Grievance Case Study Assignment Summer 2016

Grievance Case Assignment 

Using the Case Study Approach, write an essay on the Fred Cummings case below. Your essay should be approximately 5 pages, double spaced. It is worth 10% of the final grade. It may be done alone or in teams of two. If more than two people do an essay, I will divide the total mark by the number of people.  

You can reference other cases in your decision or you may simply base your decision on your own reasons.  

You have to analyze the case and to write up an arbitration award with reasons for your decision. If you have any questions regarding this assignment, bring them up in class or email me.

Gerald Swartz

CASE STUDY APPROACH: GRIEVANCES 

All grievances take the same format.  They all come out of complaints or concerns about alleged misinterpretations, misapplications, or violations of the existing collective agreement.  

The grievance itself is a process for raising the complaint.  The grievance, even if it starts off with an informal, verbal complaint, must become written and formalized according to the procedure in the collective agreement.  The right to grieve is established in the various provincial and in the federal labour relations legislation.

When studying grievance cases we see that the most important part of the case is the statement of the issue.  What is the grievance saying has been done?  How or why is this wrong?  The issue statement may offer further detail as to who has been harmed and how they have been harmed.  Grievances which the parties are unable to resolve through the grievance procedure may go forward to arbitration.  

The arbitrator looks at the case from the perspective of what questions have to be answered in order to make a decision on the dispute.  The primary question comes from the grievance statement and takes the form of “Did the company’s action (or inaction) violate the collective agreement?”  For example – did the company violate the collective agreement by suspending worker Smith?  

If the arbitrator decides yes, then the arbitrator is accepting or agreeing with the grievor (virtually always the union) AND must then also make a decision as to how to correct or rectify the decision.  

If the arbitrator decides no, that means the arbitrator has denied or rejected the grievance and upheld the original management decision or interpretation.

All grievances are decided on the merits of the case.  However, arbitrators may be influenced by decisions of other arbitrations or by past practices of the parties.  If the wording of the collective agreement and the circumstances of the case are similar between the case at hand and an earlier case, the arbitrator may be influenced by the earlier decision.  However, the arbitrator can make their own decisions and need not be bound by the precedents of other cases.

Some people say that unless constrained by the conditions placed on the arbitration, arbitrators have the right to make arbitrary decisions.  They are usually asked to provide reasons for their decisions.  

The arbitration cases should al be examined in detail with attention paid to the following:

1. the definition of the issue brought to arbitration
2. the facts of the case
3. the position of each of the parties
4. the arbitration decision
5. the reasons for the arbitration decision.

Understanding these 5 points helps one understand the case and its implications.

There are both individual and policy grievances.  Individual grievances pertain to a harm or potential harm done to one person.  Policy grievances refer to harm or potential harm to one or more individuals as a result of a policy interpretation or application, or as the result of the introduction of a new policy.  

The most common types of grievances cover issues (decisions) related to seniority or to discipline.  

Most grievances are settled between the parties without going to arbitration.  

FRED CUMMINGS Physical Contact — Threatening of Management Personnel

Background

Company and Union representatives agreed on the following:

On March 4, this year, shortly after 1 p.m., just outside the Crossway's Tavern, four company management employees and four company employees who were members of the bargaining unit represented by the union, were involved in a physical scuffle. This had been preceded by a verbal exchange between some of the parties some 10 to 15 minutes previously while they were all in the tavern. As a result, the four Union represented employees were not allowed to return to work on their next shift. Subsequently the four were advised of their discharge.

They then grieved that they had been discharged without just cause.

The company's answer did not change the discharge and subsequently the Union processed the grievance to arbitration.

At the arbitration hearing, the grievors all testified that there had been trouble at the plant that morning with regard to the matter of raises for certain employees. There had been heated discussion between management and the Union personnel regarding certain management decisions, particularly the policy adopted in giving these raises. Cummings was one of the stewards involved in these discussions. Shortly after these discussions had ended, Cummings requested permission of his supervisor, Walker to leave work that day. He stated that he was upset because of the lack of sleep due to a sick child and the event of the morning had aggravated his condition. Out of concern for the safety of himself and others, permission was granted. He went to the Union Hall where he met the four other grievors. They stated that they played shuffleboard until 11:15 or 11:30 a.m. when they left to have lunch at the tavern as it was one of the places where they could play bank board shuffleboard. They denied they went to the Crossway's Tavern because they were aware that some of the management personnel would also be there for lunch.