Defence to Union Grievances
What is a union grievance?
A union grievance must be reduced to writing and constitutes a "dispute' under a collective bargaining agreement. Reasons for filing a grievance in the workplace can include:
alleged violation of specific provisions of the collective agreement;
challenges to improper pay or promotions;
layoff and bumping rights; and
harassment and discrimination.
Grievances are usually submitted by the union. However, as a party to the collective agreement, the employer also has a right to file grievances where it deems appropriate.
The company received a union grievance. What do we do?
Respond. Most collective bargaining agreements provide time limits for responding to a grievance. The failure to respond to the grievance within those time limits can prejudice your company's rights.
We strongly recommend that you consult with an experienced labour lawyer, prior to providing the union with your response. If you need more time to respond to a grievance, whether for the purposes of investigation or seeking legal advice, ask for it from the union, in writing. Such requests are seldom declined.
A union grievance is a formal complaint which begins a process requiring parties to a collective agreement to meet to discuss the grievance, exchange information and consider resolution where appropriate. There are usually a number of steps to the grievance process, where the union and the company are required to act within specific time frames. They often include the following:
The parties meet to discuss the grievance within a certain time.
The company provides a reply to the grievance.
Often, a further time limit is set within the collective agreement to meet again to attempt to settle the grievance. The parties may settle the grievance, the grievance may be withdrawn (with or without specific terms) or the employer may deny the grievance.
When the grievance is denied, it can be submitted to arbitration. Such denial should always be reduced to writing. Employers must be very careful when stating the reasons for denial of a grievance. Again, we strongly recommend that you consult with an experienced labour lawyer.
In theory, the grievance process allows an opportunity to understand the other side's position and the nature of the dispute, and to investigate the allegations and respond either positively or negatively in a well-considered manner. The parties may seek additional meetings even where not required to do so. In effect, the grievance process is an opportunity for parties to consider settlement of the matter before it goes to arbitration.
That said, there are many reasons for an employer to deny the grievance.
The union may simply be wrong.
Resolving the grievance in favour of the union may set a bad precedent.
An employer may want to deny a grievance if resolution would result in diminishing company rights under the collective agreement or, creating or redefining rights which were never agreed to in the first place.
An employer should not settle a grievance merely to avoid arbitration. Grievance settlement must be very carefully considered, and all issues weighed accordingly, including the impact upon current and future rights and responsibilities under the collective agreement.
What a company does during the grievance process must be carefully considered with the background possibility of arbitration. The company will be bound to the representations it makes in support of its decisions. For example, a unionized employee is terminated on account of repeated production failures. However, the company is also aware that the employee has been engaged in time theft (i.e. leaving early and having other employees clock the employee out). If the company only relied upon the repeated production failures in terminating the employee and subsequently denying the grievance, it might not be able to rely on the time theft as a defence at arbitration.
In defending union grievances, what you do now will affect you later.
Ultimately, a grievance not settled or abandoned will be submitted to arbitration. There are a number of things to consider.
First, not all arbitrators are created equal. Some have more experience in certain areas than others. Look at the case law to see how certain arbitrators have decided similar issues. Choose your arbitrator based upon experience; not mere availability. An experienced labour lawyer can assist you in selecting the right arbitrator.
Second, consider the arbitrator's jurisdiction to decide the grievance. Remember, an arbitrator's jurisdiction (the right to decide the matter), flows from legislation and the collective agreement. The collective agreement may place limits upon the arbitrator's jurisdiction to grant what the union is asking for. This is a defence to the grievance.
Sometimes the Union will abandon the grievance, and only submit it to arbitration long after the fact. This delay is also a defence to the grievance.
What can Hyde HR Law do for my company?
How you deal with responding to grievances will ultimately affect the final outcome. Hyde HR Law can guide you through the grievance process, to put you in the best position to win at arbitration. Contact us today. Contact Us