Grievances and Arbitration

1
Grievances and Arbitration

• Describe the grievance process.
• Explain the following arbitral concepts
• Standard of proof
• burden of proof
• arbitral jurisprudence
• Discuss some of the problems with, and
  alternatives to, the grievance arbitration
  process.

2
Grievance - defined

• Grievance
• a formal complaint over the application,
  interpretation, or administration of the
  collective agreement

3
Grievances are

• a normal aspect of workplace relations
• an outlet for discontent - indicates presence of
  a workplace problem which requires attention
• opportunities to improve relations
• handled through the process outlined in the
  collective agreement
• usually a 3-4 stage process

4
Pre-grievance stage

• employee attempts to resolve the problem with
  immediate supervisor (union may or may not be
  involved)
• If employee is unable to resolve the problem on
  an informal basis, she/he may file a formal,
  written grievance

5
Stage 1

• Union is involved at this stage
• Grievance is usually presented to the immediate
  supervisor
• Supervisor investigates, may hold a meeting (with
  employee and union rep), then provides reply to
  union within a specified time period
• May allow, partially allow or deny grievance
• If employee/union is not satisfied with
  supervisors response, the grievance may be
  forwarded to the 2nd stage

6
Stage 2

• involves a higher level of management (specified
  in the collective agreement)
• Again, management investigates, usually hold
  meetings, then provides response to union within
  specified time period
• If employee/union not satisfied, may forward
  grievance to next stage (within specified time
  period)

7
Stage 3

• Final stage involves highest level of management
• If union/employee not satisfied, may forward the
  grievance to arbitration for final, binding
  resolution
• 98 of grievances resolved prior to arbitration

8
Throughout the grievance process

• union usually carries the grievance (not
  employee)
• Time limits if union misses, grievance dies. If
  management misses, union may forward grievance to
  next level
• Parties may agree to extend time limits
• Arbitrators may relieve against time limits in
  most jurisdictions

9
Three Formal Grievance Types

• Individual
• eg. Discipline for other than just cause
• Group
• eg. Improper worksite ventilation
• Union/Policy
• eg. Contracting out, absenteeism policy

10
Arbitration

• Final stage of the grievance process
• Conventional arbitration (single arbitrator or
  tripartite panel) or expedited arbitration
• Each side appoints and pays for own nominee
  (tripartite panel)
• Cost of chairperson is shared

11
Arbitration is...

• Quasi-judicial process
• Sworn witnesses evidence examination and cross
  examination arguments
• Decision is final and binding - judicial review
  of arbitration awards only under exceptional
  circumstances

12
Standard and Onus of Proof

• Standard of Proof
• On the balance of probabilities (more probable
  than not)
• Onus/Burden of Proof
• Carried by the grieving party
• In matters of discipline and discharge, initial
  burden is on grievor to establish the following
• existence of C.L.A.and its coverage of the
  grievor,
• the fact of employment,
• the act of discipline/discharge
• (these facts are not usually in dispute)

13
Reverse Onus

• Once the grievor has established these facts,
• onus then shifts to the employer to prove just
  cause for the discipline or discharge
• If employer satisfactorily demonstrates just
  cause,
• onus shifts to the grievor to raise a defense or
  establish mitigating circumstances

14
Arbitral Jurisprudence

• Arbitration awards do not serve as binding
  precedents
• arbitration awards serve as guidance - shape c.a.
  language and grievance resolutions
• Prior, similar, awards have substantial
  persuasive weight and arbitrators will tend to
  follow arbitral jurisprudence
• especially where a strong consensus has developed

15
Problems with Conventional Arbitration

• Arbitration originally intended to be a quick,
  inexpensive, informal way to resolve mid-term
  disagreements. However, has become
• very expensive
• protracted, time consuming
• too legalistic/formal
• too adversarial

16
Alternatives to Conventional Arbitration

• Expedited Arbitration
• Grievance mediation
• informal, non-binding, pre-arbitration step
• Med/Arb
• third party first tries to mediate conflict. If
  that fails, will act as arbitrator.

17
Discipline and DischargeClass Objectives

• Explain the concept of just cause
• Explain the purpose of corrective discipline
• when it is appropriate to impose discipline,
• how to select/apply disciplinary sanctions
• Explain and apply the following arbitral
  concepts
• Culminating Incident
• Insubordination
• Company Rules
• Mitigating Factors

18
Just Cause- Arbitration

• In determining whether an employer had just -- or
  reasonable -- cause for discipline, arbitrators
  asks/answers
• Did the misconduct occur?
• Rarely in dispute
• Did it warrant discipline?
• Culpable/non-Culpable Misconduct
• Was the discipline imposed appropriate, given all
  relevant circumstances and considerations?
• Mitigating factors, etc.

19
Culpable Misconduct

• Behaviour for which the employee is fully
  responsible and deserving of blame.
• the employee
• knows what is required
• is capable of doing what is required
• chooses to act in a manner other than as required
• Discipline is an appropriate response
• the employee is responsible for correcting
  his/her actions and for the consequences of
  failing to correct conduct.

20
Non-Culpable Misconduct

• Behaviour for which the employee is not fully
  responsible or deserving of blame. The employee
• does not know what is required OR
• the employee knows what is required but is unable
  to comply OR
• misconduct is blameless due to factors beyond
  employees control
• Discipline is NOT an appropriate response
• corrective responsibility with the employee and
  employer
• must assist the employee improve/correct conduct

21
Progressive/Corrective Discipline

• Purposes
• to prompt employee to adopt the appropriate
  conduct at the worksite
• indicate the seriousness with which management
  views the misconduct
• Warn the employee that continued misconduct could
  result in discharge from employment
• NOT intended as punishment. Intention is to have
  positive results improved performance

22
Sanctions Available

• Written reprimand initial disciplinary sanction
• applied when formal counseling fails or for
  moderately serious first instance
• Suspension the temporary removal of the employee
  from the worksite for a definite period (usually
  without pay).
• Used when lesser sanctions have failed or for a
  serious first instance
• Discharge
• capital punishment

23
Discharge

• the involuntary termination of employment.
• Normally used for a very serious first offense or
  when the following criteria are fully met
• the offense and employees work record indicate
  s/he no longer fit for employment
• little likelihood of rehabilitation, and
• earlier corrective actions have failed

24
When selecting sanctions consider

• arbitral jurisprudence - LACs
• seriousness of misconduct relative to the impact
  on operations
• past record - sanctions are progressive
• Progressive stronger sanctions applied when
  lesser measures do not eliminate the misconduct

25
Culminating Incident

• The straw that broke the camels back
• Provides for a review of employees overall
  record to reach a decision regarding appropriate
  sanction
• Employee must be aware record exists
• Offense that prompts review must be proven and
  must warrant discipline before record can be
  introduced

26
Insubordination

• The intentional refusal of an employee to follow
  the legitimate work-related instructions of the
  employer.
• One of the most serious disciplinary infractions
• Strikes at core of employers right to direct and
  control the workplace
• Obey now, grieve later
• employer must establish that an order was
• clearly communicated to the employee
• given by someone with proper authority
• disobeyed

27
Exceptions to the Insubordination Rule

• An employee can refuse to obey employer orders on
  certain grounds.
• endanger the employees health or safety
• an illegal act
• union official, where the order would result in
  irreparable harm to the interests of other
  employees
• Where the order was unreasonable in the
  circumstances

28
Company Rules

• A rule unilaterally introduced by management and
  not subsequently agreed to by the union, must
  satisfy the following conditions
• Must not be inconsistent with the c.l.a.
• Must not be unreasonable
• Must be clear and unequivocal

29
Rules as basis for sanction

• Must be brought to the attention of the employee
  affected before the company can act on it
• If rule is used as basis of discharge
• the employee concerned must have been notified
  that a breach of such rule could result in
  discharge
• Rule should have been consistently enforced from
  the time it was introduced
• the rule itself cannot determine the issue facing
  the arbitrator - question is was the discharge
  for just cause?

30
Mitigating Factors

• service of employee
• employment record
• isolated incident
• provocation
• premeditation or spur of the moment
• consistency of employers actions
• seriousness of the offence

• economic hardship
• employees personal circumstances
• personal benefit of grievors actions
• understands seriousness of actions/likelihood of
  reoccurance

See Craig Solomon (1996, p.346)
31
Strikes, strikes and more strikes...

• What are the basic functions of strikes?
• What are the causes and determinants of strikes?

32
Strikes defined

• Frequency
• number per year
• Size
• total number of workers involved
• Duration/Volume
• total number of days lost
• often as a percentage of estimated lost time
• NOTE Statistics include strikes and lock-outs

33
Functions of Strikes Why do they exist?

• Win recognition for a union or win concessions
• information-generating function
• shed light on the issue and allow for more
  details
• Mistakes/Accidents
• uncertainty of the bargaining process
• Reflect pent-up unresolved grievances or
  spontaneous response to particular issue
• cathartic event proving a safety value
• solidify the rank and file
• establish reputations for subsequent rounds

34
Theories/Causes of StrikesWhat causes a strike?

• Three theories
• Parties base their demands/offers on different
  factors
• when offer and demands do not match - strike
• CPI vs. product prices
• Asymmetric Information
• strikes serve to elicit information from employer
• strike prevents bluffing
• firm will endure strike only if a situation is so
  adverse that losing revenue is less costly than a
  high wage settlement
• Joint/Total Cost
• strikes are less likely when they are costly
  relative to other mechanism that can serve the
  same purpose
• cost to BOTH parties is key here

35
Economic Causes

• Business Cycle - more strikes in prosperous times
• Unemployment -more strikes when low unemployment
• Wages - Monetary Wage increases reduce
  strikes-OECD
• some evidence of reverse in Canada
• Inflation - increased strikes - especially if
  inflation is unanticipated
• Real Wages - generally real wages rise less
  strikes
• some evidence of reverse in Canada
• Profits - largely inconclusive
• Time - generally, holding all other factors
  constant, more strikes over time.

36
Worker and Community Characterisitics

• Resource Mobilization Theories
• Strikes are more likely when
• unions have strength/resources to mobilize
  workers into collective action
• manufacturing oriented and unionized cities
• male dominated labour force and industries
• plant size
• alienation of workers

37
Frustrated Expectations Collective Action

• Strikes are not rationale
• caused by individual frustration over gap between
  expectations and economic/social circumstances
• results in collective action
• strikes more common where
• lack of progressive management practices
• lack of autonomy
• union leaders under pressure to be militant
• large operations that create alienation

38
Political Environment

• Results are unclear
• Strikes MAY be more likely to occur when
  political environment (e.g., Quebec)
• facilitates worker mobilization
• and collective action
• Strikes may be less likely in political
  environments where labour is able to influence
  legislation that benefits labour

39
Union/Mgt Organization Characteristics

• Strikes are more likely when
• Intra-organizational conflict is high
• Inadequate Decision-Making Authority
• Foreign Ownership/Multinationals
• Larger bargaining units and multi-plant
  bargaining units

40
Negotiator/Bargaining Characteristics

• Union/Management trust/Hostility
• hostility and lack of trust increase strike
  potential
• Negotiator skills and experience
• skill and experience lessens likelihood of strikes

41
Bargaining History

• Narcotic Effect
• past struggles/hostilities will lead to strikes
• strikes become a habit
• Teetotaller
• past strikes and negative consequences discourage
  strikes
• Evidence mixed, but suggests teetotaller effect,
  especially after long/severe strikes