Chapter 10: Third-Party Dispute Resolution Procedures

Grievance Arbitration

Three Key Parties in the Grievance Process

1. The employee, who often is the initial of the grievance
2. The union, who is usually first represented by the shop steward
3. Management, who at the start of the process is usually represented by the immediate supervisor

If the grievance is not settled through the “normal grievance process, external third parties may became involved”

Rights Arbitration - When the parties can’t resolve a grievance through the internal grievance process, it can

This Process

• Never a jury present
• No true judge as the arbitrator may not be a lawyer or judge
• Proceeding does not take place in the courthouse
• Decision is based on probably cause

Jurisprudence - The past decisions of other arbitrators, and that arbitration decisions are considered final and binding

• Most arbitrators will consult and follow past decisions
• Arbitrator is deemed to be a neutral party

Example - Arbitration Process

1. Union will need to establish a Prima Facie Case
2. Collective agreement was in place
3. The griever in question was covered by the agreement
4. Griever was employed
5. The griever was disciplined
6. The management group will need to present evidence to answer questions in order to show that there was just cause for its disciplinary actions
7. Did the alleged events take place? (show evidence or attendance records)
8. Was it reasonable for the employer to provide some sort of discipline?
9. Management will need to prove that the griever is culpable - that he/she is blame worthy
10. (Table 10.1 – Key Arbitration Issues)
11. Union representative will have the opportunities to question the management witness and provide counter evidence
12. Union presents what is known as mitigation factors during arbitration
13. These factors are used to reduce or remove the sanction imposed by management
14. PAGE 305 – Mitigation factors that the union may argue
15. After hearing all the evidence, a decision will be written
16. Ruling will wither be “grievance denied” – No changes are awarded and management decision is supported OR “grievance upheld” management decision was not supported
17. Some cases are “partially upheld” – Meaning that part, but not all, of the unions argument is accepted

What does it take for management to win an arbitration concerning discharge?

1. Progressive disciple was used
2. Treatment of the griever was consistent with that of other employees in similar situations
3. There was little likelihood of the grievers conduct being reformed given his or her current employment record
4. Past corrective action steps have failed

The Forms of Arbitration

1. Conventional Tripartite Arbitration
2. 3 person arbitration panel $\rightarrow$ common method used for rights arbitration
3. Both management and the union each choose a representative and mutually agree to a third chairperson
4. Chair is sometimes called the “neutral chair”
5. Split decisions are not uncommon
6. Useful in complex cases where the side persons can be used in a sounding board capacity for the parties by the neutral chair
7. Sole Arbitration
8. The primary difference between this form of arbitration and the previous is that there is just a neutral chair; no nominees
9. This form Is usually used in conjunction with expedited arbitration
10. Most common in Ontario
11. Tends to be faster and cheaper

Problems - Grievance Arbitration Processes

1. Long delay between actions that prompted the grievance and the arbitration ruling
2. Arbitration's are costly. Typical arbitration requires each side to pay for its respective committees and share the cost of the chair, the room where the hearings take place, etc.
3. Many unions and management teams will hire lawyers to represent them, adding to the cost,
4. There are also hidden costs of the staff time spend preparing for the arbitration
5. “Outsider” Factor - Arbitrators who will make the final decision often lack first-hand knowledge of the workplace and work relationship in question
6. Process is becoming increasingly legalistic – Many unions and employers hire lawyers to represent them in arbitration, while others hire legal counsel as full-time employees
7. Rare that management would send a manager or the union would send a front-line representative to argue the merits of the grievance

Interest Arbitration - Used as an alternative to strikes when parties are not permitted to strike or lockout

• When they fail to reach a collective agreement on their own, they must turn to arbitration
• Usually used in public-sector agreements

Interest Arbitration in Canada

Two Forms of Interest Arbitration

Conventional Interest Arbitration - The parties submit potential solutions to the outstanding issues; the arbitrator can then choose among the options or craft his or her own to settle the outstanding issues

Final-Offer Arbitration - The parties submit a final offer to the arbitrator; arbitrator must then choose the full final offer of either management of the union

• Rationale is that the parties would be likely to submit reasonable alternatives given that the arbitrator would have to choose all of one of the two packaged placed before him/her

First Agreement (or first contact) Arbitration

When parties can’t come to a mutually agreeable collective agreement during the very first round of negotiations, they must submit to interest arbitration.

Interest Arbitration

Pros

• Reduces the incidences of strikes

Cons

• Unintended effect of increasing grievance arbitration's, unfair labour practices, absenteeism and job actions

Other Conversion Mechanisms

Conciliation and Mediation

• Involves a 3^rd party facilitator
• Facilitator has no power to impose a settlement but uses his/her abilities to bring the parties together

Process

1. Passive Stage - The mediator selects a neutral location to meet with the parties to introduce each other and determine the issues in dispute
2. Probing Stage - Having identifies the issues the mediator attempts to fins areas of compromise on selected issues
3. Active Stage – If he/she is successful in stage 2, then the final stage involves push to settlement with both labour and management concessions to avoid a strike

Alternative Dispute Resolution (ADR) Options – Resolving disputes in ways other than going to court, mediation, negotiation, conciliation

Grievance Mediation - Voluntary process where the parties can have a neutral third party examine the grievance; mediator works with the parties to attempt to have them broker the resolutions, yet it still leaves open the option for a formal arbitration hearing

Alternative Dispute Resolution in Nonunion Firms

1. ADR can be seen as part of a high-performance work system – emphasize fair treatment of employees in an effort to increase employee commitment, retention and performance
2. Under common law, litigation was the only way employees could attempt to resolve disputes with employers; ADR provide an alternative to litigation
3. The implementation of ADR is a form of union substitution