Grievance & Arbitration Primer: What You Need to Know - July 18, 2013

Grievance & Arbitration Primer:

What You Need to Know

Grievance & Arbitration Primer

Mireille Khoraych

Grievance & Arbitration Training

Agenda

1. Grievance Procedure

a) Process & Purpose

b) Preparing for and Managing the Process

c) Grievance Meetings

d) Responding to the Grievance

e) Referral to Arbitration

2. Arbitration

a) Overview

b) Preparing for the Hearing

c) Mediation as an Option

d) Preliminary Issues

e) The Hearing – What to Expect

f) Remedies

3. Questions?


Labour Relations can sometimes feel like…


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


1. a.) Grievance Procedure - Terms

• Types of Grievance

• Individual

• Group

• Union Policy

• Company


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]


1. a.) Grievance Procedure – defining the

issues

• Scope of grievance – must fall within CA

• Meaning of CA Language

• Application of CA Language

• Exercise of rights / authority under CA

• Propriety of Disciplinary Action

• Classification/Posting/Lay-off, etc.

• Know your CA!


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


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



• Check the Facts

• Get written statements

• Gather Evidence

• Seek Assistance

• Put the Facts to the Employee

• Note the Employee’s Reaction or Response



• Take Action

• Respond or take action

• Ensure internal consistency and CA consistency


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


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


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


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


1. d.) Responding: Objections to Grievance

• Three Basic Objections

• Timeliness

• Improper Form

• Not Covered by CA

• Waiver

• Identify objection immediately and communicate them

immediately

• Restate Objection in each meeting and response


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))


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


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


2. a.) Arbitration: The Parties

• Union and Employer

• not employee and supervisor

• no side deals allowed

• Union has carriage of grievance

• Cannot “grieve” against another employee

• e.g., harassment


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


2. b.) Investigation

• What is the case all about?

• Gathering facts

• Interviewing witnesses

• Getting the documents

• Visiting the scene

• Timing of investigation


2. b.) Investigation: Interviewing Witnesses

• First Steps

• Preparation

• Make a binder

• Make a player’s list

• Start your chronology

• Who’s at the meeting?

• No “friends” of the witness

• Union Rep for bargaining unit witnesses?

• Supervisor

• Location of meeting



• 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



• 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



• Listen more than you talk

• Pay attention – don’t take calls

• Evaluate – is this witness helpful?



• Different Kinds of Witnesses are required at the

hearing

• set-up

• background

• factual

• decision maker


2. b.) The Role of the Union

• During the Investigation

• During the Discipline Meeting

• During the Grievance Procedure


2. b.) Documents

• From Employer

• From the Union / Grievor

• From a Third Party

• police

• customer/citizen

• health professionals


2. b.) Documents

• be careful about opinions

• stick to the facts

• includes email correspondence


2. b.) Scene Preservation

• If a picture is worth a thousand words, a site visit

is worth ten thousand

• Pictures

• Perspective

• Floor plan


2. c.) Setting Up The Arbitration

• Mediation only

• Mediation/Arbitration

• Arbitration only


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


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


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


2. c.) The Downside of Mediation

• Requires some willingness to make compromise

• Arbitrator may prejudge the case


2. c.) The Downside of Arbitration

• Decision-makers are arbitrary

• Cost and time involved

• Arbitrators have limited resolution options


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?


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


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


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?


2. c.) When Do You Not Make A Deal?

• Always know your best alternative to a negotiated

agreement


2. c.) Settlement Documents

• Be precise

• What if disagreement on terms?

• Confidentiality

• Settlement as an award?

• Set out pre-amble

• Without prejudice or precedent


2. d.) Preliminary Issues

• Referral to Arbitration

• Timeliness

• Collective Agreement provisions

• s. 60 (1.1)


2. d.) Preliminary Issues

• Adjournments

• Consensual

• Who pays?

• Contested

• Reasons for request


2. d.) Past Practice - Estoppel

• Importance of past practice

• Two uses

• Aid to interpretation of ambiguous provision

• Estoppel


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


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


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


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


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?


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


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


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


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


3. Questions

Do you have any?

Grievance & Arbitration Primer: What You Need to Know - July 18, 2013

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Transcript of Grievance & Arbitration Primer: What You Need to Know - July 18, 2013