Chapter 10 Concepts - Admin of the CBA Flashcards
What are the primary functions of the grievance process?
Provides a dispute settlement mechanism
Ensures compliance with the collective agreement
Provides a forum for additional bargaining during the term of the collective agreement
Explain the possible benefits of the grievance and arbitration process to the employer, unions and employees.
> Benefits to the Employer, Union, and Unionized Employees
- Settles disputes without interruption of work
- Settles disputes prior to next round of negotiations
> Specific Benefits to Management
- Provides a communication or consultation mechanism for the parties
- Establishes a check on the quality and consistency of management decisions
- Provides a voice mechanism for unionized workers that reduces turnover
> Specific Benefits to Unions and Union Officials
- Provides a potential pressure tactic
- Provides a method to oppose or resist management directives
- Increases union solidarity
- Provides political benefits to union leaders
> Specific Benefits to Unionized Employees
Provides a review of workplace decisions by outside party
Increases job security
*** What is the meaning and significance of the burden of proof in arbitration?
In any arbitration case, either the union or the employer will bear what is known as the burden of proof—that is, it will have the job of proving the facts in dispute.
The general rule is that the burden of proof is borne by the party filing the grievance, which in the majority of cases is the union. Discipline and discharge cases are an exception. In such cases it is the employer that bears the burden of proof.
The burden of proof will be significant if the arbitrator cannot decide whose version of the facts is true, because in that event the party bearing the burden of proof will lose. If a union filed a grievance alleging that an employee had sufficient ability for a job vacancy, and the evidence was not clear, the burden of proof would not be met and the arbitrator would dismiss the grievance. Another way to state this is that the union had the onus to show that the employee had sufficient ability and it failed to do so.
At an arbitration hearing, either of the parties can make arguments “in the alternative.” Explain what this means, and give an example of a union argument that illustrates this concept.
This means that neither the union nor the employer is restricted to putting forward only one claim or defence. They can make secondary or alternative arguments if the arbitrator does not agree with their primary position. In effect, either side can say, “Our position is A; however, if you do not agree with A, we submit that you should find B.”
What are the factors an arbitrator would consider when reviewing the discipline imposed by an employer?
Factors Arbitrators Consider When Reviewing Discipline Imposed by the Employer
> The seriousness of the misconduct
The length of service of the grievor
The previous record of the grievor
Provocation by management or other employees
Whether the misconduct was premeditated or committed on the spur of the moment
Whether the penalty creates special economic hardship
The uniformity of enforcement of rules
Whether rules were brought to the attention of employees
Whether the grievor initially denied or admitted the misconduct
Other factors that might be considered—for example, the failure of the grievor to apologize
** Describe the union’s duty of fair representation and explain how the employer could be affected by this obligation.
the union has a duty of fair representation—that is, a duty to act fairly in the course of representing employees in the bargaining unit.
This duty applies to the administration of the agreement and in some jurisdictions, also applies to the negotiation of the collective agreement.
Generally, the union has ownership of the grievance and arbitration process, and it is not a violation of the duty to refuse to refer a dispute to arbitration if the union acts fairly. If the union listens to an employee’s complaint and considers the matter and fairly determines that it would not be of any value to proceed, it is not a breach of the duty if a grievance is not processed or referred to arbitration.
A breach of the duty of fair representation is an unfair labour practice. An employee who thinks there has been a breach of the duty may file a complaint with the Labour Relations Board. If the Board determines there has been a breach, it has the authority to order remedies as listed in Figure 10-6, some of which might affect the employer.
What are the levels/steps of a grievance?
1 - Grievance is presented to supervisor. At the shop steward level
2. - the grievance is presented to higher level of management
3- even higher level. like VP of HR or senion Union reps
** Rights vs. Interest Arbitration
A distinction must be drawn between grievance, sometimes referred to as rights arbitration and interest arbitration.
> Grievance or rights arbitration resolves disputes relating to the interpretation, application or administration of the collective agreement. If an employee was discharged, he or she could file a grievance alleging that there was a violation of the collective agreement because there was not just cause. If the dispute was not settled through the grievance process, it could be referred to rights arbitration for final resolution, including possible reinstatement of the employee.
> Interest arbitration relates to an entirely different type of dispute that arises during collective bargaining where the negotiating parties cannot agree on the terms of a collective agreement. In interest arbitration, the employer and union present evidence and make submissions regarding what the agreement should contain, and the arbitrator’s decision sets out the terms of the contract. Interest arbitration is used primarily in areas of the public sector such as police and fire services, in which strikes are not allowed.
** What 4 questions will an arbitrator consider when making a decision?
B
P
M
R
1) who has the burden of proof. Does the griever sufficiently demonstrate proof of their claim?
2) Does the punishment fit with the action?
3) Are there mitigating factors?
4) Is the employment relationship restore able?
Options available;
> support management/uphold the decision
> side with the union/possible reinstatement
> sub a lesser penalty
