labour disruption contingency planning outsource or in-house · if you decide to outsource the...

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2015

Malcolm Smeaton

Whitehorse Group Inc.

Labour Disruption Contingency Planning Outsource or In-House

© 2015 WHITEHORSE GROUP INC 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 21


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?


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


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


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


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, in-

house 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”


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


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.


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.


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.


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


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


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.


IMPORTANT BUT DIFFICULT

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.

Labour Dispute Contingency

planning project components

Relative importance to successful overall

plan

1 is very important

Difficulty to outsource

successfully

1 is very difficult

Operational planning 1 1

Security 4 4

Legal 3 3

Communications 2 2

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.


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


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


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


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.

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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 non-

union workplaces in both the public and private sectors

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