grievances and arbitration zdescribe the grievance process. zexplain the following arbitral...
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Grievances and ArbitrationDescribe 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.
Grievance - defined
Grievance a formal complaint over the application,
interpretation, or administration of the collective agreement
Grievances are:
a normal aspect of workplace relationsan outlet for discontent - indicates
presence of a workplace problem which requires attention
opportunities to improve relationshandled through the process outlined in
the collective agreement usually a 3-4 stage process
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
Stage 1
Union is involved at this stageGrievance 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 period
May allow, partially allow or deny grievanceIf employee/union is not satisfied with
supervisor’s response, the grievance may be forwarded to the 2nd stage
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 period
If employee/union not satisfied, may forward grievance to next stage (within specified time period)
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
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 limitsArbitrators may relieve against time limits
in most jurisdictions
Three Formal Grievance Types:
Individual: eg. Discipline for other than just cause
Group: eg. Improper worksite ventilation
Union/Policy: eg. Contracting out, absenteeism policy
Arbitration
Final stage of the grievance processConventional arbitration (single
arbitrator or tripartite panel) or expedited arbitration
Each side appoints and pays for own nominee (tripartite panel)
Cost of chairperson is shared
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
Standard and Onus of ProofStandard 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 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)
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
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
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
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.
Discipline and DischargeClass ObjectivesExplain the concept of just causeExplain 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
Just Cause- ArbitrationIn 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.
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 requiredchooses to act in a manner other than as
requiredDiscipline is an appropriate response
the employee is responsible for correcting his/her actions and for the consequences of failing to correct conduct.
Non-Culpable MisconductBehaviour 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 controlDiscipline is NOT an appropriate response
corrective responsibility with the employee and employer
must assist the employee improve/correct conduct
Progressive/Corrective DisciplinePurposes:
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
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”
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
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
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 existsOffense that prompts review must be
proven and must warrant discipline before record can be introduced
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 employee given by someone with proper authority disobeyed
Exceptions to the Insubordination RuleAn 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
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 unreasonable Must be clear and unequivocal
Rules as basis for sanctionMust 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 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?
Mitigating Factorsservice of employeeemployment record isolated incidentprovocationpremeditation or
‘spur of the moment’
consistency of employers actions
seriousness of the offence
economic hardshipemployee’s
personal circumstances
personal benefit of grievor’s actions
understands seriousness of actions/likelihood of reoccurance
See Craig & Solomon (1996, p.346)
Strikes, strikes and more strikes...What are the basic functions of strikes?What are the causes and determinants of
strikes?
Strikes definedFrequency
number per yearSize
total number of workers involvedDuration/Volume
total number of days lostoften as a percentage of estimated lost time
NOTE: Statistics include strikes and lock-outs
Functions of Strikes: Why do they exist?
Win recognition for a union or win concessionsinformation-generating function
shed light on the issue and allow for more detailsMistakes/Accidents
uncertainty of the bargaining processReflect pent-up unresolved grievances or
spontaneous response to particular issue cathartic event proving a safety value
solidify the rank and fileestablish reputations for subsequent rounds
Theories/Causes of Strikes:What causes a strike?
Three theoriesParties 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
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
some evidence of reverse in Canada Profits - largely inconclusive Time - generally, holding all other factors constant, more
strikes over time.
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
Frustrated Expectations & Collective Action
Strikes are not rationale caused by individual frustration over
gap between expectations and economic/social circumstancesresults 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
Political EnvironmentResults 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
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
Negotiator/Bargaining CharacteristicsUnion/Management trust/Hostility
hostility and lack of trust increase strike potential
Negotiator skills and experience skill and experience lessens likelihood
of strikes
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