NHL lockout shows goodwill gestures could undermine negotiations between parties
After a labour dispute, employers eager to repair relationships with workers should avoid the temptation to give away additional benefits beyond what’s already negotiated, say labour lawyers.
These giveaways might be meant as goodwill gestures to hasten the healing, but they could easily backfire, causing further damage to employee relations and undermining contract talks down the road, the lawyers warn.
An example of such goodwill gestures might be seen in the world of professional hockey. In the days following the 113-day National Hockey League lockout, the NHL team owners decided to improve a benefit fund for retired players. The league upped its contribution to the Senior Player Benefit to $3 million annually, previously $1 million.
The fund, created in the aftermath of the 2004–05 lockout, provides players aged 65 or older with $1,380 annually for each year of service. When the collective bargaining agreement expired in September, the future of the fund was thrown into doubt. For weeks, neither the owners nor the players’ union would commit to keeping the fund going. In December, both sides agreed only that the fund would be sustained for another year in the event that the lockout continued.
Earlier this month, just days after a new collective agreement was ratified, the owners decided unilaterally to increase their contribution. They did it without obtaining a guarantee from the National Hockey League Players’ Association (NHLPA) that it would do the same. “Our board enthusiastically agreed that it was the right thing to do,” NHL commissioner Bill Daly told the Toronto Star. He didn’t frame the decision as a goodwill gesture aimed at either the players or the fans.
For its part, the players’ union does not see the improved benefit as having any bearing on the post-lockout relationship between the players and the league. “The matter is separate from the collective bargaining agreement discussions,” says Jonathan Weatherdon, spokesperson for the NHLPA. “It’s a good thing — a very good thing — but it’s for players who are 65 years or older so it’s not an initiative for the current players.”
Although this NHL benefit improvement isn’t a neat example of a gesture meant to repair relations after a work stoppage, it does demonstrate the risk of making such gestures without consulting the union, says Beth Traynor, a London, Ont.-based management-side employment lawyer and partner with Siskinds LLP.
“The fans may see that as the owners doing a good thing, but the players’ association may look at that and say, ‘Oh, that’s just great. You’re kicking in more, and now we look like schmoes if we don’t put in more as well,’ ” says Traynor.
“I don’t see that as a helpful thing, if the goal is to improve relationship with the players’ association.”
A more common goodwill gesture employers might make is to reverse discipline that was imposed on employees who were accused of some perceived misconduct during the strike or lockout, says Greg McGinnis, a Toronto-based partner at Heenan Blaikie LLP. Another example he sometimes sees is employers giving in on grievances that remained unsettled from before the dispute.
In general, it’s when employers “win” the labour dispute that they’re in a better position to take symbolic measures to help to restore good relations,” adds McGinnis.
“Depending on the nature of the gesture, it may be intended to bolster the union’s credibility — which may have been damaged by the outcome — by providing them with a win,” says McGinnis.
“On the other hand, some unilateral gestures by employers may have the effect of reinforcing the union’s perceived ineffectiveness or irrelevance.”
Giveaways may also have the long-term effect of undermining the negotiation that both sides had just been through, says Brian Smeenk, Toronto-based partner at Fasken Martineau DuMoulin LLP.
On top of making the union look like it didn’t bargain as hard as it could have, “You also make your employees feel they didn’t get everything they could have gotten during negotiation. And that’s the opposite of what you want,” says Smeenk.
“You want them to understand you gave them everything you could have given, and there is no more to be had.”
When it comes down to it, the way to rebuild good relations with workers after a strike or lockout is to focus on building a respectful, trusting workplace, he adds.
“Usually the negotiation takes care of the important financial aspects. I personally don’t think an additional financial gesture buys you much goodwill,” says Smeenk. “I think you obtain goodwill and good relationships day to day, and by how well you treat your employees.”
