I WANT TO FILE A GRIEVANCE!!!
These are words we hear many times over the course of a week. Grievances are one of the least understood actions Union members can be involved in. The history of how grievances came to be is interesting and beneficial for people to know.
Decades ago, in the hopes of creating better and safer work environments, workers started to band together to use the power of numbers to get improvements in their workplace. This organizing led to early forms of job actions where workers would withhold their labour to create change. These early job actions resulted in workplaces negotiating contracts which were binding on both the employer and employee. Laws were created that forbid employees withholding labour when they had a contract in place with their employer. The challenge then became what would happen in the middle of a contract if the two sides could not agree on the intent of the language that was in the contract. To address this, it was agreed that there needed to be a process in place. This became the grievance process.
There are many forms of grievances and they can be filed by both the Union and by the employer. Many of you will recall the grievance filed by the University a few years ago challenging whether the language in the Collective Agreement allowed them to make unilateral changes to our pension. This grievance took many months to sort out.
One of the most common grievances we would see on the Grievance Committee is one where one of our Union members would feel there has been a violation of the Collective Agreement. Let’s say that it involved some form of compensation that they felt they were entitled to under the Collective Agreement. The member would approach the Grievance Chair stating their case. The Grievance Chair would look at the information provided, see if there was a violation under one of the articles in the Collective Agreement, and then present the case later to the Grievance Committee to decide whether the Grievance Committee felt there was a violation of the Collective Agreement. There are timelines involved with this process. You have 30 days of first finding out the information that you feel may be a violation to the Collective Agreement to have a grievance filed on your behalf.
If the Grievance Committee feels there is a violation of the Collective Agreement, they will file a grievance on your behalf. The Union holds carriage to the grievance. In other words, the Grievance Committee will be the ones to decide whether the grievance is filed and how far they will proceed with it. At the University, in a grievance like this ,we would have 3 levels or stages.
Level one, or stage one as we call it, will be presented to a representative from the department it occurred in. The Grievance Chair will present the Union’s case and someone from Human Resources will present management’s argument. The person hearing the grievance will render a decision regarding the presentations within a certain time frame, 3 business days as per Article 14.6.3. Problem solving prior to and after the stage one meeting are encouraged and often can result in a resolve. It can be difficult for the Union to win at stage one as the person selected by the University to hear the grievance usually has some form of involvement in the decisions leading up to the filing of the grievance. Once the decision is rendered, if the Union is unsuccessful, the Grievance Committee will meet again to decide whether or not to proceed to stage two.
Stage two. The stage two grievance will be heard by someone from senior Human Resources. Once again both sides will present their arguments and the employer will have 30 calendar days to render a written decision of the stage two meeting. Once again, the Grievance Committee will meet to decide if the decision was unfavourable, whether to proceed on to arbitration. Again, this is the Grievance Committee’s decision to make, not the griever.
Formal problem-solving meetings will be happening prior to and after each stage to try and come up with a resolve. Unfortunately, in order for this to work, one side or the other or both will need to move off their position. If a resolve is negotiated, it must be bought back to the Grievance Committee for approval. If agreed upon, the Grievance Chair will meet with the griever to go over the resolve. The griever will not have a voice in whether or not the resolve is accepted or whether the grievance is retracted. The Grievance Committee cannot make a decision that is arbitrary, discriminatory or in bad faith.
If the decision rendered by Human Resources after stage two, is not favourable to the griever, the Grievance Committee may decide to move it on to arbitration. If this is the case, the two sides will need to agree on an Arbitrator, and a time will be booked for the Arbitrator to hear the arguments. Typically, once an Arbitrator is agreed upon it will take up to a year for a hearing to take place. Problem solving can and will take place right up to the hearing. By the time a case gets to a formal hearing in front of an Arbitrator there would typically be a number of meetings formally and informally trying to come to a resolve. A decision is supposed to be rendered within 60 days of the Arbitrator hearing it as per Article 14.8.4 but I find it usually takes longer than that. The Arbitrator hearing the case may know how they are going to rule on the hearing fairly quickly but they have to create the supporting documents and rational as to how they arrived at their ruling. Once a decision is rendered, that decision becomes case law. In other words, similar cases afterwards can use that decision to persuade an Arbitrator to rule in their favour. As our National Servicing Rep has told us, bad cases/weak cases can create bad case law, which can impact cases to follow.
As you can see by the steps outlined here, it can take many months, if not years, to work thru the grievance process. It doesn’t happen quickly. If we are successful in front of an Arbitrator, it will usually take a few months of negotiating with the employer to determine an outcome. Grievances are always worded so that we are asking for the member, to be whole in all aspects. What this means is every benefit, etc., that they enjoyed before hand would be there afterwards. In the case of someone losing their job and we are successful getting it reinstated, wages, pension, benefits etc., will be looked at to make the member whole. It should be noted that if you were terminated you would be required to try and find employment to mitigate your losses while you were awaiting a decision on your grievance. In a case such as that, you will be required to submit your tax information to try and determine how much if any of your income needs to be replaced. These discussions/negotiations can take some weeks to hammer out and if both sides cannot come to an agreement, the Arbitrator could be required to step back in to award any and all damages.
Bob Jones
Acting President, CUPE 1975