The final step in the grievance process is arbitration. Understanding a bit about arbitration can help us avoid it (!) and it can help us prepare in case it’s unavoidable.
The two most important things Arbitrators base their decisions on are:
1. The words in the collective agreement (and relevant workplace or human rights legislation).
2. The proven, relevant facts.
From the perspective of arbitration, investigations matter a great deal:
- Even though the great majority of grievances don’t go to arbitration, grievance handlers should investigate every grievance as though it might someday go to arbitration. You can never know for sure whether the one you are investigating now might go before an arbitrator.
- It is very important to interview all the relevant witnesses, write down what they say, collect all possibly relevant documents and keep every grievance in an organized file because, if the grievance does, in fact, go to arbitration, workplace representatives will have a complete file to turn over to the Chairperson, Local Union President or Unifor National Representative who will present the grievance at arbitration.
- A week before arbitration is too late to interview all the relevant witnesses for the first time. The arbitration might be a year after the incident. Memories fade. Relevant documents go missing.
- Good grievance handlers gather all the facts right away because there is no way of knowing in advance what facts an arbitrator will eventually find most relevant, which facts they will find somewhat relevant but not decisive, and which facts they will find absolutely of no relevance at all.
Deciding to go to arbitration
The decision to proceed to arbitration is never made alone. Many of our collective agreements refer to a “grievance committee”. This committee is usually an important part of the decision process. Based on your local union structure and your CA, the following people may be involved in making the decision to take a case all the way to arbitration: Chief Steward, Bargaining Committee Chairperson, Local Union President,
Executive Board, local union membership, Unifor National Representative.
It is important to know that once a grievance is handled by the union, it becomes the property of the union, and the decision to go to arbitration, or even to the next step of the grievance procedure, is a decision of the union in consultation with the grievor, and is not the decision of the grievor alone.
Three things that should influence a decision to go to arbitration.
- The real chances of success.
- The precedent-making effect the arbitration decision might have on future cases in similar facts, as well as the precedent-setting effect of not taking the grievance to arbitration (see past practice and estoppel).
- The effect the arbitration decision might have on the union’s chances in bargaining.
NOTE: If the arbitrator rules against the grievance, management would have their interpretation of the contract on that issue entrenched into law. This would harden their position against changing the contract language around that issue.
Researching arbitration cases
Arbitration cases give us examples of other situations that are similar to ours and tell us how they were ruled on and interpreted by arbitrators. Committeepeople and National Reps refer to past arbitration cases because they:
- give us a good idea of whether or not we have a solid case – and this is important when we’re weighing whether or not to proceed to arbitration.
- give us insight into what evidence an arbitrator considered when making their decision, and this can help us prepare for a case.
- help us prepare our arguments, which may include references to other cases that have come before (we might want to argue that our case is different, say, from one that was ruled in the employer’s favour).
Most stewards will not be expected to research arbitration cases. However, understanding that this is an important step in the investigation process, and in the preparation for an actual arbitration, is important.
How to research arbitration cases
Your local union chairperson and your national representative will be involved in any case proceeding to arbitration and will aid in the case research.
All Unifor National Representatives have access to complete labour arbitration databases through LABOUR SPECTRUM (which includes access on-line to Brown & Beatty, to the Labour Arbitration Cases, and other important cases and resources). Some locals have a SPECTRUM subscription. Many university libraries also have copies of Brown & Beatty that the public can access. An internet search will be most useful for those who have this complete access.
Additional internet sites for researching arbitrations include:
Lancaster House: They provide limited access to their database; however, they have a very helpful e-bulletin
service which emails summaries of recent decisions. See www.lancasterhouse.com
Canadian Legal Information Institute (usually just referred to as CanLII). Currently this data base has searchable arbitration cases from the year 2000 to present for most provinces, as well as many other legal decisions. Using CanLII (or other free arbitration databases) will help you get a feel for arbitration cases generally, but you will only see a fraction of arbitrated cases, and not necessarily the leading ones (which could lead you to the wrong conclusion if you were only using that information to build your case). www.canlii.ca