Module VI

Question 1

List: functions of grievance and arbitration process (3)

Answer 1

• Provides a dispute settlement mechanism
• Ensures compliance with collective agreement
• Provides a forum for additional bargaining during the term of the collective agreement

Question 2

List: benefits to grievance and arbitration process (3)

Answer 2

• Benefit to all: settlement of disputes without interruption of work
• Benefit to management: avenue for communication
• Benefit to union: pressure tactic, question management decisions, union solidarity
• Benefit to employees: opportunity to be heard

Question 3

List: employer concerns regarding grievance process (s)

Answer 3

• mechanism to challenge management decisions

- could be used to harass or obstruct

Question 4

Define: privileged communications

Answer 4

Communications that cannot be referred to as evidence in subsequent arbitration hearings

Question 5

Define: without prejudice

Answer 5

Cannot be referred to in any subsequent proceedings

Question 6

Define: arbitration

Answer 6

Adversarial process in which the parties present evidence through witnesses and documents, have an opportunity to cross-examine the other side’s witnesses, and present a final argument themselves.

Question 7

Define: rights arbitration

Answer 7

Resolution of a dispute relating to the administration of a collective agreement. AKA grievance arbitration.

Question 8

Define: interest arbitration

Answer 8

Determination of the terms of a collective agreement.

Question 9

Define: agreed statement of facts

Answer 9

Matters that the parties have agreed upon.

Question 10

Define: burden of proof

Answer 10

Who must prove the facts in dispute, who has the onus or job or proving the issue in dispute. Generally it is the party filing the grievance.

Question 11

Define: argument in the alternative

Answer 11

A party making an argument it wishes the arbitrator to accept if it’s primary argument is not accepted.

Question 12

Define: arbitrability

Answer 12

Issue whether an arbitrator has the authority to hear a dispute

Question 13

Define: cost of arbitration

Answer 13

Most collective agreements provide that the parties will split the cost of the arbitrator or chair of the arbitration board regardless of who wins

Question 14

Define: remedies

Answer 14

Arbitrators have authority to grant remedies for breaches of the collective agreement

Question 15

Can you pursue a judicial review of an arbitrators decision?

Answer 15

Yes, except in BC.

Question 16

List: grounds for discipline (10)

Answer 16

• Failure to attend
• Leaving work without permission
• Lateness
• Theft
• Falsification of employment records or documents
• Misconduct on the job
• Incompetence
• Insubordination
• Off-duty behaviour affecting business
• Breach of company rules

Question 17

List: allowable possible discipline (4)

Answer 17

• Written warning
• Suspension
• Demotion
• Dismissal

Question 18

List: non-allowable forms of discipline (3)

Answer 18

• Impose fines (unless collective agreement authorizes)
• Reduce seniority
• Discipline twice for the same misconduct

Question 19

List: factors arbitrators consider when reviewing discipline imposed by the employer (9)

Answer 19

• Seriousness of the misconduct
• Length of service
• Previous record
• Provocation by management or other employees
• Whether misconduct was premeditated or committed on the spur of the moment
• Whether the penalty creates special economic hardship
• Uniformity of enforcement of rules
• Whether or not rules were brought to attention of employees
• Whether griever initially denied or admitted misconduct
• Other facts, such as failure to apologize

Question 20

Define: last-chance agreement

Answer 20

An agreement providing employee will be conditionally retained or reinstated.
Advantages: employee avoids dismissal, motivation to rehabilitate, possibly valuable employee is retained, arbitration may be avoided

Question 21

Define: culpable absenteeism

Answer 21

Missing work involving employee fault or misconduct

Question 22

Define: innocent absenteeism

Answer 22

Absenteeism employee has no control over

Question 23

List: conditions that must be met in order to terminate employees for innocent absenteeism (3)

Answer 23

• Past absence is significantly over bargaining unit average
• No likelihood of future improvement
• Duty to accommodate has been met

Question 24

List: possible labour relations board orders to remedy a breach of Duty of Fair Representation (5)

Answer 24

• Direct union to take grievance to arbitration
• Provide employee with independent legal counsel at arbitration hearing
• Direct union to pay damages to employee
• Direct union to meet with employees
• Direct union to post a notice confirming it will refrain from future violations

Question 25

List: advantages to grievance mediation over arbitration (4)

Answer 25

• Faster than arbitration
• Less costly than arbitration
• Better solutions
• Protects relationship