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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.