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ADR in the workplace - an arduous journey.

Every day union and management disagree on many different issues and at times employees and employers engage in workplace conflict. Conflict is a natural part of our day-to-day lives, and the way this conflict is managed and channeled can make or break an organization. Conflict can assist parties to become self-reliant and if handled properly can be instrumental in aiding in self-determination.

The City of Edmonton and its trade unions together ventured into a new form of dispute resolution. This venture was part of a 1998 Human Resources Development Canada (HRDC) program on building and improving workplace relations between well-established trade unions and employers. One of the main aspects of this program was to review all collective agreements and the method of handling grievances for each of the five civic trade unions. Some of the trade unions had inordinate numbers of grievances pending arbitration. Arbitration is a costly and expensive process both in money and time. The time from lodging a grievance to the actual hearing date can be lengthy. This waiting period is difficult if the parties are dealing with a termination grievance, and the terminated employee would appreciate knowing his/her fate. If the arbitrator reinstates the terminated employee with back pay, the employer has lost out on perhaps as much as two years worth of work from that particular employee. This is deemed a windfall for the reinstated employee and a loss for the company.

The arbitration and grievance process is a designed as a win/lose situation. Each of the Civic Unions had a long established process of handling grievances. The disenchanted union member would contact his/her union representative and the union representative would set the grievance wheels in motion. A meeting would be scheduled with the respective supervisor, notes would be taken, and as a rule the affected member would have very little say, or even participation, except for their presence. At each stage of the grievance process, both the union and human resources department would refine the grievance. Exchange of documents and letters of denial for the grievance from different levels of management were kept after each presentation. The union would make a decision on whether to proceed to arbitration or to abandon the grievance. If a decision were made to proceed, the union officials would bundle up the file and take the union member down to union lawyer's office to start the arbitration process. The arbitration process could take as long as twenty-four months before the arbitrator completed the decision.

This grievance process became cumbersome and unmanageable. The grievance method of dealing with workplace issues and conflict became impersonal and detached the individual parties from attempting to resolve the actual issue. It lacked any form of empowerment of the parties and allowed limited accountability for both employee's and supervisor's action in the matter. At no time was any effort or attempt made to address the issues at hand or the root cause of the problem.

The Building of the Alternative Dispute Resolution

After considering all the aforementioned information, the City of Edmonton and its Civic Unions began a serious discussion and examination of how they were handling grievances and arbitration hearings. One Civic Union had a backlog of 68 arbitration hearings with no end in sight. The City of Edmonton with funding from the federal government department Human Resources Development Canada (HRDC) began a process of developing a City of Edmonton custom-designed ADR process.

With a private consultant facilitator, the City of Edmonton Human Resources Department and top union leaders began to review a process of establishing an Alternative Dispute Resolution (ADR) process. Several books have been written on this topic and different ADR models are available. The fundamental and most straight forward form of workplace ADR is the one outlined from the US Department of Labor and this model is called Interest-Based Problem Solving. Whenever a shop steward or union member would inquire about the process, I would give them a copy of this model for it clearly defined the entire objective of our ADR process.

Developing the ADR process in the Collective Agreement

Once general consensus was reached among the parties, the challenge was to place this process into each individual collective agreement. The individual trade unions, department heads, and Human Resources department met to develop the necessary contract language. Countless drafts and meetings were held to develop the appropriate contract language. The process was not written into the main part of the union contract; however, a decision was made to place this agreement as a Letter of Understanding in the respective union collective agreements.

As a union business agent, my major area of concern would be whether the new ADR process would withstand any challenges from a union member for not complying with the Alberta Labour Relations Code {Division 22 (sec. 136) Collective Agreement Arbitration} & {Division 23 (sec. 153 [1]) Duty of Fair Representation}. The Alberta Labour Relation Code requires that all Collective Agreements that come under its jurisdiction have a method of settlement of differences arising from workplace conflict. Therefore the newly negotiated ADR process met the (sec. 136) code requirements.

Every trade union representative's greatest concern when handling a union member's grievance is to fulfill the requirements under the legislation for "Duty of Fair Representation (DFR). The union must never discriminate against any member and must handle all grievances that come before it on a fair and equal basis absent of any individual preference or prejudice. If a union member loses the grievance, one of the first avenues of redress against the union is the utilization of the Labour Relations Board and laying Duty of Fair Representation charges against the union and respective union representatives. If the union and trade union representative acted in a fair and equitable manner and handled the grievance according to the agreed ADR process, the member would not be successful in a DFR challenge against the union.

The preamble to the process was developed so that all workplace conflict was to be handled in a collaborative manner. Collaboration does not mean that the parties are to capitulate on issues in order to maintain work place harmony. This would be highly unproductive and parties would never have their issues addressed or resolved. The most important aspect of the whole process is to develop trust between the union representatives and the first line supervisors.

Preamble

The Dispute Resolution Process is designed to

* Operate from a foundation of trust:

* Encourage open, face-to-face dialogue by the people affected by a dispute;

* Achieve fair, wise, implementable and sustainable solutions;

* Achieve solutions that contribute to positive, collaborative working relationships:

* Achieve solutions that are consistent with the Collective Agreement;

* Minimize the time and cost involved in resolving the disputes.

This was very challenging for both the union and city personnel. A whole new thought process was to be developed with new roles for both sides to be explained and expanded. In the old process, the union representative would do most of the talking and the human resources person would discuss the matter in front of the supervisor and member. Utilizing this new process, the parties in question had to develop a dialogue to attempt to resolve their own dispute.

Problem-Solving Stage

In developing the Problem-Solving Stage, an attempt was made to develop dialogue between the employee and the supervisor to resolve the conflict. In my personal experience, it was always the union that opened the discussion with acceptable alternatives. Some managers are very reluctant to step out of the box and attempt to utilize this process. Many of the grievances and employee conflicts were resolved at the first step. Union members and supervisors are encouraged to discuss the matter without union representatives or human resource personnel.

However, if the employee and supervisor did not achieve a resolution to the conflict, the process would then involve a union and human resources representative. The discussion would include sharing of information that is relevant to the dispute to the fullest extent possible and at the earliest opportunity. The spirit and intent of the process is to have all discussions open and respectful, and to explore options to satisfy the interests and to find mutually acceptable solutions. These discussions are conducted in the utmost of confidentially and without prejudice to the legal or contractual rights of the parties.

Consultation Stage

After a serious review of the union and management concerns, the Consultation Stage of the process was expanded upon to include stronger contract language with the full involvement of the union and the Human Resources department. This became more formal with a letter from the Union requesting the Consultation Stage, to which the City of Edmonton had to respond within ten working days.

In the collective agreement that I was responsible for managing, the City of Edmonton was obligated to send the union copies of all discipline forms and "Notices of Investigation". This allowed the union to maintain active and accurate files of the members. Many supervisors would contact the union requesting to establish a pre-disciplinary consultation. These meetings would be very productive allowing for dialogue to flow between all parties. The process meant that the employee and supervisor would be accountable for resolving the conflict. This was a fundamental change in workplace philosophy and gave a restorative aspect to the alleged culpable workplace misconduct. Again, agreements reached at this stage are confidential and without prejudice to the legal or contractual rights of the parties, and would be confirmed in writing.

Formal Review Stage

If the conflict was not resolved, the grievance was written with specific details of the dispute, including the issues, interests of the grieving party, clause or clauses of the Collective Agreement that are alleged to have been violated, and the desired resolution. The onus is upon the union to have this submitted within five working days at the conclusion of the Consultation Stage. This grievance would be put before the General Manager of the department requesting that the participants seek a mutually acceptable resolution to the dispute.

The participants may continue with the Formal Review Stage for as long as they are mutually satisfied that progress is being made, or may even mutually agree to refer the matter back for further consultation. If agreement is reached at this stage, the agreement is confidential and without prejudice to the legal or contractual rights of the parties and shall be confirmed in writing. If an agreement is not reached, the union has right to take the matter to Arbitration.

Conclusion

The ADR process that the unions and the City of Edmonton entered into did a great deal to improve labour relations and workplace relations between all parties. Workplace discipline was greatly reduced, with fewer suspensions issued and terminations. This does not mean that everyone had all his or her personal issues resolved and everyone worked happily ever after. What did come from the process was better communication and an improved understanding of what supervisors are requesting of their employees. The concept that this was a win-win for all parties slowly came out of the process. A very strong emphasis was placed on Be hard on the problem and soft on the people. With this new workplace attitude, productive workplace change was achieved, and it made me a convert and advocate of this new form of Conflict Resolution.

Changing Approaches

 Traditional Interest-Bases

Starting Point * positions * interests

Strategy * makes gradual adjustments * jointly develop options
 to positions

Solution * defer to the more powerful * identify criteria of an
 or trade compromises acceptable solutions,
 and decide by consensus
Changing Strategies

Traditional Interest-Based

Attack individuals: discredit them Attack the problem. Focus on
to discredit their positions. the issue, not the person
 or the past.

Present your position and your First explore all interests
information supporting it. to define the issue clearly.

Insist on your position. Be open to possibilities,
 opportunities.

Act in your own interest. Help satisfy all interests.

Use power, pressure to get your Mutually define a acceptable
desired solution. solution.



Principles


* Focus on the issue

* Explore all interests

* Be open to possibilities and opportunities

* Satisfy other's interests as well as your own.



* Use consensus to reach an acceptable solution.
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Author:Bastide, Ernest
Publication:LawNow
Date:Feb 1, 2003
Words:2024
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