues a back-to-work order, legislation directing an end to the work stoppage and often determining the terms of the agreement or establishing arbitration. Governments issue back-to-work orders when they believe that public safety or public interest is at risk. Normally, governments use this tool to order an end to public sector strikes or strikes in economically sensitive industries (e.g., rail transport, seaports, mail). Governments have been using back-to-work orders more often recently.19

Not all strikes are legal. Sometimes workers act of their own accord outside the legal processes for strikes. These wildcat strikes are not directed by the union and can occur spontaneously in response to a perceived grievance or injustice. Wildcat strikes are controversial because, though they are illegal, they can also be effective in getting an employer’s attention and causing changes because often an employer is unable to prepare for or cope with such a strike. Sometimes workers who participate in a wildcat strike face penalties in the form of a fine or discipline.

Collective Agreement Terms and Administration

At the conclusion of bargaining, both parties ratify the new collective agreement (generally through a vote). After ratification, the new collective agreement governs the employment relationship. Aside from a few legislative requirements for some form of dispute resolution, a union recognition clause, a no-strike/lockout commitment, and union security provisions (see Feature Box 10.5 for an explanation of union security), the content of a collective agreement is determined by the two parties. The scope of the issues in the agreement and how those issues are resolved vary greatly as a result.

In practice, most collective agreements cover similar issues. These agreements also tend to be long and at times complicated. The reason is the concept of residual rights. They are a function of the legal principle that management’s authority in all work-related matters is intact unless explicitly curtailed in the collective agreement. In other words, if an issue is not addressed in the agreement, then the employer has an unfettered ability to act as it wishes. This incentivizes unions to address as many items in the agreement as possible.

Broadly speaking, clauses in collective agreements can be divided into two groups: substantive rights and procedural rights. Substantive rights tend to focus on the terms and conditions of employment (e.g., wages, benefits). Procedural rights address process and curtail the ability of management to act unilaterally (e.g., setting out procedures for discipline). Feature Box 10.6 lists some common substantive and procedural issues found in collective agreements.

Once the agreement is in force, it must be administered and enforced. In practice, the employer is charged with implementing the agreement (e.g., making required payments, assigning shifts according to seniority). If the employer interprets a clause differently from the union (or simply ignores or contravenes the clause), then a dispute can arise. Every collective agreement contains a process for resolving such disputes. The exact structure of the process will differ according to what the parties negotiate, but all start and end the same way. Dispute resolution is triggered by launching a grievance and, if not resolved earlier, ended by a grievance arbitration decision.

Grievances and Rights Arbitration

A grievance is a formal allegation that one or more clauses of the collective agreement have been violated. Either party can file a grievance, although in practice unions file most grievances since employers have more control over the day-to-day operations of the workplace. Not every action or inaction perceived by one party to be unfair or inappropriate is a ground for a grievance. The offending incident must relate directly to provisions in the collective agreement. There are four general types of grievance, outlined in Feature Box 10.7.

The grievance process begins when a worker, group of workers, or the union makes a complaint about a violation of the agreement to an immediate supervisor or manager. The affected person or group is the griever. The complaint can be oral or written. A shop floor union representative, often called a shop steward, might or might not participate in the filing. The collective agreement will usually specify a timeline for the supervisor to consider and respond to the grievance.

If the grievance is not resolved at that first step, then the union can file a formal grievance. Here the nature of the grievance is formalized in writing, indicating dates, a description of the incident, the names of parties involved (including witnesses), the relevant provisions of the agreement, and the desired remedy. Both parties will conduct their own investigations and meet to discuss the facts and determine whether a resolution is possible.

At this point, grievance procedures can differ widely. Some are streamlined and have only one or two steps, whereas others can have multiple steps for possible resolution, each increasing in formality and level of management. During this process, a couple of concepts are important to remember. First, filing a grievance does not require the employer to change its actions immediately. This reality means that a worker might object to an employer’s decision or direction but need to continue to abide by it until the grievance is resolved. This concept is commonly referred to as work now, grieve later, to reflect the fact that a grievance is a post-incident remedy.

Second, beyond the initial complaint, the grievance is “owned” by the union, not the individual worker. This means that, as the grievance advances through the process, it is the union, usually in consultation with the worker, that decides whether to continue to pursue it or not. The effect is that the union might choose to discontinue a grievance even if the worker is not yet satisfied with the outcome. This right to control the grievance process is balanced by a union’s duty of fair representation, discussed earlier in this chapter, which means that the union must fairly consider the worker’s interests. If the parties exhaust the grievance process stipulated in the collective agreement, then the final step is usually to take the matter to arbitration.

If an issue remains unresolved, then the union usually has the option to advance the grievance to arbitration. Grievance arbitration (sometimes called rights arbitration) entails the appointment of a neutral third party to adjudicate the dispute and render a decision, including any necessary remedy. The arbitrator’s decision becomes binding on both parties. The arbitrator has many of the powers of a judge, including the ability to compel the attendance of witnesses and the production of documents. The arbitration process is quite formal, and often both parties will engage lawyers for assistance. The arbitrator will preside over a hearing at which the parties present their cases, submit evidence, and examine witnesses. The arbitrator will consider the evidence, refer to jurisprudence (i.e., previous arbitration awards and court decisions relevant to the grievance), and render a decision. The award will outline the facts, explain the arbitrator’s decision, and, when required, identify a remedy and instructions for implementing it. The award can be released many weeks or months after the hearing. Arbitrator awards can be appealed only to the courts (called a judicial review) for a narrow range of reasons, typically an error of fact or law.

Given their formality, arbitrations are expensive and time consuming. The parties normally split the costs of the arbitrator in addition to paying for their own legal and staff representation. Hearings are often scheduled many months (and occasionally years) after the initial incident and can last many days in complicated cases. The highly legal nature of the process also excludes rank-and-file workers, requiring reliance on lawyers and trained professionals. Given these shortcomings, many have criticized arbitrations for not effectively addressing workers’ concerns and for sapping unions and employers of resources that could be used elsewhere. For these reasons, some unions and employers have agreed to alternatives to traditional arbitration to reduce delays and costs. Feature Box 10.8 summarizes some alternatives.

Impacts of Unions

Opinions about unions are often strongly held and mixed. Many people perceive unions as unnecessary intrusions into the employment relationship, interfering with the management of an organization. They also fear that unionization will drive up labour costs and make it harder for managers to manage. A commonly articulated fear is that unions protect “lazy” workers. Yet many people recognize that a union acts as an important countervailing force to management’s power and control in the workplace. They also believe that improving wages and working conditions for workers is good for society and the economy.

The reality is that most people do not know much about unions. Unions are in the public eye only during confrontations or disputes, giving most people a distorted sense of what they do. There are many misconceptions about what happens when an organization is unionized. For example, unions cannot protect so-called lazy workers from legitimate management of their performance. All that unions can negotiate is a process for discipline ensuring that all workers are treated fairly. If a worker performs poorly and the employer follows the proper process of discipline, then there is little that the union can do to prevent termination.

So let us spend a bit of time looking at the impacts of unions. Research confirms that unions, on average, do increase wages and benefits. Unionized workers in Canada earn approximately $5 more per hour than non-unionized workers ($28.87 to $23.57).20 For women, this advantage increases to $7 per hour. The union effect on wages is also stronger for workers of colour and vulnerable workers.21 Overall, unions tend to make wage structures more equitable in workplaces, bringing up lower incomes to shrink the difference between top and bottom. Economic benefits to workers extend beyond union members. International research has shown that higher levels of unionization are associated with lower levels of inequality and low pay (they pull up the lowest-paid workers).22 It has also found that union density leads to smaller gender and racial pay gaps.23

The union effect on non-wage benefits (e.g., health benefits, pensions) is even stronger. Unionized workers are more than 50% more likely to have medical and dental coverage than non-unionized workers.24 One of the biggest differences is in pension coverage. A large majority of unionized workers have pension plans (and most of them are defined-benefit pensions) compared with fewer than one-third of non-unionized workers.25 Unionized workers have more job stability and security, in part a factor of their disproportionate presence in the public sector and among large employers. Unions also tend to make workplaces safer. Although unionized workplaces are subject to more safety complaints and inspections, overall injury rates and severity are lower.26 Most researchers attribute this effect to unions’ capacity to educate and train workers on their safety rights.

What about their impacts on business? Although unionization does seem to affect employers’ profits negatively, much of that effect is countered by lower turnover and higher productivity at unionized firms. Unions also increase employers’ potential labour pool by compelling higher-quality working conditions attractive to job seekers.27 Unionized organizations are no more likely to close or go bankrupt than non-unionized employers.28 In terms of broader economic impacts, there is no statistical relationship between levels of unionization and economic and employment performance in advanced industrial countries.29 Overall, unions can win tangible gains both for their members and for other workers. They do affect employers’ profits but provide other secondary benefits that can outweigh those costs.

Conclusion

As WestJet experienced, the presence of a union in a workplace can profoundly change an organization’s approach to human resources. New sets of rules come into play, and the employer has to deal with an additional party when addressing employment issues. Many employers, as WestJet did, chafe at the prospect of unionization and work to prevent it. From the perspective of HR management, unionization changes the dynamics of managing workers, but unionization itself can be well managed by HR practitioners. Much of the animosity and conflict that can emerge with unionization stems from an employer’s reluctance to build a respectful relationship with the union. Understanding the structures and processes of labour relations and navigating those processes in good faith can go a long way toward ensuring that the presence of a union can be a net positive, even for the employer.