What happens when we move a grievance to arbitration?
Increasingly the Employer is leaving YUFA no choice but to take grievances to arbitration rather than agreeing to settle these using quicker and less costly routes. Below is an outline of the arbitration process.
The Arbitration Process
- The Union and Management will select an arbitrator and contact them to schedule a hearing. Arbitrators have a lot of ongoing cases, and hearings can take place several months after selection. While the member’s availability is taken into consideration, priority is given to the arbitrator's and the lawyers' schedules. The hearing is normally scheduled for a whole day and can take place over Zoom. Hearings may also be scheduled in the evenings. Members on whose behalf YUFA has filed an individual grievance are expected to attend hearings and to make best efforts to accommodate their schedules to the available dates.
- Since YUFA normally files grievances, it is up to YUFA to set out the facts of the grievance for the employer and the arbitrator. To this end, YUFA and its lawyers will normally prepare a brief. The grievor may be asked to review the brief to verify and/or provide information, or supply evidence (for example, correspondence). The brief will include YUFA’s request for “production” from the employer - that is, any relevant documents and/or correspondence that the employer has in its possession. If the documentary evidence or the employer’s production weaken our case, YUFA may decide to withdraw the grievance or pursue a mediated settlement.
- As the hearing date approaches, the member will meet with YUFA and the lawyer, who will prepare the member for the hearing. The lawyer will review the case and the particulars and may clarify details and ask questions. The Union may advise the member to manage their expectations. Neither mediation, nor arbitration will commonly yield the sense of “justice” that members are seeking.
- The parties usually agree to mediate the case first. This is different from an actual arbitration proceeding. The arbitrator acts as mediator and the parties' representatives try to negotiate a settlement. The member(s), their witnesses (if any) and the Union reps are in one room and the Employer reps are in another room with the lawyers and the arbitrator going in between. It is common for YUFA grievances that are referred to arbitration to be settled at this stage.
- If negotiations fail during mediation and YUFA still wants to pursue the grievance, the matter proceeds to a formal arbitration hearing. The hearing starts on the same day if there is time or a date will be scheduled by the parties or existing dates will be used for arbitration.
- Should the grievance proceed to arbitration, another preparation meeting with YUFA and its lawyer might be needed, especially if the member will be a witness. If the member is a witness, they will normally be trained on what to expect on the stand, including during cross-examination. Members will be encouraged to focus on the questions they are being asked and to answer simply, without embellishment. This will help with witness credibility, which the arbitrator will be assessing and which can be an important factor in the arbitrator’s decision.
- During the hearing, the lawyers present their respective arguments, call witnesses and present evidence similar to a real courtroom but normally with a more relaxed, informal atmosphere. It is important to note that after the member has given their initial or “viva voce” evidence, led by YUFA’s lawyers, they may not speak to either YUFA or its lawyers about the case until they have been cross-examined by the employer. Normally YUFA will try to get dates as close together as possible to prevent an excessive period of time between viva voce evidence and cross examination. afsda
- After the arguments are presented, the arbitrator writes a decision setting out the issues that the grievance has raised and their determination on how those issues are settled. Arbitrators will look at the language of the Collective Agreement, any applicable law, and arguably similar arbitration decisions. The arbitrator will order a remedy or award if they agree that there was a violation of the member’s collective agreement rights. The decision is rarely made the same day - it can take several weeks or even months before the arbitrator makes their decision. The arbitrator's decision is final and binding on both the Union and the Employer, regardless of whether we agree with it or not. It is important to note that such decisions are public and can have implications for arbitration outcomes for other faculty Associations and unions in Ontario. Unlike the traditional legal process, appeals, referred to as “judicial review”, are rare and limited to the application of legal standards by the arbitrator.
- Throughout the grievance process, which includes arbitration, the Union has carriage rights. This means that the Union - particularly YUFA’s executive committee, has the right to determine whether the grievance moves forward to arbitration, gets settled, or is withdrawn.
- The Union considers what the Grievor wants, the merits of the case (ie. existing labour relations norms and legal precedents), and the interest of the union as a whole before making its decision to proceed.
- The grievance can be withdrawn often without major consequences to the Union's positions towards the Employer. The Union can withdraw the grievance at any moment during the process.
- However, not pursuing a grievance could allow the employer to continue a practice with which we disagree and force us to grieve again or allow the practice to become entrenched.
- If the union intends to withdraw a grievance and the grievor is not satisfied, the grievor can appeal their case by requesting to present in front of the Stewards Council for reconsideration.