Employer-Employee Meetings and Dealings: When should the union be in the room? When can management go it alone?

It is often difficult to determine which employer-employee interactions require union participation. Can an employer rearrange shifts or allocate overtime without consulting the union? Can the employer unilaterally schedule vacations, take disciplinary actions or issue warnings or reprimands? Should employees have union representation during performance or attendance management meetings? Lancaster’s panel of experts will discuss the scope of union consultation and representation rights. Questions to be discussed include:

• Disciplinary Meetings: When is union representation required at a disciplinary meeting? What is the content of the right? Must an employer advise an employee of the right to union representation? To what extent is the union representative entitled to participate in disciplinary meetings? What can the representative do to protect the employee’s rights? What are the consequences of a failure to allow/ensure the presence of a union adviser? Will disciplinary actions taken without employee representation be void automatically?
• Non-Disciplinary Meetings: Are employees entitled to union representation at non-disciplinary meetings with management (i.e. investigatory, attendance management or performance management meetings)? Where do arbitrators draw the line between non-disciplinary meetings and disciplinary meetings?
• Employers Making Arrangements Directly with Employees: How broad is the prohibition against employers entering into arrangements with employees outside of the collective agreement? Can an individual employee enforce a promise made by the employer directly to the employee? Where the collective agreement allows the employer to award discretionary pay increases or bonuses, can this discretion be used to make “private deals” with select employees?
• Agreements in the Pre-Hiring Stage: Can the employer and an individual employee negotiate work-related terms without the union’s involvement as part of a “pre-employment contract?”
• Arranging Work Allocation: Can an employer assign and vary hours and shifts of work? Can the employer negotiate such changes with employees directly? Can the employer unilaterally establish new hours of work on a permanent basis without the agreement of the union? What about temporarily? How often and to what extent can management assign overtime before the work schedule is so altered that it does not comply with the collective agreement?
• Arranging Vacation Entitlements: Can the employer offer employees a chance to waive vacation entitlements on an individual basis without consulting the union? When will such individualized vacation arrangements be included as part of a management rights clause in a collective agreement?
• Consequences of Making Arrangements Without the Union: When, if ever, will arbitrators uphold private arrangements between employers and individual employees? Will this violate the principle of exclusive union representation or the principle of union recognition?