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

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  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

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