Labour Disruption Contingency Planning Outsource or In-House. Malcolm Smeaton Whitehorse Group Inc.

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1 2015 Labour Disruption Contingency Planning Outsource or In-House Malcolm Smeaton Whitehorse Group Inc. 1

2 TABLE OF CONTENTS LABOUR DISPUTE CONTINGENCY PLANNING 3 LEARN FROM HISTORY 5 SUM OF ITS PARTS 6 OPERATIONS 6 SECURITY 7 LEGAL 7 COMMUNICATIONS 8 TALLY UP 8 OPEN FOR BUSINESS BUT NOT BUSINESS AS USUAL 9 SECURING YOUR BUSINESS 10 LEGAL WARRIORS 12 GET THIS WRONG AND YOU LOSE 13 IMPORTANT BUT DIFFICULT 15 MEASURE TWICE CUT ONCE 15 SUMMARY POINTS 16 PLAIN LANGUAGE GETS YOU WHAT YOU NEED 17 SMALL IS BEAUTIFUL 18 ABOUT WHITEHORSE GROUP 20 CONTACT US WHITEHORSE GROUP INC 2

3 LABOUR DISPUTE CONTINGENCY PLANNING With today s relentless focus on cost control, many unionized organizations do not have staff with the requisite skills and experience to carry out the entire labour dispute contingency planning project when they anticipate the expiration of a collective agreement. Large organizations, including governments, may have dedicated staff responsible for this planning and similar planning for critical events. But having a dedicated contingency planning team on staff for a project which only arises when a collective agreement expires, every two to four years, is a luxury which the vast majority of organizations do not enjoy. Reassigning staff from other projects is always a possibility but what happens to their regular assignments and you may not get the experience required. Can the entire contingency planning project or parts of the project be effectively outsourced? Does it matter which parts of the project you outsource and how should you approach the outsourcing decision? 2015 WHITEHORSE GROUP INC 3

4 Firstly, understand there is always a cost to poor planning, especially for a labour dispute. The primary impact of poor planning will be at the collective bargaining table. Unless company negotiators have a generous mandate or union negotiators have reason not to push for significant gains, the perception or reality of lax planning for a strike can be costly. In order to avoid a strike for which the company is not prepared, or to end a strike quickly, negotiators may have to increase their offer to the union. This leads to higher product/service costs and unhappy customers. Additionally, if there is a perception that the organization was not well prepared and as a result is managing the impact of the strike poorly; customers, suppliers, clients, investors, voters and the general public will form negative views of the organization. This can lead to a loss of market share and a negative impact on the organization s brand. In public sector situations, voters may view political leaders as inept or lacking accountability for public funds. Watch for a drop in share prices or support for the political party. During a poorly executed strike response, the organization s managers and non-bargaining staff may feel the senior management team are not the clever leaders they previously thought. Morale will take a hit. Managers will work long hours during a strike, trying to archive a positive outcome for the organization, if they know the organization was poorly prepared, demoralization sets in. Striking employees will also know if there is chaos within the company during a strike. They may believe they did the right thing by striking, but they don t want to be on strike for an unnecessarily long time. If your management of the strike response is good, employees will pressure their union to get back to the 2015 WHITEHORSE GROUP INC 4

5 bargaining table and make a deal. If the management of the strike by the employer is poor, striking employees will be susceptible to their union s one more day and they ll give in argument. LEARN FROM HISTORY Before you rush into your planning and prior to making key decisions, look at any past experiences you have had as an employer with a strike or lockout. Dig out those after strike reviews and go through them for lessons learned. If you have not had a strike, try to find a colleague within your industry who may be prepared to discuss their experience in planning and managing through a strike. If, of course, you retain an advisor to help you formulate plans, you will select someone with extensive experience. Review your past approaches to resourcing the labour dispute contingency planning project. It may have been up to five years since the project was last undertaken. People move on, retire, change jobs or win a lottery. The organization may have downsized, expanded and simply may not have the resources available for this critical project. If you handled contingency planning in-house previously, is it still a viable option? Or is outsourcing the project a better way to go? I will admit a bias up front. If there is any way you can keep the operational piece of your labour dispute contingency planning project in-house, do so. I realize this may not be practical for every organization, but I believe it will more likely lead to a better result. An in-house team will get better cooperation and support from managers than an unknown outside team. The in-house team will be more efficient and effective in determining which services can be delivered during a labour disruption. There will 2015 WHITEHORSE GROUP INC 5

6 be less likelihood of future negative impacts on union management relations if in-house staff are responsible for the project. And finally, with an in-house project team, the immediate cost outlay will be much less than outsourcing the entire project. SUM OF ITS PARTS If contingency planning resources, with actual strike and/or lockout experience, are not available in-house to deliver the operations planning project, then a strategic outsourcing may be your only alternative. We can identify several broad components or sub projects of any dispute contingency planning project. You may be able to resource some of the project s sub projects but not all. OPERATIONS Most important is the sub-project which looks at how your business operations will be impacted by a strike or lockout. Is the specific bargaining unit of employees threatening strike essential to continued operations of all your production or the provision of services to customers? Are there alternative ways to continue production or services? Developing a plan that meets your operational needs during a strike is the most important part of the project and the other sub-projects will be 2015 WHITEHORSE GROUP INC 6

7 significantly impacted by the planning decisions you make in this area. SECURITY The next sub-project is your security planning for the labour dispute. Protecting your people and your assets is important and is a critical due diligence sub-project of your broader contingency plan. Even if you have security threat assessments from previous events, they will have to be updated. The security plan will be driven by a number of factors. Existing security resources, numbers of facilities, past security incidents during strikes, whether you decide to continue production or services, use of replacement workers etc. Each of these factors and others will be determined in the planning project for business operations. LEGAL Legal will play be important role in your overall planning project. Most companies access legal advice through their commercial law firm, inhouse commercial counsel or labour relations staff with law degrees. In a strike or lockout situation, you should seek legal advice from a labour law firm. You don t have to use the most expensive firm out there. There are many smaller midsize firms which have plenty of injunction or Labour Board related 2015 WHITEHORSE GROUP INC 7

8 experience and will provide you good service at a fair price. Don t be shy about negotiating with a law firm, especially around standby fees. Be prepared to discuss your bargaining goals, plans for continuing operations during the strike and whether replacement workers are part of your planning. COMMUNICATIONS And last but certainly not least important is Communications planning for the strike. If you have in-house services, determine whether they have the experience to handle communications for a strike or lockout situation. If they don t, you may have to find resources outside the organization that can provide your in-house communications people with advice. There is always a lot happening communications wise during a strike, internally, externally, media and of course today we can t forget social media. Make sure all these communications challenges will be covered. Be prepared to tell your story to the media, the union will be certainly telling their story. You do not want to win the strike but lose the communications battle. TALLY UP Now tally up your existing in-house services and determine who is available to work on each sub-project and who will lead the overall project. It is not likely you can assign employees from a different union to work on contingency planning for a strike by another union. Your project leader should be someone managers will accept as a smart choice for the project. This is not a project to give junior staff an 2015 WHITEHORSE GROUP INC 8

9 opportunity to grow. Also, putting the person leading your bargaining team in charge of the project is not usually a good choice. They will be entirely focused on getting a deal with the union and will not have the time. Line up your available resources and decide whether you can adequately staff each sub-project from within. OPEN FOR BUSINESS BUT NOT BUSINESS AS USUAL Resourcing the operations planning project is your most important challenge. Deciding whether all or some of your operation/services continue during a strike is somewhat of a chicken and egg question. If senior management decides operations will continue during a strike, you will need to make it happen. If senior management says market conditions, inventories etc. are such that the organization can reduce or halt production, then you have a more straightforward challenge ahead. While your organization is unique in many ways, contingency planners with solid strike management skills will develop plans which meet your needs. If you decide to outsource the operations planning project look for a firm with strong labour relations and contingency planning expertise. Give them clear instructions that you want them to help you avoid a strike vs. simply accepting that a strike is inevitable. Experienced contingency planners know many ways to discourage anyone thinking that a strike will be quick and effective. Once the operations strike plan is in good shape, then you can look to the other sub-plans WHITEHORSE GROUP INC 9

10 SECURING YOUR BUSINESS Next examine at how you will specifically manage the strike in the field and at the picket line level. Training managers to handle as much of the interaction on the picket line is my preferred approach. Employees on picket lines will usually be respectful of managers that they know and who know them. You will have to bring in security guards if you do not already have robust security in place. Many security guard companies have access to guards who have worked in industrial strike settings, mining and manufacturing usually. Not as many guard companies have guards who are experienced in the public sector strikes. Also be aware that few security guard companies have experienced labour dispute guards available at the drop of a hat. Almost all guard companies will have to borrow/subcontract guards from other companies. If your organization is large, you may have to negotiate a guarding agreement with one guard company who will subcontract to other guard companies. This is a normal business practise in the guarding industry. Security guards can be your greatest cost and if the strike is long, costs can become very high WHITEHORSE GROUP INC 10

11 Violence on picket lines in Canada is rare. Most unions know they will lose public support and the backing of employees who do not support violent activities. Security guards will serve as a deterrent to petty crime, graffiti and make employees working during the strike feel safer. Guards can also be trained to keep notes and prepare reports which can be relied on in Court. Consequently, focusing on training managers, excluded staff and available HR staff to manage picket line relations is an excellent way to reduce security guard costs. Determining how many guards you need at a specific site should not be left solely to the guard company. Use a strike/picket line specific threat assessment (TRA) yourself for each picket line site and present the list of required guards to the guard company for review. If you do ask the guard company to determine the number of guards, ask them to provide the site specific rationale for their recommendations WHITEHORSE GROUP INC 11

12 You may also require a number of licensed investigators to monitor picket lines. Again use a TRA and your past experience to determine the needed resources. Close protection services may be required on an exceptional basis. Outsourcing the services provided by security guards and licensed investigators is an effective way to obtain these services. Examine closely any request from the guard company for non-refundable standby fees, to be paid before a strike is certain. It is acceptable practise in the industry, that once a no board report is issued by the Minister of Labour and you ask the guard company to start assembling their security guard team, there are costs involved and it is fair to provide a reasonable non-refundable retainer. Of course any services including attendance at meetings or pre-strike planning activities you ask the guard company to provide will be at the contracted rates. LEGAL WARRIORS Obtaining experienced legal advice related to a labour dispute is not a difficult challenge even though most employers do not employ labour lawyers on staff. Going to a labour law firm is the 2015 WHITEHORSE GROUP INC 12

13 best approach. Look for a firm that is willing to work to get your business. Ask three or four firms to come and speak with your selection team. Again, do not be shy about discussing hourly rates. The abundance of lawyers makes selecting a law firm largely a buyer s market. While not a deal breaker issue, a firm that has worked with the union counsel for your employees union is somewhat of an asset. Develop a list of interview questions to ask the firm representative when they arrive to pitch for your business. Clearly, you should not have to pay for legal research on standard strike related issues. Also clarify with the firm that you do not wish to pay for the training new lawyers who may accompany senior lawyers, who are just getting their first exposure to strikes and lockouts. If you are a large company, you may decide to retain several firms on a geographic basis to cut down travel costs and gain the benefit of a local firm who knows the local judiciary. The broad legal strategy is something you can provide the firm you retain. Resolving every dispute which arises during a strike by a full blown hearing in Court is expensive. Legal counsel who know the labour law re strikes should be able to resolve most issues with union counsel or the union staff representative. Establish a clear delegation of authority for legal services during the strike. Law firms will prefer to deal with a single client representative. It doesn t have to be your commercial staff lawyer. GET THIS WRONG AND YOU LOSE Next we have communications. Like labour law, most companies no longer have large communication departments. Someone internally coordinates advertising, public relations may be outsourced, social media may be in-house, internal 2015 WHITEHORSE GROUP INC 13

14 communications may be done at a department level e.g. HR stuff by Human Resources, operations stuff by the Operations department. Few organizations have someone on staff who does crisis communications and especially not the daily crises which a strike brings. If you have internal communication resources you may be able to provide some training which allows them to align their existing skills and knowledge to a strike situation. If you do not have internal resources available, then outsourcing this aspect of the project may be your only alternative. Having effectively survived a strike from an operational perspective, you do not want to lose from a communications perspective. Customers leaving, community disappointed, mangers frustrated, returning employees embittered, negative social media and shareholders dumping your stock, can all be avoided with excellent communications planning for a strike. If you decide to outsource the communication sub project, strike communications experience is essential. Insure the person leading the communications team has strike communications experience his/herself. Check references. This is an area when you probably want the communication firm to provide you with a strategy piece once they have done an analysis of your needs. Watch carefully to see if they have a clear strategy to deal with communications with staff still working during the strike. Too often these staff are forgotten in communications planning and end up getting all their info about what is happening during the strike from the union s website. Please avoid this at all costs. Having a person from the communications firm in your strike response center would be an ideal strategy WHITEHORSE GROUP INC 14

15 IMPORTANT BUT DIFFICULT Labour Dispute Contingency planning project components Having explored each of the sub projects of the larger Labour Dispute Contingency Planning project you are now better equipped to decide what your approach will be. A variety of options are available: We summarize them in the chart below. Relative importance to successful overall plan Difficulty to outsource successfully 1 is very important Operational planning 1 1 Security 4 4 Legal 3 3 Communications is very difficult Making the decision on whether and what to outsource is complicated. A variety of factors can be considered. Recent strike experience within your organization, will this be the first strike? Does the bargaining unit reach into key positions within the organization? The size, geography and remoteness of your facilities. Time available, if you are challenged for time, you may need experienced dedicated resources. Capacity, if you simply do not have the resources for a particular sub project, the outsourcing is the only alternative. MEASURE TWICE CUT ONCE Your procurement department will advise whether you can offer a request for proposals (RFP) which covers all components of the broader project including operational planning, security, legal and communications. Proponents should be permitted to bid on all or some of the broad project. Getting strong service providers should be your aim, not just expediency WHITEHORSE GROUP INC 15

16 I recommend that you probably should handle the legal and communication sub projects individually. Law firms will not likely bid on communications work and communication firms will not bid on legal work. This approach better reflects the reality of those services. Operational planning for a strike is clearly a type of business continuity planning. Business continuity planners are familiar with working with other planning activities to meet the organization needs to maintain a certain level of business activity during a critical event such as a strike by employees. Consequently, finding a firm that can assist your existing department managers to fulfill the directions of senior management is the next best strategy to doing operational planning in-house. SUMMARY POINTS In summary, one option for an outsourcing strategy for Labour Dispute Contingency planning may look like this. If you must outsource your operational planning for a strike, previous experience in strike management is an absolute must. Specifically check the project leader s references. Ask to see sample documents, manuals and other training materials. Insure the project leader has managed every one of the main project s sub projects: operations/service delivery planning, security, legal and strike communications. Have a site specific TRA carried out which will provide the rationale for numbers of security guards on day, night and weekend shifts during the strike. Require potential security providers to provide you a detailed description of the training their guards will receive prior to being assigned to strike duty, especially training for non-confrontational response to incidents on picket lines. Determine in advance the broad legal strategy you want your labour law firm to follow. Ask the firm to explain how they will manage their relationship with union counsel. Look for a firm that has a track record of 2015 WHITEHORSE GROUP INC 16

17 success in pursuing injunctions but also a firm that is able to quickly establish a resolution process with the union that is timely and effective. Getting communications right during a strike is paramount. You really can win the strike financially but lose it from a communications perspective. Find a firm which has strike experience or one which demonstrates that their broad experience in managing crisis communications will meet your needs. The firm should recommend media training for your strike response spokesperson and should offer you a comprehensive social media strategy. PLAIN LANGUAGE GETS YOU WHAT YOU NEED Now you are ready to sit down with your procurement advisor. Use plain language. Preparing bid packages is a lot of work, so be specific about what you want. Don t ask for labour relations services during a strike, ask for the specific services you want. When you request security guard services, ask the guard companies to explain how they will arrive at their recommendation for numbers of guards. Ask Communications firms for specific examples of media training programs and employee communications material. When you sit down with law firm sales representatives, ask them to provide you a few examples of strike related Court decisions they were party to. It may require a little preliminary research among colleagues and online, but your RFP should be by invitation only. If you put it out as a wide open public bid, you may get someone requesting the RFP on behalf of the union. You can be sure most large unions are signed up members of every tending service. That membership is one way they can keep track of whether their union members work is going out for tender. If you offer the RFP by invitation only then you will know exactly who may bid. When doing your research for potential RFP invitees, you will find firms that offer services in risk management, human resources, project management, security, law firms, private investigation and labour relations. Check out 2015 WHITEHORSE GROUP INC 17

18 the background of the firm s owners, partners and consultants on their websites. Look for individuals that have contingency planning in their resumes or bios. Your procurement advisor will advise you how many firms will constitute an acceptable field under your procurement rules. A confidentiality agreement should be required of all potential proponents. SMALL IS BEAUTIFUL RFP selection panels work best when they are small. Who should be on the panel besides a procurement person? Consider choosing from the following: An operations senior manager Senior labour relations staff Business continuity staff Communications Facilities manager Security manager A member of your last strike response team Of course you have to follow your procurement rules when you make the decision on which proponents to select, but hopefully you do not have to select based on lowest quoted price. Experience and quality should have a reasonable value. In second stage interviews, ask proponents to bring with them the 2-3 consultants that will be actually working on your project. In summary, look carefully within your organization to determine whether you at least have the people available who have the skills and experience to carry out the operational planning sub project of your overall labour dispute contingency planning project. Strikes are negative incidents, but do what you can to maintain positive messages to both your employees and their union. Learn from your previous experiences with strikes, employing 2015 WHITEHORSE GROUP INC 18

19 exactly the same tactics as you did during the last strike will get you pretty much the same results. Early and professional contingency planning may convince the union that a strike may not achieve significant gains. Important Legal notice: This document is copyright protected. Individual employers may reproduce the document for their own internal use, subject to the following condition. The copyright owner, Whitehorse Group Inc. will grant permission for this document to be reproduced in part or in whole without charge if the user gives notice to [email protected] of their intention to reproduce the document prior to the reproduction of the document. Commercial use or reproduction of the document for publication or any other purpose must be negotiated with the copyright owner WHITEHORSE GROUP INC 19

20 About Whitehorse Group Inc. Whitehorse Group provides advice to clients on variety of Business Continuity, Employee Relations and Security matters. Planning for events such as labour disputes require knowledge and experience in all our areas of expertise. While not an emergency event in the ordinary sense of the word, it is an event that will be disruptive to your normal operations. Malcolm Smeaton ABCP CPP, President and Principal Consultant has many years of experience in preparing for labour disputes. His background includes fifteen years as Director of Contingency Planning for a large government, during which he headed up planning for Royal visits, the G8/G20 meetings, World Youth Day, province wide demonstrations and several major labour disputes. He also established major programs in Business Continuity, Security and Emergency Management. Services provided by Whitehorse Group: Labour Dispute Contingency Planning: Labour dispute contingency planning requires a solid understanding of the impact disputes can have on both operations and collective bargaining. We can deliver labour dispute contingency planning that will protect the organization s future. Our services include: operational/service delivery planning, training, legal coordination, security and communications. Security: Every organization should carry out a complete security assessment prior to engaging security personnel or installing security systems. Whitehorse group consultants can provide comprehensive security assessments that will give your organization the expert advice it needs to establish a security program that protects the organization, its employees and customers. Employee Relations: Our professionals can provide the expert employee relations advice that managers need into order to maintain high levels of productivity from its workforce. When we assist with an employee relation issue our goal is to maintain your workplace with high morale and loyal employees that appreciate their relationship with your organization. Our expertise extends to both unionized and nonunion workplaces in both the public and private sectors 20

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