1. Grievance & Arbitration Primer:
What You Need to Know
Grievance & Arbitration Primer
Mireille Khoraych

2. Agenda
1. Grievance Procedure
a)
b)
c)
d)
e)
Process & Purpose
Preparing for and Managing the Process
Grievance Meetings
Responding to the Grievance
Referral to Arbitration
2. Arbitration
a)
b)
c)
d)
e)
f)
Overview
Preparing for the Hearing
Mediation as an Option
Preliminary Issues
The Hearing – What to Expect
Remedies
3. Questions?
Grievance & Arbitration Training

3. Labour Relations can sometimes feel like…
Grievance & Arbitration Training

4. Grievance & Arbitration Procedures
Meant to help you…
•
Premised on Collective Agreement and applicable Canada
Labour Code provisions
•
Grievance Procedure in Collective Agreement
•
Arbitration
•
Can take several months to several years
Grievance & Arbitration Training

5. 1. a.) Grievance Procedure - Terms
•
CLC requires all Collective Agreements to include a
provision for final settlement of differences between the
parties related to CA (s.57)
•
•
i.e. a grievance and arbitration procedure
Collective Agreement Terms Dictate procedure
•
time limits
•
steps – which level of management
•
procedural requirements (e.g., signed and written grievance,
presence of steward, etc.)
•
type of grievance
Grievance & Arbitration Training
5

6. 1. a.) Grievance Procedure - Terms
•
Types of Grievance
•
Individual
•
Group
•
Union Policy
•
Company
Grievance & Arbitration Training

7. 1. a) Grievance Procedure - Purpose
•
Define Issue(s)
•
Discover & Share Facts
•
Discover & Share Evidence
•
Discover & Share Arguments
•
Opportunity to convince them you are right
•
Assess Importance/Strength of issues raised
•
Find a Solution [i.e. SETTLEMENT]
Grievance & Arbitration Training

8. 1. a.) Grievance Procedure – defining the
issues
•
Scope of grievance – must fall within CA
•
•
Application of CA Language
•
Exercise of rights / authority under CA
•
Propriety of Disciplinary Action
•
•
Meaning of CA Language
Classification/Posting/Lay-off, etc.
Know your CA!
Grievance & Arbitration Training

9. 1. b.) Once the Grievance is Filed –
Managing the Process
•
Prepare in advance of meetings
•
Establish goals – for the case and for the
organization
•
Can goals be achieved through settlement?
•
Is it a case which should go to arbitration?
•
Meaningful process – don’t just go through the
motions
•
Privileged discussions
Grievance & Arbitration Training
9

10. 1. b.) Managing the Grievance Procedure
•
Get the facts
•
•
•
Both from witnesses and documents
Investigate
Document the Facts
•
Notes
•
Paper Trail
•
Secure Key Documents and other Evidence
Grievance & Arbitration Training

11. 1. b.) Managing the Grievance Procedure
•
Check the Facts
•
•
Gather Evidence
•
•
Get written statements
Seek Assistance
Put the Facts to the Employee
•
Note the Employee’s Reaction or Response
Grievance & Arbitration Training

12. 1. b.) Managing the Grievance Procedure
•
Take Action
•
Respond or take action
•
Ensure internal consistency and CA consistency
Grievance & Arbitration Training

13. 1. c.) Grievance Meetings: Tactics and
Strategies
•
Framing the Grievance
•
Complaint must identify issue from CA
•
Factual circumstances should be drawn out
•
Response should be based on the CA
•
Manager’s efforts to address concerns raised may
influence the framing of the Grievance
•
Written Grievance frames dispute for Arbitration
Grievance & Arbitration Training

14. 1. c.) Productive Grievance Meeting
•
Listen
•
Grievor’s opportunity to be heard / explain
•
Investigate the Grievor’s assertions
•
Know your case and probe for helpful
concessions
Grievance & Arbitration Training

15. 1. c.) Productive Grievance Meeting
•
Learn the Union’s theory
•
Ask for copies of Union’s documents or notes
•
Control the meeting – Insist on professional
conduct
•
Union’s job is to convince you
Grievance & Arbitration Training

16. 1. d.) Responding to the Grievance
•
In writing after the meeting
•
Three options:
•
Simple denial
•
Denial and more fulsome explanation
•
Simple denial and verbal explanation
•
But best to tell them WHY
•
Set out and maintain objections
•
If appropriate, offer acceptable resolution
Grievance & Arbitration Training

17. 1. d.) Responding: Objections to Grievance
•
Three Basic Objections
•
•
Improper Form
•
•
Timeliness
Not Covered by CA
Waiver
•
Identify objection immediately and communicate them
immediately
•
Restate Objection in each meeting and response
Grievance & Arbitration Training

18. 1. e.) Referral to Arbitration
•
Look at the timeline
•
1 person vs. 3 person Board of Arbitration
•
Selection of arbitrator
•
Board appointed arbitrator (s.57(4))
Grievance & Arbitration Training
18

19. 1. e.) Bottom Line
•
Read, understand and consistently apply the CA
•
•
easier to defend decision if it complies with the CA
If not sure, check with counsel
Grievance & Arbitration Training
19

20. 2. a.) Arbitration Overview
•
Dispute resolution mechanism created by CA and
CLC
•
Subject matter defined by CA
•
Composition of Board / Arbitrator Defined by CA
•
Final and Binding Resolution
•
Typically the end of a process
Grievance & Arbitration Training

21. 2. a.) Arbitration: The Parties
•
Union and Employer
•
•
no side deals allowed
•
•
not employee and supervisor
Union has carriage of grievance
Cannot “grieve” against another employee
•
e.g., harassment
Grievance & Arbitration Training
21

22. 2. a.) Arbitration: Key Parts in an Arbitration
1.
Investigation of issue raised by grievance (to the
extent it hasn’t already been done)
2.
Preparation
3.
Litigation
Grievance & Arbitration Training

23. 2. b.) Investigation
•
What is the case all about?
•
Gathering facts
•
Interviewing witnesses
•
Getting the documents
•
Visiting the scene
•
Timing of investigation
Grievance & Arbitration Training

24. 2. b.) Investigation: Interviewing Witnesses
•
•
First Steps
Preparation
•
•
•
•
Who’s at the meeting?
•
•
•
•
Make a binder
Make a player’s list
Start your chronology
No “friends” of the witness
Union Rep for bargaining unit witnesses?
Supervisor
Location of meeting
Grievance & Arbitration Training

25. 2. b.) Investigation: Interviewing Witnesses
•
Take good notes
•
Handwritten v. typed
•
Organize the notes
•
by witness
•
Establish rapport – don’t cut to the chase
•
Let them tell the story
•
Be supportive
Grievance & Arbitration Training

26. 2. b.) Investigation: Interviewing Witnesses
•
Don’t let the witness think that the case rests on
his/her shoulders
•
Broaden your fact base
•
Ask open ended questions
•
Go back and get details
Grievance & Arbitration Training

27. 2. b.) Investigation: Interviewing Witnesses
•
Listen more than you talk
•
Pay attention – don’t take calls
•
Evaluate – is this witness helpful?
Grievance & Arbitration Training

28. 2. b.) Investigation: Interviewing Witnesses
•
Different Kinds of Witnesses are required at the
hearing
•
set-up
•
background
•
factual
•
decision maker
Grievance & Arbitration Training

29. 2. b.) The Role of the Union
•
During the Investigation
•
During the Discipline Meeting
•
During the Grievance Procedure
Grievance & Arbitration Training

30. 2. b.) Documents
•
From Employer
•
From the Union / Grievor
•
From a Third Party
•
police
•
customer/citizen
•
health professionals
Grievance & Arbitration Training

31. 2. b.) Documents
•
be careful about opinions
•
stick to the facts
•
includes email correspondence
Grievance & Arbitration Training

32. 2. b.) Scene Preservation
•
If a picture is worth a thousand words, a site visit
is worth ten thousand
•
Pictures
•
Perspective
•
Floor plan
Grievance & Arbitration Training

33. 2. c.) Setting Up The Arbitration
•
Mediation only
•
Mediation/Arbitration
•
Arbitration only
Grievance & Arbitration Training

34. 2. c.) Canada Labour Code, S. 60 (1.2)
(1.2) At any stage of a proceeding before an arbitrator
or arbitration board, the arbitrator or arbitration board
may, if the parties agree, assist the parties in
resolving the differences at issue without prejudice to
the power of the arbitrator or arbitration board to
continue the arbitration with respect to the issues that
have not been resolved.
•
Addressed concerns regarding bias
Grievance & Arbitration Training

35. 2. c.) When is Mediation the Preferred
Option?
•
Relative agreement on facts
•
Need for ongoing relationship
•
Your case is a dead loser
•
You need a 3rd party to tell parties about the weaknesses in
their case
•
You want to discover the other side’s case
•
Privacy
•
Risk of an adverse precedent
•
Your witnesses are weak
Grievance & Arbitration Training

36. 2. c.) When is Arbitration the Preferred
Option?
•
Parties need an interpretation of collective
agreement
•
Resolution is simply not possible
•
Sometimes the parties need to hear the evidence
to really understand their case
Grievance & Arbitration Training

37. 2. c.) The Downside of Mediation
•
Requires some willingness to make compromise
•
Arbitrator may prejudge the case
Grievance & Arbitration Training

38. 2. c.) The Downside of Arbitration
•
Decision-makers are arbitrary
•
Cost and time involved
•
Arbitrators have limited resolution options
Grievance & Arbitration Training

39. 2. c.) Ingredients to Successful Mediation
•
A good mediator
•
The parties are willing
•
The timing is right
•
The client is ready to deal with the issue
•
Is there a relationship of trust?
Grievance & Arbitration Training

40. 2. c.) Preparation is Everything in Mediation
•
Need alignment
•
Need to understand exposure
•
Need to understand other intangibles
•
impact on other employees (morale?)
•
precedent it may set (despite without prejudice or
precedent language)
•
breach of confidentiality clause
Grievance & Arbitration Training

41. 2. c.) The Art of Mediation
•
Should there be an opening statement?
•
Do you recognize the emotion on the other side?
•
Discussions in the hall or in the room with counsel?
•
Be ready for hearing to proceed
•
Need for civility
Grievance & Arbitration Training

42. 2. c.) How Do You Leverage Your
Mediation?
•
Facts are everything
•
A good brief with key documents
•
Be credible
•
If it’s a loser, figure out how you want to lose
•
Focus on interests, not positions
•
Can we offer something they cannot get at
arbitration?
Grievance & Arbitration Training

43. 2. c.) When Do You Not Make A Deal?
•
Always know your best alternative to a negotiated
agreement
Grievance & Arbitration Training

44. 2. c.) Settlement Documents
•
Be precise
•
What if disagreement on terms?
•
Confidentiality
•
Settlement as an award?
•
Set out pre-amble
•
Without prejudice or precedent
Grievance & Arbitration Training

45. 2. d.) Preliminary Issues
•
Referral to Arbitration
•
Timeliness
•
Collective Agreement provisions
•
s. 60 (1.1)
Grievance & Arbitration Training

46. 2. d.) Preliminary Issues
•
Adjournments
•
Consensual
•
Who pays?
•
Contested
•
Reasons for request
Grievance & Arbitration Training

47. 2. d.) Past Practice - Estoppel
•
Importance of past practice
•
Two uses
• Aid to interpretation of ambiguous provision
• Estoppel
Grievance & Arbitration Training

48. 2. d.) Aid to Interpretation
•
Collective agreement provision ambiguous
(capable of more than one meaning)
•
Clear and consistent conduct by one party over
long period of time based on one interpretation
•
Knowledge of that practice and acquiescence to it
by the other party
•
Shared intention of the meaning
Grievance & Arbitration Training

49. 2. d.) Estoppel
•
Doctrine
•
Where one party through words (negotiations) or conduct
(past practice)
•
Makes a representation that they will not rely upon their strict
legal rights (i.e. the clear meaning of the collective agreement)
•
And the other party relies upon that representation to their
detriment (i.e. did not negotiate change to collective
agreement)
•
The first party will be prevented (or estopped) from reverting
to the proper interpretation for the life of the collective
agreement
Grievance & Arbitration Training

50. 2. e.) Type Of Arbitrator
•
Selection of Decision Maker
•
Style and Experience of Decision Maker
•
Availability of other dates for continuation
•
Knowledge of parties
•
Knowledge of the grievor
•
Past history on the topic
Grievance & Arbitration Training

51. 2. e.) Arbitration Overview
•
Arbitration Hearing
•
•
•
•
•
•
•
•
•
•
Arbitrator appointed (CA terms) – parties must agree to jurisdiction
Legal counsel / other representatives
Witness/oath
First hand evidence/hearing
Exclusion of witnesses / grievor remains
Can be time consuming
Opening statements
Evidence through witnesses and documents
Legal argument
Binding and public decision
Grievance & Arbitration Training

52. 2. e.) Arbitration Hearing Tips
•
Ensure that you understand what the union’s position
will be on the issues in consideration
• Preliminary issues
•
Who goes first
•
Who are they going to call as witnesses
•
Are there any documents that they will be relying
upon which they have not given you
•
How long do you think that you will be in opening,
calling each witness, in argument?
Grievance & Arbitration Training

53. 2. e.) Arbitration Hearing Tips
•
Consider an exclusion order
•
Grievor gets to stay as a right
•
Who will you keep as an advisor?
•
If you are going first – then don’t name your first
witness as your advisor
Grievance & Arbitration Training

54. 2. f.) Remedy: What Relief Do You Seek
Tell Arbitrator what you want
•
Discuss grievance
•
Uphold discipline/Employer interpretation of collective
agreement
•
Declaration only
•
Damages, reinstatement, conditions, etc.
•
Remain seized if they award a remedy
•
Remain seized for implementation and interpretation of
decision
Grievance & Arbitration Training

55. 2. f.) Sweating The Details
•
Keep in mind:
•
The objective of the exercise
•
Why your side should win
•
The facts you need to establish to win
•
What evidence is needed to do so
•
How to prove the things you need to prove
•
What legal issues must be resolved to do so
•
What evidence the other side will likely lead and what to
do about it
Grievance & Arbitration Training

56. 2. f.) Best Sources For Arbitration Law
•
Brown & Beatty, Canadian Labour Arbitration
•
Palmer, Collective Agreement Arbitration Canada
•
Labour Arbitration Canada – Mitchnick &
Etherington
•
Labour Arbitration Cases
•
Canadian Labour Arbitration Summaries
Grievance & Arbitration Training

57. 3. Questions
Do you have any?
Grievance & Arbitration Training