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Grievances and Arbitration

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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 supervisor’s 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 Discharge Class 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 employee’s 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 employee’s 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 - LAC’s 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 camel’s back”
Provides for a review of employee’s 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 employer’s 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 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

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 economic hardship
employment record isolated incident provocation premeditation or ‘spur of the moment’ consistency of employers actions seriousness of the offence economic hardship employee’s personal circumstances personal benefit of grievor’s 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 Size Duration/Volume
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 Strikes: What 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 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 Teetotaller 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

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