Arbitration proceedings are initiated by a grievance, i.e. a complaint, ordinary in writing, alleging violation of the collective agreement. The grievance should state the basis of the complaint, allege that the action complained of is contrary to the agreement, and set out the relief requested in specific terms. When including a statement regarding the remedies sought, bear in mind that, depending upon the circumstances involved, such relief may include any of the following: a declaration of violation of the collective agreement, a cease and desist order, and a direction to comply in the future; revocation of disciplinary action, reinstatement with seniority, back pay and interest; appointment or promotion with compensation for lost wages and interest, etc.
The nature of the complaint should be set out in the grievance. However, there is no need to refer to particular sections of the collective agreement, in the body of the grievance unless the agreement itself stipulates that this must be done. If you do refer to particular sections of the agreement, you should include a blanket reference to “other applicable sections”, so that the presentation at the arbitration hearing is not restricted to those sections specifically mentioned.
A grievance must ordinarily be based on a violation of the collective agreement. Therefore, before filing a grievance, you must determine which provisions of the agreement have been violated, and in which way. In this regard, it is important to understand that, if the grievance should proceed to arbitration, the arbitrator will determine that meaning of the clause in question primarily by considering the plain meaning of the language used, in the light of its purpose, and in the context of other clauses in the collective agreement. At this stage, it is useful to review a text or commentary law, to assess whether the grievance has merit. Remember that evidence of past practice or negotiating history is relevant only where the language of the agreement is ambiguous, a claim is raised that the opposite party should be “estopped” from insisting on the strict terms of the contract because of a prior representation that it would not do so, or an argument is made by the opposite party has not acted fairly or reasonably in administering the collective agreement.
While occasionally the employer may file a grievance, e.g. relating to a contract interpretation or a claim for damages arising out of an illegal strike, most grievances are filed by employees or the union. Depending upon the type of grievance, e.g. whether it affects an individual or the bargaining unit as a whole, the collective agreement may contain different grievance procedures. In most agreements, these procedures are not mutually exclusive, and the union will be entitled to seek redress for employees in the bargaining unit as well as for itself, but some agreements stipulate that a union or policy grievance cannot be brought if an individual grievance could be filed. In order to avoid a technical objection at arbitration, if doubt exists as to whether a complaint involves an individual or a policy matter, both individual and policy grievances should be filed and processed at the same time. Later, the grievances can be combined, on agreement, or one can be proceeded with and the other held in abeyance or withdrawn. In Ontario, if the statutory procedure for expedited arbitration is used, the Minister of Labour may be asked to appoint the same arbitrator to deal with several differences arising under a collective agreement.
The grievance and arbitration procedure is designed to enable employees to obtain justice at the workplace without resorting to self-help in the form of a refusal to work or a work stoppage. In this regard, arbitrators have ordinarily held that an employee who objects to a work-related direction must in any event comply with the direction, and test the issue of whether it violated the collective agreement by filing a grievance and proceeding, if necessary, to arbitration. Failure to follow this procedure may subject an employee to discipline for insubordination. The “work now, grieve later” rule is an attempt to balance the right of employees to fairness against the employer’s interest in maintaining uninterrupted production at the workplace. However, the rule is subject to some important exceptions. It does not apply, for example, in circumstances where the illegal, unhealthy or unsafe, or constitutes an invasion of privacy or personal dignity. In British Columbia and Ontario, arbitrators have been given power to make pre-hearing orders, and interim relief may be available pending a full hearing in cases where the grievor would otherwise be prejudiced.
Investigating the Grievance
It is essential to the proper processing of a grievance that the facts be fully and thoroughly investigated at the earliest possible opportunity. As time goes by, memories fade, witnesses leave their employment and cannot be located. They become reluctant to be involved. As a result, you should interview all available witnesses as soon as possible, and make notes of their recollection of events. These notes will be of great assistance during discussion of the matter between the parties, and even more so should the grievance proceed to arbitration.
Available documents must also be gathered. They may include seniority lists, medical reports, discipline records, letters of intent, written rules and regulations, previous related grievances and settlements, correspondence between the parties, minutes of meetings, and documents evidencing past practice or negotiating history.
It is useful to prepare an investigation report. The more information, the better. Moreover, the better the information is organized, the more useful it will be.
Collective agreements commonly provide for a grievance to be processed through several stages before it is submitted to arbitration. Meetings are held at each step, although the number of steps is often abbreviated where a discharge is the subject of the grievance. The purpose of this arrangement is to provide an opportunity to the parties themselves to settle their differences without the necessity for third party intervention. It is usually better to solve problems than to pursue legal disputes. Moreover, grievance meetings provide excellent opportunities to define the issues, and to obtain factual particulars of the opposite party’s case, and disclosure of relevant documents.
Be sure to take notes at union-management meetings during the grievance procedure, and to write down not only your own position, but that of the other side. This will help you in further investigation, and in preparing the case for hearing, because you will know what case you have to meet. Moreover, these notes, which should be signed and dated, can be used to acquaint others who subsequently deal with the case, including the advocate at arbitration, with the facts involved, and the positions taken by the parties. You can rely on the confidentiality of these notes, for discussions during the grievance procedure are considered to be privileged, and arbitrators will not require them to be disclosed at the arbitration hearing. To do so, it is felt, would chill such discussions and discourage attempts to settle grievances.
Missing Time Limits and What To Do
Most collective agreements contain time limits, applicable both to the filing of the grievance and the processing of the grievance from one step to the next, including the final step of referral to arbitration. Replies must also usually be filed within stipulated time limits. Sometimes, time limits are mandatory; sometimes they are not. However, whether or not time limits are mandatory, it is desirable that grievances be processed within the same limits set out in the collective agreement. If more time is needed, an extension of time limits should be requested.
What should you do if a grievance is filed late, or there is delay in processing the grievance? The clear answer is that you should proceed anyway, since the time limits set out in the collective agreement may be directory rather than mandatory, i.e. they may be intended only as guidelines, not as a requirement. Even if the time limit is mandatory, the opposite party may proceed without objection; if an objection is not raised prior to the hearing, the arbitrator may well rule that the objection has been waived. Furthermore, the legislation of some provinces explicitly authorizes an arbitrator in appropriate circumstances to extend the time involved in processing a grievance, whether or not the time limits are mandatory. Thus, section 45(8.3) of Ontario’s Labour Relations Act empowers an arbitrator to extend the time limits where these are reasonable grounds for the extension and the opposite party is not substantially prejudiced.
In short, when it comes to filing or processing a grievance, stay within the time limits. But, if you do breach them, don’t just abandon the grievance. There are a number of legal grounds upon which you may be able to overcome the defect. Moreover, if a grievor brings a duty of fair representation complaint, and the labour board directs that the grievance proceed to arbitration, regardless of the time limits, you will have done what you can to limit any liability the board may impose for lost wages due to your delay in processing the grievance.
If the opposite party tells you that the grievance is not valid or arbitrable, don’t accept this as necessarily true. Seek advice, or let the arbitrator decide. If the opposite party does not file a reply within the time limits, and the agreement does not provide that the grievance automatically succeeds in such circumstances, you can go on to the next step. You don’t have to wait. Remember that processing the grievance – even giving notice to arbitrate – doesn’t prevent you from discussing the grievance with the opposite party and from withdrawing it if it later turns out to be without merit. However, if you are going to withdraw a grievance, you should stipulate that withdrawal of the grievance is “without prejudice” and does not constitute acquiescence in or agreement to the action complained of. Better still, if you can, obtain the opposite party’s agreement to the “without prejudice” disposition.
Union’s Duty of Fair Representation
Eight Canadian jurisdictions have enacted legislation requiring unions to fairly represent all employees in the bargaining unit, and a breach gives an aggrieved employee a right to file a complaint with a labour tribunal. This duty requires a union not to act toward a bargaining unit employee in a manner that is arbitrary, discriminatory or in bad faith. (In Manitoba, unions are responsible if they fail to take reasonable care in representing dismissed employees.)
For practical purposes, what does this mean? It means that labour boards will not intervene to second-guess union representatives who make judgment calls regarding the merits of a grievance, and that they will not concern themselves with honest mistakes or ordinary negligence. But on the other hand, they will intervene, where a complaint is filed, if a union fails to investigate a grievance, or does so in a perfunctory fashion; process a grievance in a manner that shows a reckless disregard for the interests of the grievor; treats the grievor differently from others; or exhibits personal hostility toward the grievor, a desire for political revenge, lack of fairness or impartiality, intentional deception, flagrant dishonesty or sinister motives.
Unions have considerable leeway in deciding whether or not to take a grievance to arbitration. They may take into account a wide variety of factors, e.g. the likelihood of success of the grievance at arbitration, the effect of the outcome on the rest of the bargaining unit, the union’s financial position, etc. However, the nature of the employee’s grievance is significant, for the more serious the issue, the more rigorously a labour board will assess the union’s decision not to carry a grievance forward. This is especially the case where critical employment interests are involved, such as seniority and job security.
Unless a collective agreement or statute provides otherwise, an employee cannot go to arbitration without the union’s approval. It is the union which is a party to the collective agreement and it is the union which has carriage of the grievance and the final say over access to arbitration. Rarely does a collective agreement allow an employee to trigger the arbitration process, because of the impact an adverse ruling could have on other employees and on the union itself. There are also significant cost implications in proceeding to arbitration which a union is entitled to take into account.
Moreover, as a party to the collective agreement, the union is entitled to settle a grievance on behalf of an employee. This power on the part of the union also reflects the fact that the parties to the collective agreement, i.e. the employer and the union, have a continuing relationship which will suffer if the union brings forward unworthy claims, or adheres to unrealistic positions. There is no general requirement that the grievor consent to a settlement, but as a matter of practice, the union should advise the grievor of the terms of a proposed settlement, and permit the grievor to give his or her opinion on it. However, a union can override the employee’s position, if it does so for valid reasons, e.g. if it feels that the proposal is as good as could be obtained at arbitration or the employee is being unreasonable.
In negotiating a collective agreement, unions may agree to settle or trade off outstanding grievances. This is permissible, provided the union can show that it has considered the merits of each individual grievance, weighed the interest of the grievor against the interests of the rest of the bargaining unit, and arrived at its decision in a fair and unbiased manner. On the other hand, where a grievance involves dismissal or disciplinary sanctions, the discretion of a union to settle an apparently valid grievance during negotiations in order to obtain concessions for the bargaining unit as a whole, with the employee’s consent, may be substantially restrained.
Labour boards take note of the fact that union representatives often represent employees at arbitration, and that these representatives are generally capable and experienced. As a result, boards have rejected the argument that the duty of fair representation obliges a union to retain a lawyer to represent them at arbitration. Rather, unions can follow their usual practice with respect to representation, although, any departure from usual practice in this area should be justified by the union.
Missing a time limit for filing or processing a grievance will not automatically be found to violate the duty of fair representation. Labour boards take account of prevailing standards in the industrial relations community in establishing standards for the duty of fair representation, and it is a fairly common occurrence for such dates to be inadvertently missed. In assessing complaints of this kind, labour boards will consider a number of factors, including the volume of complaints with which the union must contend, the consequences of missing the time limit, the level of experience of the union official, and the reasons for missing the time limit. Only in extreme cases, i.e. where a union representative has missed a time limit because he or she failed to give any consideration at all to the grievance, will a union be found to have acted arbitrarily in breach of the duty of fair representation. In short, honest mistakes or simple negligence will not generally be found to breach the duty of fair representation, except in Manitoba, where a standard of reasonable care is required in dealing with dismissal.
If a labour board decides that there has been a violation of the duty of fair representation in processing a grievance, it will attempt to put the grievor in the position he or she would have been in if the union had not breached its duty of fair representation. In some cases, this means that the board will order that the grievance proceed to arbitration, notwithstanding that a breach of the time limits has occurred. In addition, it may direct that the union provide representation or, where a conflict of interest exists, pay for an independent lawyer at arbitration. Where a breach of the duty of fair representation is found, and the parties are directed to proceed to arbitration, labour boards have held that the union is liable for wage loss sustained by the grievor as a result of delays for which the union is responsible, while the employer is liable for the rest.