Presentation on theme: "Grievances and Arbitration"— Presentation transcript:
1 Grievances and Arbitration Describe the grievance process.Explain the following arbitral concepts:Standard of proofburden of proofarbitral jurisprudenceDiscuss 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 attentionopportunities to improve relationshandled through the process outlined in the collective agreementusually a 3-4 stage process
4 Pre-grievance stageemployee 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 supervisorSupervisor investigates, may hold a meeting (with employee and union rep), then provides reply to union within a specified time periodMay allow, partially allow or deny grievanceIf employee/union is not satisfied with supervisor’s response, the grievance may be forwarded to the 2nd stage
6 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 periodIf 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 resolution98 % 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 levelParties may agree to extend time limitsArbitrators may relieve against time limits in most jurisdictions
9 Three Formal Grievance Types: Individual:eg. Discipline for other than just causeGroup:eg. Improper worksite ventilationUnion/Policy:eg. Contracting out, absenteeism policy
10 Arbitration Final stage of the grievance process Conventional arbitration (single arbitrator or tripartite panel) or expedited arbitrationEach 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; argumentsDecision is final and binding - judicial review of arbitration awards only under exceptional circumstances
12 Standard and Onus of Proof Standard of ProofOn the balance of probabilities (more probable than not)Onus/Burden of ProofCarried by the grieving partyIn 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)
13 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
14 Arbitral Jurisprudence Arbitration awards do not serve as binding precedentsarbitration awards serve as guidance - shape c.a. language and grievance resolutionsPrior, similar, awards have substantial persuasive weight and arbitrators will tend to follow arbitral jurisprudenceespecially 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 expensiveprotracted, time consumingtoo legalistic/formaltoo adversarial
16 Alternatives to Conventional Arbitration Expedited ArbitrationGrievance mediationinformal, non-binding, pre-arbitration stepMed/Arbthird party first tries to mediate conflict. If that fails, will act as arbitrator.
17 Discipline and Discharge Class Objectives Explain the concept of just causeExplain the purpose of corrective discipline:when it is appropriate to impose discipline,how to select/apply disciplinary sanctionsExplain 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 disputeDid it warrant discipline?Culpable/non-Culpable MisconductWas the discipline imposed appropriate, given all relevant circumstances and considerations?Mitigating factors, etc.
19 Culpable MisconductBehaviour for which the employee is fully responsible and deserving of blame.the employee:knows what is requiredis capable of doing what is requiredchooses to act in a manner other than as requiredDiscipline is an appropriate responsethe 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 employeedoes not know what is required ORthe employee knows what is required but is unable to comply ORmisconduct is blameless; due to factors beyond employee’s controlDiscipline is NOT an appropriate responsecorrective responsibility with the employee and employermust assist the employee improve/correct conduct
21 Progressive/Corrective Discipline Purposes:to prompt employee to adopt the appropriate conduct at the worksiteindicate the seriousness with which management views the misconductWarn the employee that continued misconduct could result in discharge from employmentNOT 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 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”
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 employee’s work record indicate s/he no longer fit for employmentlittle likelihood of rehabilitation, andearlier corrective actions have failed
24 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
25 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 sanctionEmployee must be aware record existsOffense that prompts review must be proven and must warrant discipline before record can be introduced
26 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 employeegiven by someone with proper authoritydisobeyed
27 Exceptions to the Insubordination Rule An employee can refuse to obey employer orders on certain grounds.endanger the employee’s health or safetyan illegal actunion official, where the order would result in irreparable harm to the interests of other employeesWhere the order was unreasonable in the circumstances
28 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 unreasonableMust 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 itIf 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?
30 Mitigating Factors service of employee economic hardship employment recordisolated incidentprovocationpremeditation or ‘spur of the moment’consistency of employers actionsseriousness of the offenceeconomic hardshipemployee’s personal circumstancespersonal benefit of grievor’s actionsunderstands seriousness of actions/likelihood of reoccuranceSee 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 Size Duration/Volume number per yearSizetotal number of workers involvedDuration/Volumetotal number of days lostoften as a percentage of estimated lost timeNOTE: Statistics include strikes and lock-outs
33 Functions of Strikes: Why do they exist? Win recognition for a union or win concessionsinformation-generating functionshed light on the issue and allow for more detailsMistakes/Accidentsuncertainty of the bargaining processReflect pent-up unresolved grievances or spontaneous response to particular issuecathartic event proving a safety valuesolidify the rank and fileestablish reputations for subsequent rounds
34 Theories/Causes of Strikes: What causes a strike? Three theoriesParties base their demands/offers on different factorswhen offer and demands do not match - strikeCPI vs. product pricesAsymmetric Informationstrikes serve to elicit information from employerstrike prevents “bluffing”firm will endure strike only if a situation is so adverse that losing revenue is less costly than a high wage settlementJoint/Total Coststrikes are less likely when they are costly relative to other mechanism that can serve the same purposecost to BOTH parties is key here
35 Economic Causes Business Cycle - more strikes in prosperous times Unemployment -more strikes when low unemploymentWages - Monetary Wage increases reduce strikes-OECDsome evidence of reverse in CanadaInflation - increased strikes - especially if inflation is unanticipatedReal Wages - generally real wages rise = less strikesProfits - largely inconclusiveTime - generally, holding all other factors constant, more strikes over time.
36 Worker and Community Characterisitics Resource Mobilization TheoriesStrikes are more likely when:unions have strength/resources to mobilize workers into collective actionmanufacturing oriented and unionized citiesmale dominated labour force and industriesplant sizealienation of workers
37 Frustrated Expectations & Collective Action Strikes are not rationalecaused by individual frustration over gap between expectations and economic/social circumstancesresults in collective actionstrikes more common wherelack of progressive management practiceslack of autonomyunion leaders under pressure to be militantlarge operations that create alienation
38 Political Environment Results are unclearStrikes MAY be more likely to occur when political environment (e.g., Quebec)facilitates worker mobilizationand collective actionStrikes 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 highInadequate Decision-Making AuthorityForeign Ownership/MultinationalsLarger bargaining units and multi-plant bargaining units
40 Negotiator/Bargaining Characteristics Union/Management trust/Hostilityhostility and lack of trust increase strike potentialNegotiator skills and experienceskill and experience lessens likelihood of strikes
41 Bargaining History Teetotaller Narcotic Effect past struggles/hostilities will lead to strikesstrikes become a habitTeetotallerpast strikes and negative consequences discourage strikesEvidence mixed, but suggests teetotaller effect, especially after long/severe strikes