10: Third-Party Dispute Resolution Procedures

Untying the Knots of Labour Disputes

by
Lightspring/Shutterstock

At the beginning of June 2020, the ongoing labour dispute between Saskatchewan’s Co-op Refinery Complex (CRC) and the union represented by Unifor 594 seemed destined to remain unresolved. The employer locked out the members of the bargaining unit on December 5, 2019, after the union voted to go on strike. The next six months resulted in a work shutdown, along with escalating and increasingly hostile labour relations tactics enacted by both sides as noted in this news article, posted on June 1, 2020. Almost three weeks after that, the stalemate appeared to be over with the announcement of a tentative deal being reached between the parties. How is it that this kind of resolution is possible in the midst of what seems to be an entrenched and especially hostile labour relations dispute?

The mechanism for resolution may be attributed to the use of government-appointed mediators, as mentioned in both the aforementioned news article and in this CBC news clip. While the mentions are brief, the impact of mediation in the form of neutral third-party intervention is profound. When parties are stuck in a labour dispute, they are tied up in a series of ‘nots,’ both figuratively and literally. They are not moving, not resolving, and not able to speak with each other in any way that is resolution focused. The longer the dispute continues, the more rigid both parties become as they tighten their hold on their respective immovable positions.

It is the role of the mediator to try to assist the parties in finding a way to become unstuck and loosen their hold on their respective ‘nots.’ The mediator, as a third-party neutral, often assists by creating an objective opening that enables the parties who are stuck to let go and try to approach some form of agreement. During the process of mediation, the disputing parties are still doing the work to reach a deal. The mediator simply assists the process in several ways. They may shepherd messages from room to room. They may caucus with party representatives to ensure that messages are delivered, heard, and listened to, without escalation and devolving into personal attacks. When emotions do run high, a successful mediator will know how to de-escalate and allow emotions to be expressed without inflicting residual harm onto the whole process.

While mediators are appointed by the applicable government as conflict resolution resources, they are perceived by both sides (labour and management) as being neutral. This YouTube clip, prepared by UFCW Local 401, provides a brief overview of the role and benefits of mediation approaches during the collective bargaining process.

Coming out of this particular labour dispute between the CRC and Unifor 594 will not be easy. The parties still have to ratify and accept the tentative agreement. Once that is completed, the next steps will require both workers and management to release themselves from several negative ‘nots.’ All parties will have to adjust from not being at work to being at work; from not trusting each other to trusting each other again; from not staying entrenched in past bitterness to being open to honest dialogue focused on resolutions for the future. Most importantly, the relationships that have been frayed through hostile actions against one another will need to be repaired with time and patience.

Discussion Questions:

  1. If you were the mediator for the CRC and Unifor 594 labour dispute, how would you approach each party to look for possible solutions?
  2. Each province has designated and mandatory approaches for dispute resolution steps during the collective bargaining process. Based on information you can gather from government websites, outline the steps to be followed in your province.
  3. Do you agree or disagree that mediation should be a mandatory step for any parties locked in a labour dispute? Explain your rationale.

Settlement Means Silence

by

musmellow/Shutterstock

A recent case resulting from the termination of a unionized employee, provides us with some interesting insights into the grievance and settlement processes, which include the provision of confidentiality agreements.

Click here to read the details of the case as reported by the CBC.

Click here to read a legal opinion about the results of this case.

As we know from our labour relations studies, the union is the sole legal representative for the employees who are members of the bargaining unit or association. This means that the union speaks for the employee/member. It is the union who, typically, negotiates the terms and conditions of any settlement agreement that arises from the grievance process on behalf of the employee/member. This does not mean that the employee/member (who is the grievor in this case) does not participate in the settlement processes. The union is obligated to ensure that they represent the best interests of the grievor which includes making sure that the member/employee is present, participates and is fully cognizant of the details of any settlement document.

Settlement documents are considered valid and enforceable when they are ‘fully executed’. This means that all parties to the settlement sign and agree to the terms including the employee/member. It is typical to see both the employee/member’s signature and the union’s signature on a settlement document, along with those of the employer.  A signed settlement document is a legally binding contract. Should one of the parties break the terms of the contract, the entire document may be considered null and void. In this case, it should be no surprise to anyone that, once the terms of the contract were breached by the grievor and continued to be breached after receiving a clear warning from Arbitrator Kaplan to stop breaching the agreed upon terms, that the grievor ended up with nothing as a result.

When an employee is terminated for cause, the employer is relieved of their obligations to pay severance or notice. However, through the grievance and arbitration procedures, the union will argue that the employer had no right to terminate the employee for cause. Whether or not the actions of the employer were justified become the focal point of the case and if not justified, one of the remedies may be payment in lieu of notice or severance provisions by the employer to the terminated employee/member. In this case, under the agreed upon terms of settlement, it seems that the grievor would have received some kind of monetary compensation in order to bring closure to this case. It is possible that the termination for cause may or may not have been justified as the parties agreed to settle the grievance before proceeding to a full arbitration hearing.  Once the settlement was signed, no further action on this case would have taken place had the parties (including the grievor) abided by the terms of settlement.

At the end of the day, however, the grievor ended up where he began at the beginning of the grievance process – without a job, without any compensation for the loss of that job and perhaps with some public damage to his reputation. All of which seems to be as a result of his own making.

Discussion Questions:

  1. As the Union representative in this case, how would you have handled the actions of the grievor?
  2. This case starts with the employee’s termination for cause. Why do you think the actions of the employer (the University) were grieved by the union?
  3. Do you think the final decision by Arbitrator Kaplan was justified? Explain your rationale.

The Power Of An Apology

by

phloxii/Shutterstock

Does ‘I’m sorry’ suffice?

There is something uniquely significant in the power that comes with saying the word ‘sorry’ that causes a shift in the dispute-resolution process.  If there is a signal of remorse or regret for one’s actions, this often opens the door to forgiveness for those actions and the possibility of some form of redress and resolution.

This scenario played out recently in a privacy breach case, which took place in British Columbia.  A nurse’s employment was terminated for cause due to her unauthorized snooping into patient medical records that were not assigned to her. As the nurse was represented by a union, the termination was grieved on her behalf, and the process for resolution went through the procedural steps to an arbitration hearing.

After hearing arguments from both the employer and the union, the arbitrator made the decision to have the nurse reinstated into her former position. This decision was based on a number of factors and was influenced heavily by the degree of remorse that the nurse showed during the course of the arbitration proceedings. The employer appealed the decision, but it was upheld upon review.

Click here to read to read a summary of the case and the review.

For the Human Resources practitioner there are a few lessons to be learned from these two decisions.

First, the concept of zero tolerance in employment policies and procedures may not be sustainable. This does not mean that the employer must accept unacceptable employee conduct or prohibited behaviour. It does mean that the employer, especially in a unionized setting, must be able to apply a level of disciplinary penalty that is proportionate to the alleged incident.

Arbitrators look to the correlation of the imposed punishment to the alleged ‘crime’. In this case, would the termination have been upheld if the employee had received a disciplinary warning or a suspension prior to this culminating incident? It is possible that the outcome would have been different.

Second, the issue of remorse comes into play as a powerful lever for possible rehabilitation and reinstatement. If someone shows true regret for their actions, an arbitrator may determine that this response is authentic and deserves forgiveness in the form of the employee getting their job back.  What it does not take into consideration is the impact of the breach of trust that has happened between the employee and the employer. In this case, how will the employer be able to reconcile its responses to this employee as she comes back to work?

When an employee is returned to their previous position as a result of an arbitration decision, especially one that has been upheld upon appeal, there is no going backwards for either party. The employer will probably not want to pursue any type of supervisory action against the employee because the return to the position is one that was ‘forced’ through the arbitration process.Unfortunately, there is a resulting perception that the employee will be untouchable for the rest of their tenure with the employer. The employee will probably perceive any move on the part of the employer as retribution for their actions or feel that their performance is under constant scrutiny, even if it is not.

At the end of the day, forced reinstatement does not reduce the possible consequences of a severely damaged employment relationship. The only possible remedies that can help rebuild a fractured employment relationship may be some continued apologies and the acceptance of forgiveness for everyone involved.

Discussion Questions:

  1. If you were the employer in this case, how would you perceive the grievor’s attempt at remorse?
  2. Do you think a zero tolerance policy for privacy breaches in a health care setting is appropriate? Explain your rationale.
  3. If you found out your confidential health records were accessed by someone who did not have authorized access, how would you respond? What would you expect the employer to do in your case?
  4. As the HR practitioner in this case, what steps would you put into place to prevent privacy breaches in the future?

 

What’s in a Name?

by

Disputes often arise from good intentions gone wrong.

Source: Paul Lemon/Shutterstock
Source: Paul Lemon/Shutterstock

In a recent case, the Prairie North Health Region (PNHR) tried to amend its practice for employees wearing name tags.   The change was to have the full name (first and last), job title, and picture of the employee on an identity badge, rather than just the employee’s first name.  As noted in the article, the purpose of implementing this change came as a result of the employer wanting to promote a patient first philosophy and to equalize the balance of power between patient and health care provider.

Click Here to Read the Article.

The union representing the workers, CUPE Local 5111, disagreed and filed a grievance in order to stop this change in practice.  The grievance, as noted in the article was based on several grounds, with the allegation of violation of employee privacy as the primary concern. The matter was not resolved internally.  As a result, the dispute went to arbitration for a final resolution imposed by a three-party panel of arbitrators.

The arbitrators’ decision fell on the side of the union.  The employer had to rescind the new policy and had to implement new cards showing only employee first names, job titles along with a photo.

Click Here to Read the Case.

As you will note, this case is extensive.  It shows the amount of critical detail, witnesses, testimony, legislative impact, evidence of past practice and presentation of other precedent setting cases required in order for this matter to be resolved through a board of arbitration.  It was definitely a costly exercise for everyone involved.

Clearly, our names and our right to protect our own personal privacy has value.

One wonders, however, how much the value of good intentions truly cost all of the parties in this case.

Discussion Questions:

  1. Who would benefit from employees wearing name tags with first and last name?
  2. Why do employees, in this case, have a ‘greater’ right to privacy than patients?
  3. What elements of this case would prevent it from being resolved within the applicable grievance resolution process?
  4. Why, do you think, a case like this would proceed to arbitration?
  5. What lessons would you take from your reading of this case?