1. INDUSTRIAL RELATIONS IN CANADA Fiona A. E. McQuarrie
Prepared by:
Tom Barrett

2. The Grievance Arbitration Process
C h a p t e r 11
The Grievance Arbitration Process

3. Opening Vignette:Breast-feeding ruling gives mom her job back
A Calgary mother who was fired when her employer wouldn’t let her breast-feed at work has won a 16-month fight to get her job back
An arbitrator has ruled Carewest Cross Bow, a continuing care facility, engaged in a form of sex discrimination when it fired Doris DeGagne
The company fired DeGagne, then 32, after refusing to make accommodations for her to breast-feed on the job, or alternatively, to extend maternity leave by six months

4. Chapter 11 Objectives
At the end of this chapter you should be able to:
Discuss and give examples of different types of grievances
Describe the grievance procedure
Define the duty of fair representation
Distinguish between different standards of proof in arbitration
Describe the purpose and role of an arbitrator
Explain alternatives to the arbitration process

5. The Grievance Arbitration Process
Even the best negotiators find it difficult to create a perfect collective agreement
Strikes and lockouts are prohibited while a collective agreement is in effect
There needs to be another way to settle disagreements about the interpretation, application, or administration of an agreement
Such disagreements are known as grievances and are settled by grievance arbitration
If both parties are satisfied with the outcome of a grievance procedure, that positive relationship can affect how the parties interact in other ways, including during bargaining

6. The Grievance Arbitration Process
If the union and the employer experience conflict in dealing with grievances and come to distrust or dislike each other, this negative relationship can make other forms of interaction more adversarial and less productive
Grievance arbitration is also referred to as rights arbitration to distinguish it from interest arbitration
Interest arbitration determines the terms and conditions of the collective agreement itself

7. The Grievance Arbitration Process
Rights arbitration is concerned with the rights of the employer, the individual, and the union that arise from the interpretation, application, or administration of the collective agreement; these rights include:
The right of the employee to be treated fairly by the employer
The right of the employer to exercise control over its operations
The right of the union to act as the representative of the employees

8. The Grievance in the Workplace
Definition of a Grievance
The term “grievance” is used to describe an alleged violation of one or more of the terms of the collective agreement
Not every complaint arising in an employment relationship is considered a grievance
From a union’s perspective, a grievance occurs when the employer violates the collective agreement by either taking or failing to take a specific action
It is far more common for a union to file a grievance against an employer

9. Types of Grievances
There are four general types of workplace grievances:
Individual Grievance
If an action taken or not taken by the employer specifically affects an individual employee, the resulting grievance is called an individual grievance; discipline is a common cause of individual grievances
Group Grievance
If the action of the employer affects a number of employees in the same manner, then a group grievance may be filed

10. Types of Grievances Types of grievances (cont’d) Continuing Grievance
Grievances involving an ongoing practice are called continuing grievances
Policy Grievance
A policy grievance is filed by a union on behalf of all employees, alleging that an employer’s action or lack of action is a violation of the collective agreement that affects all employees
Grievances are also classified according to which part of collective agreement is allegedly violated

11. Timeliness of a Grievance
Grievance commences when the affected individual or group knows, or ought to reasonably know, that an action (or lack of action) violates the collective agreement
It is the responsibility of employees to notify their union immediately when they believe that the agreement has been violated
Problems may arise if the party filing a grievance has failed to identify when the grievance occurred

12. Filing the Grievance: Step One
The first step of the grievance process is the filing of a complaint about a violation of the collective agreement
An individual, a group of employees, or the union on behalf of all employees can file a complaint
The person or party initiating the grievance is referred to as the grievor
The grievance is usually submitted, orally or in writing, either to the immediate supervisor of the area where the violation is alleged to have occurred or to the human resources department

13. Filing the Grievance: Step One
In most situations, the employee is expected to “grieve, then work”—i.e., continue regular work
The only generally recognized exceptions to this rule are cases where the alleged violation puts the employee in a physically dangerous situation
Most grievance procedures include time limits for each step in the procedure—usually 10 to 14 days
If the matter is not resolved during the time limit, the grievance automatically proceeds to the next step
Time limits can be waived by mutual consent

14. Formal Complaint and Investigation: Step Two
After a formal written grievance has been submitted, the union and employer investigate the facts surrounding the grievance
Once the investigations are complete, the shop steward or grievance committee meets with management
Both sides present their evidence, along with a recounting of the first two steps of the procedure
After discussing the evidence, the parties attempt to reach a mutually satisfactory solution

15. The Final Attempt Before Arbitration: Step Three
The union business agent, along with the representative of the local union, meets with senior management representatives
This is the last opportunity for the union and management to resolve the issue and to control the outcome without input from a third party
Failure to reach a satisfactory settlement at this step, leads to the option of arbitration

16. The Final Attempt Before Arbitration: Step Three
The union may have to decide whether the grievance justifies proceeding to arbitration
If the union chooses not to proceed to arbitration and decides to abandon the grievance, it may be subject to a complaint from one or more of its members that it has abandoned its duty of fair representation
The labour relations board will decide whether to accept or reject such a complaint
If it accepts the complaint, the board will investigate, and if warranted, hold a hearing

17. Preparing for a Grievance Arbitration
If the grievance is not settled by the end of step three, the grievance may proceed to arbitration
Grievance arbitration is designed to bring a final and conclusive resolution
Arbitration is the only step where the union and the employer can have a decision imposed on them by a neutral third party

18. Appointment of an Arbitrator
The initial selection of an individual arbitrator or an arbitration panel is left up to the parties
Because of the importance of mutual agreement, grievance arbitration is sometimes referred to as consensual adjudication
The primary method of investigating the grievance is through a hearing, which the arbitrator presides over much like a judge
The arbitrator’s decision is binding
There are, however, limited circumstances under which an arbitrator’s award can be appealed

19. Arranging an Arbitration Hearing
Most hearings are held near the location of the employer in a neutral facility, such as a hotel meeting room—it is important the location be perceived as neutral
Costs of an Arbitration Hearing
The union and employer each pay their own costs for the hearing
The average cost per side for a one-day hearing has been estimated at $15,000

20. The Arbitration Hearing
Preliminary Issues
At the start of the hearing, the arbitrator confirms that both parties agree that he or she has jurisdiction under the collective agreement to hear the issue in dispute and to determine an award
This confirmation establishes that both parties accept the arbitrator’s jurisdiction and authority
This question is crucial, because under Canadian labour law the arbitrator is empowered to rule only on whether an interpretation, application, or administration of the collective agreement is correct

21. Standard of Proof
The standard of proof used in arbitration is the balance of probabilities—the same as in civil proceedings
The party alleging violation must prove “on balance” that its version of the facts or events is true
This is a more liberal standard than the standard of beyond a reasonable doubt which is used in criminal proceedings
The standard of clear and cogent evidence is usually used in offences such as theft of company property
It requires sufficient relevant evidence to convince an arbitrator that grievance is or is not justified

22. Order of Proceeding The party proceeding first calls its witnesses
The party calling a witness to the
stand has the first opportunity to ask
questions, this is known as direct examination
It is intended to allow the party to present its case through the witness’s statements

23. Order of Proceeding
When direct examination has concluded, the witness is cross-examined by the other party
When cross-examination has concluded, the party that originally called the witness has a limited right of re-examination
During re-examination, the party is allowed to ask its witness further questions to clarify any point raised during cross-examination or any information not anticipated during direct examination
The procedure of examination, cross-examination, and re-examination is repeated for each witness

24. Order of Proceeding The arbitrator may also question witnesses
During examinations, the witnesses may be asked to present physical evidence such as letters, memos, or personnel records
Once all the evidence has been presented and all the witnesses have testified, the first party makes a closing statement
The second party then makes its closing argument
The first party has a limited right of reply
The arbitrator then formally adjourns the hearing

25. Creating the Arbitration Award
After the hearing is adjourned, the arbitrator retires to write the arbitration award
Some collective agreements prescribe time limits within which the arbitration award must be written
The award will usually contain:
A summary of the evidence
The arbitrator’s assessment of evidence
The arbitrator’s verdict, with the reasons
The arbitrator’s prescribed remedy if the grievance is found to be legitimate
Any direction for implementation of remedy (e.g., a deadline by which the remedy must be carried out)

26. Creating the Arbitration Award
When the arbitration award is completed, it is sent to the union and the employer
When it is received, the grievance arbitration process formally concludes
Arbitration awards are designed to be final and binding on union, its members, and employer
It is possible to appeal an arbitration award; if an appeal is permitted, it is heard in civil court
Canadian labour legislation restricts the use of this process so as to reinforce the provision that the arbitration award is the final resolution of the grievance

27. Creating the Arbitration Award
Appeals may be permitted if one or both of the parties can show that:
The arbitrator was biased in some fashion
The arbitrator did not follow correct procedure while conducting the hearing
The arbitrator ruled on unrelated matters or on matters outside his or her jurisdiction
The arbitrator fundamentally misunderstood or misinterpreted the collective agreement

28. Creating the Arbitration Award
Successful appeal of an arbitrator’s award is rare
A simple disagreement with the award is not grounds for appeal
The possibility that the parties will be disappointed is countered by the fact that arbitration at least resolves the grievance—something the parties could not do themselves
The party alleging an arbitrator error must produce fairly substantial and convincing evidence
If a party does not comply with the award, the award may be filed in the provincial court registry and enforced as if it were a court decision

29. Problems with the Traditional Grievance Arbitration Process
Speed of the process
The intent of the grievance arbitration process is to resolve workplace issues in a timely manner
In reality, from the time a grievance is first filed until an arbitration award is finally issued, grievances filed in Canadian jurisdictions can take up to one year to be resolved

30. Speed of the Process There are a number of factors behind the delays:
Only a few well-known and busy arbitrators conduct most arbitration cases
It is often difficult to arrange hearing dates
Highly complex and legalistic issues can lengthen the process
Selection of an arbitrator may take time when legal counsel is involved and when the arbitration board is selected
The board may take longer to reach a decision
The arbitrator must spend considerable time writing the decision

31. Formality and Legality of the Process
Grievance arbitration was designed to be informal
However, it is usually adversarial as unions and employers have different and conflicting interests and each side usually retains lawyers
Involvement of lawyers – and most arbitrators are also lawyers – introduces unintended formality and legalism
Formalizing the process provides consistency, rigour, and fairness
However, this formality may intimidate witnesses
It is questionable whether having a lawyer ensures that a party is better represented

32. Formality and Legality of the Process
The arbitration award itself is often lengthy and written with a view to furthering labour relations policy; consequently, it is legalistic and results in one party winning and the other losing
Legalistic arbitration decisions can have a negative impact on the labour-management relationship since the parties may not understand the discussion in the award or agree with its reasoning

33. Cost-Effectiveness of the Process
Involvement of lawyers also increases costs
The expenses involved in the process can discourage parties from pursuing valid grievances that could be resolved through arbitration
If one party knows that dealing with a grievance will hurt the other party financially, that party may be tempted to file as many grievances as possible, regardless of their merit

34. The Grievance Arbitration Process
Despite these problems, the grievance arbitration process continues to play a major role in the Canadian labour relations system
However, some jurisdictions are attempting to develop processes that complement or replace the grievance arbitration process
These alternative processes can either be imposed by legislation or agreed to by the parties in negotiations

35. Alternatives to the Traditional Grievance Arbitration Process
Expedited Arbitration
Designed to be faster, less expensive, less formal, and less legalistic than traditional arbitration process
Expedited arbitration processes are created by legislation known as statutory expedited arbitration processes
In jurisdictions where expedited arbitration is not provided by legislation, parties to a grievance can use expedited arbitration to resolve the grievance if both accept its use
Expedited arbitration processes that are voluntarily adopted by the parties are known as consensual expedited arbitration processes

36. Expedited Arbitration
In most Canadian jurisdictions, either the union or management can refer grievance to expedited arbitration
Where parties have agreed to establish expedited arbitration, the process usually includes a clear definition of which types of grievances will be handled in this manner
Expedited arbitration relies on specified timelines for holding an arbitration hearing and issuing the award
Most expedited arbitration processes involve a roster system for appointing arbitrators

37. Expedited Arbitration
Arbitration awards issued in expedited arbitrations are usually not considered to be precedent setting—e.g., the parties will not quote the award to support their arguments in other grievances
As a result, awards in expedited arbitrations are shorter, more fact based, and less legalistic
In most expedited arbitrations, the parties are encouraged to do without legal counsel, which reduces costs

38. Grievance Mediation
Another alternative to the traditional grievance arbitration process is grievance mediation
The mediator is often an industrial relations officer or settlement officer employed by the labour relations board
The mediator meets with the parties within 5 to 10 days of appointment to inquire into the grievance and to help the parties settle their differences
Grievance mediation is timely, cost-efficient, informal, and non-adversarial

39. Grievance Mediation
It may help the parties develop effective long-term relations by emphasizing mutual problem solving
The focus is on reaching a mutually acceptable agreement, rather than winning a rights dispute
The employer and the union must be willing to work actively toward a mutually beneficial solution rather than being concerned with who wins and who loses
The information disclosed to the mediator is considered confidential
Because the mediator does not act as an arbitrator and thus does not make a formal decision, grievance mediation does not require a written award

40. Grievance Mediation
Different mediators bring different philosophical approaches to grievance mediation
One approach, the settlement orientation, is often found in situations where grievance mediation is imposed by legislation
Transformative orientation focuses on teaching parties to resolve their own disagreements and to understand each other’s point of view
Transformative orientation results in higher satisfaction with the mediated result but is often more time-consuming

41. Mediation-Arbitration
Another alternative is a combination of mediation and arbitration known as mediation-arbitration, or med-arb
In most jurisdictions, med-arb utilizes arbitrators skilled in dispute resolution techniques
The third party first acts as mediator and, in an informal setting, attempts to assist parties in resolving their differences
If there are outstanding issues, the third party arbitrates these issues and writes an arbitration award

42. Mediation-Arbitration
Med-arb attempts to combine the advantages of the systems of grievance-mediation and grievance-arbitration
If mediation is not successful in resolving all the disputed issues, the parties have a timely and cost-effective method of reaching a final and binding resolution in the form of an arbitration award

43. Copyright
Copyright © 2002 John Wiley & Sons Canada, Ltd. All rights reserved. Reproduction or translation of this work beyond that permitted by CANCOPY (Canadian Reprography Collective) is unlawful. Request for further information should be addressed to the Permissions Department, John Wiley & Sons Canada, Ltd. The purchaser may make back-up copies for his / her own use only and not for distribution or resale. The author and the publisher assume no responsibility for errors, omissions, or damages, caused by the use of these programs or from the use of the information contained herein.