Grievances and Arbitration zDescribe the grievance process. zExplain the following arbitral concepts: yStandard of proof yburden of proof yarbitral jurisprudence.

Grievances and ArbitrationDescribe 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.

Grievance - defined

Grievance a formal complaint over the application,

interpretation, or administration of the collective agreement

Grievances are:

a normal aspect of workplace relationsan outlet for discontent - indicates

presence of a workplace problem which requires attention

opportunities to improve relationshandled through the process outlined in

the collective agreement usually a 3-4 stage process

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

Stage 1

Union is involved at this stageGrievance is usually presented to the

immediate supervisorSupervisor 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 grievanceIf employee/union is not satisfied with

supervisor’s response, the grievance may be forwarded to the 2nd stage

Stage 2involves 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)

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

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 limitsArbitrators may relieve against time limits

in most jurisdictions

Three Formal Grievance Types:

Individual: eg. Discipline for other than just cause

Group: eg. Improper worksite ventilation

Union/Policy: eg. Contracting out, absenteeism policy

Arbitration

Final stage of the grievance processConventional arbitration (single

arbitrator or tripartite panel) or expedited arbitration

Each side appoints and pays for own nominee (tripartite panel)

Cost of chairperson is shared

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

Standard and Onus of ProofStandard 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 followingexistence 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)

Reverse Onus

Once the grievor has established these facts, onus then shifts to the employer to prove

just cause for the discipline or dischargeIf employer satisfactorily demonstrates

just cause, onus shifts to the grievor to raise a

defense or establish mitigating circumstances

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

Problems with Conventional Arbitration

Arbitration originally intended to be a quick, inexpensive, informal way to resolve mid-term disagreements. However, has become:

very expensiveprotracted, time consumingtoo legalistic/formaltoo adversarial

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.

Discipline and DischargeClass ObjectivesExplain the concept of just causeExplain 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

Just Cause- ArbitrationIn 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.

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 requiredchooses to act in a manner other than as

requiredDiscipline is an appropriate response

the employee is responsible for correcting his/her actions and for the consequences of failing to correct conduct.

Non-Culpable MisconductBehaviour 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

employee’s controlDiscipline is NOT an appropriate response

corrective responsibility with the employee and employer

must assist the employee improve/correct conduct

Progressive/Corrective DisciplinePurposes:

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

Sanctions Available:

Written reprimand: initial disciplinary sanction applied when formal counseling fails or for

moderately serious first instanceSuspension: 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 instanceDischarge

“capital punishment”

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 employee’s work record

indicate s/he no longer fit for employment little likelihood of rehabilitation, and earlier corrective actions have failed

When selecting sanctions consider:

arbitral jurisprudence - LAC’sseriousness of misconduct relative to

the impact on operationspast record - sanctions are

progressiveProgressive: stronger sanctions

applied when lesser measures do not eliminate the misconduct

Culminating Incident

“The straw that broke the camel’s back”Provides for a review of employee’s

overall record to reach a decision regarding appropriate sanction

Employee must be aware record existsOffense that prompts review must be

proven and must warrant discipline before record can be introduced

InsubordinationThe intentional refusal of an employee to follow the

legitimate work-related instructions of the employer. One of the most serious disciplinary infractionsStrikes at core of employer’s right to direct and

control the workplaceObey now, grieve lateremployer must establish that an order was:

clearly communicated to the employee given by someone with proper authority disobeyed

Exceptions to the Insubordination RuleAn employee can refuse to obey

employer orders on certain grounds. endanger the employee’s 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

Company RulesA 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

Rules as basis for sanctionMust 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 dischargeRule should have been consistently enforced

from the time it was introducedthe rule itself cannot determine the issue facing

the arbitrator - question is: was the discharge for just cause?

Mitigating Factorsservice of employeeemployment record isolated incidentprovocationpremeditation or

‘spur of the moment’

consistency of employers actions

seriousness of the offence

economic hardshipemployee’s

personal circumstances

personal benefit of grievor’s actions

understands seriousness of actions/likelihood of reoccurance

See Craig & Solomon (1996, p.346)

Strikes, strikes and more strikes...What are the basic functions of strikes?What are the causes and determinants of

strikes?

Strikes definedFrequency

number per yearSize

total number of workers involvedDuration/Volume

total number of days lostoften as a percentage of estimated lost time

NOTE: Statistics include strikes and lock-outs

Functions of Strikes: Why do they exist?

Win recognition for a union or win concessionsinformation-generating function

shed light on the issue and allow for more detailsMistakes/Accidents

uncertainty of the bargaining processReflect pent-up unresolved grievances or

spontaneous response to particular issue cathartic event proving a safety value

solidify the rank and fileestablish reputations for subsequent rounds

Theories/Causes of Strikes:What causes a strike?

Three theoriesParties 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

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.

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

Frustrated Expectations & Collective Action

Strikes are not rationale caused by individual frustration over

gap between expectations and economic/social circumstancesresults 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

Political EnvironmentResults 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

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

Negotiator/Bargaining CharacteristicsUnion/Management trust/Hostility

hostility and lack of trust increase strike potential

Negotiator skills and experience skill and experience lessens likelihood

of strikes

Bargaining HistoryNarcotic Effect

past struggles/hostilities will lead to strikes strikes become a habit

Teetotaller past strikes and negative consequences

discourage strikesEvidence mixed, but suggests teetotaller effect,

especially after long/severe strikes