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

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Presentation on theme: "Grievances and Arbitration zDescribe the grievance process. zExplain the following arbitral concepts: yStandard of proof yburden of proof yarbitral jurisprudence."— Presentation transcript:

1 Grievances and Arbitration zDescribe the grievance process. zExplain the following arbitral concepts: yStandard of proof yburden of proof yarbitral jurisprudence zDiscuss some of the problems with, and alternatives to, the grievance arbitration process.

2 Grievance - defined zGrievance ya formal complaint over the application, interpretation, or administration of the collective agreement

3 Grievances are: za normal aspect of workplace relations zan outlet for discontent - indicates presence of a workplace problem which requires attention zopportunities to improve relations zhandled through the process outlined in the collective agreement yusually a 3-4 stage process

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

5 Stage 1 zUnion is involved at this stage zGrievance is usually presented to the immediate supervisor zSupervisor investigates, may hold a meeting (with employee and union rep), then provides reply to union within a specified time period zMay allow, partially allow or deny grievance zIf employee/union is not satisfied with supervisor’s response, the grievance may be forwarded to the 2nd stage

6 Stage 2 zinvolves a higher level of management (specified in the collective agreement) zAgain, management investigates, usually hold meetings, then provides response to union within specified time period zIf employee/union not satisfied, may forward grievance to next stage (within specified time period)

7 Stage 3 zFinal stage involves highest level of management zIf union/employee not satisfied, may forward the grievance to arbitration for final, binding resolution z98 % of grievances resolved prior to arbitration

8 Throughout the grievance process: zunion usually carries the grievance (not employee) zTime limits: if union misses, grievance dies. If management misses, union may forward grievance to next level zParties may agree to extend time limits zArbitrators may relieve against time limits in most jurisdictions

9 Three Formal Grievance Types: zIndividual: yeg. Discipline for other than just cause zGroup: yeg. Improper worksite ventilation zUnion/Policy: yeg. Contracting out, absenteeism policy

10 Arbitration zFinal stage of the grievance process zConventional arbitration (single arbitrator or tripartite panel) or expedited arbitration zEach side appoints and pays for own nominee (tripartite panel) zCost of chairperson is shared

11 Arbitration is... zQuasi-judicial process ySworn witnesses; evidence; examination and cross examination; arguments yDecision is final and binding - judicial review of arbitration awards only under exceptional circumstances

12 Standard and Onus of Proof zStandard of Proof yOn the balance of probabilities (more probable than not) zOnus/Burden of Proof yCarried by the grieving party yIn matters of discipline and discharge, initial burden is on grievor to establish the following xexistence of C.L.A.and its coverage of the grievor, xthe fact of employment, xthe act of discipline/discharge x(these facts are not usually in dispute)

13 Reverse Onus zOnce the grievor has established these facts, yonus then shifts to the employer to prove just cause for the discipline or discharge zIf employer satisfactorily demonstrates just cause, yonus shifts to the grievor to raise a defense or establish mitigating circumstances

14 Arbitral Jurisprudence zArbitration awards do not serve as binding precedents yarbitration awards serve as guidance - shape c.a. language and grievance resolutions yPrior, similar, awards have substantial persuasive weight and arbitrators will tend to follow arbitral jurisprudence xespecially where a strong consensus has developed

15 Problems with Conventional Arbitration zArbitration originally intended to be a quick, inexpensive, informal way to resolve mid-term disagreements. However, has become: zvery expensive zprotracted, time consuming ztoo legalistic/formal ztoo adversarial

16 Alternatives to Conventional Arbitration zExpedited Arbitration zGrievance mediation y informal, non-binding, pre-arbitration step zMed/Arb ythird party first tries to mediate conflict. If that fails, will act as arbitrator.

17 Discipline and Discharge Class Objectives zExplain the concept of just cause zExplain the purpose of corrective discipline: ywhen it is appropriate to impose discipline, yhow to select/apply disciplinary sanctions zExplain and apply the following arbitral concepts: yCulminating Incident; yInsubordination; yCompany Rules; yMitigating Factors

18 Just Cause- Arbitration zIn determining whether an employer had just -- or reasonable -- cause for discipline, arbitrators asks/answers: yDid the misconduct occur? xRarely in dispute yDid it warrant discipline? xCulpable/non-Culpable Misconduct yWas the discipline imposed appropriate, given all relevant circumstances and considerations? xMitigating factors, etc.

19 Culpable Misconduct zBehaviour for which the employee is fully responsible and deserving of blame. zthe employee: x knows what is required x is capable of doing what is required xchooses to act in a manner other than as required zDiscipline is an appropriate response ythe employee is responsible for correcting his/her actions and for the consequences of failing to correct conduct.

20 Non-Culpable Misconduct zBehaviour for which the employee is not fully responsible or deserving of blame. The employee y does not know what is requiredOR ythe employee knows what is required but is unable to complyOR ymisconduct is blameless; due to factors beyond employee’s control zDiscipline is NOT an appropriate response ycorrective responsibility with the employee and employer ymust assist the employee improve/correct conduct

21 Progressive/Corrective Discipline zPurposes: yto prompt employee to adopt the appropriate conduct at the worksite yindicate the seriousness with which management views the misconduct yWarn the employee that continued misconduct could result in discharge from employment yNOT intended as punishment. Intention is to have positive results: improved performance

22 Sanctions Available: zWritten reprimand: initial disciplinary sanction yapplied when formal counseling fails or for moderately serious first instance zSuspension: the temporary removal of the employee from the worksite for a definite period (usually without pay). yUsed when lesser sanctions have failed or for a serious first instance zDischarge y“capital punishment”

23 Discharge zthe involuntary termination of employment. zNormally used for a very serious first offense or when the following criteria are fully met: y the offense and employee’s work record indicate s/he no longer fit for employment ylittle likelihood of rehabilitation, and y earlier corrective actions have failed

24 When selecting sanctions consider: zarbitral jurisprudence - LAC’s zseriousness of misconduct relative to the impact on operations zpast record - sanctions are progressive zProgressive: stronger sanctions applied when lesser measures do not eliminate the misconduct

25 Culminating Incident z“The straw that broke the camel’s back” zProvides for a review of employee’s overall record to reach a decision regarding appropriate sanction zEmployee must be aware record exists zOffense that prompts review must be proven and must warrant discipline before record can be introduced

26 Insubordination zThe intentional refusal of an employee to follow the legitimate work-related instructions of the employer. zOne of the most serious disciplinary infractions zStrikes at core of employer’s right to direct and control the workplace zObey now, grieve later zemployer must establish that an order was: yclearly communicated to the employee ygiven by someone with proper authority ydisobeyed

27 Exceptions to the Insubordination Rule zAn employee can refuse to obey employer orders on certain grounds. yendanger the employee’s health or safety yan illegal act yunion official, where the order would result in irreparable harm to the interests of other employees yWhere the order was unreasonable in the circumstances

28 Company Rules zA rule unilaterally introduced by management and not subsequently agreed to by the union, must satisfy the following conditions: yMust not be inconsistent with the c.l.a. yMust not be unreasonable yMust be clear and unequivocal

29 Rules as basis for sanction zMust be brought to the attention of the employee affected before the company can act on it zIf rule is used as basis of discharge: ythe employee concerned must have been notified that a breach of such rule could result in discharge zRule should have been consistently enforced from the time it was introduced zthe rule itself cannot determine the issue facing the arbitrator - question is: was the discharge for just cause?

30 Mitigating Factors zservice of employee zemployment record zisolated incident zprovocation zpremeditation or ‘spur of the moment’ zconsistency of employers actions zseriousness of the offence zeconomic hardship zemployee’s personal circumstances zpersonal benefit of grievor’s actions zunderstands seriousness of actions/likelihood of reoccurance See Craig & Solomon (1996, p.346)

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

32 Strikes defined zFrequency ynumber per year zSize ytotal number of workers involved zDuration/Volume y total number of days lost xoften as a percentage of estimated lost time zNOTE: Statistics include strikes and lock-outs

33 Functions of Strikes: Why do they exist? zWin recognition for a union or win concessions zinformation-generating function yshed light on the issue and allow for more details zMistakes/Accidents yuncertainty of the bargaining process zReflect pent-up unresolved grievances or spontaneous response to particular issue ycathartic event proving a safety value zsolidify the rank and file zestablish reputations for subsequent rounds

34 Theories/Causes of Strikes: What causes a strike? zThree theories xParties base their demands/offers on different factors when offer and demands do not match - strike CPI vs. product prices xAsymmetric 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 xJoint/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 zBusiness Cycle - more strikes in prosperous times zUnemployment -more strikes when low unemployment zWages - Monetary Wage increases reduce strikes-OECD ysome evidence of reverse in Canada zInflation - increased strikes - especially if inflation is unanticipated zReal Wages - generally real wages rise = less strikes ysome evidence of reverse in Canada zProfits - largely inconclusive zTime - generally, holding all other factors constant, more strikes over time.

36 Worker and Community Characterisitics zResource Mobilization Theories yStrikes are more likely when: xunions 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 zStrikes are not rationale ycaused by individual frustration over gap between expectations and economic/social circumstances xresults 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 zResults are unclear yStrikes MAY be more likely to occur when political environment (e.g., Quebec) xfacilitates worker mobilization xand collective action yStrikes may be less likely in political environments where labour is able to influence legislation that benefits labour

39 Union/Mgt Organization Characteristics zStrikes are more likely when: yIntra-organizational conflict is high yInadequate Decision-Making Authority yForeign Ownership/Multinationals yLarger bargaining units and multi-plant bargaining units

40 Negotiator/Bargaining Characteristics zUnion/Management trust/Hostility yhostility and lack of trust increase strike potential zNegotiator skills and experience yskill and experience lessens likelihood of strikes

41 Bargaining History zNarcotic Effect ypast struggles/hostilities will lead to strikes ystrikes become a habit zTeetotaller ypast strikes and negative consequences discourage strikes zEvidence mixed, but suggests teetotaller effect, especially after long/severe strikes

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