YUFA
Grievances
YUFA’s Internal Practices in Dealing with Problems, Complaints and Grievances
by Professor Marilyn Silverman, former YUFA Chief Steward
11 Jul 05 – The following document describes YUFA's internal practices for dealing with problems, complaints and grievances, but is not a legally binding document. YUFA's Collective Agreement, Constitution and By-laws are the legally binding documents which govern the process.
YUFA’s By-law 14d states that a Chief Steward “handles complaints and grievances [and] assists stewards in advising members of their rights.” In this work, the Chief Steward is aided by a Grievance Subcommittee (By-law 4). However, YUFA’s By-laws do not describe what exactly all this entails and how it works in everyday practice. The following is an effort to describe what happens.
Everyday Practices
YUFA’s practices associated with members’ problems, complaints and grievances have evolved over time in the context of (1) our Collective Agreement with the Employer (York University’s Board of Governors); (2) the formal and informal ways in which the Employer handles employee problems and chooses to interact with YUFA; and (3) the formal and informal means used by YUFA’s Chief Stewards, its Grievance Subcommittee and its professional staff in dealing effectively and efficiently with the Employer.
In addition to our Collective Agreement, our By-laws and the Employer’s administrative structures, a broader context also affects YUFA’s internal practices. These include our “duty of fair representation” to all grievors as defined by the Ontario Labour Relations Board; the rules and time lines imposed by other university bodies, such as Senate; and the advice, based on case law and past practice, which is continually available from a firm of labour lawyers which YUFA keeps on retainer.
The complaint and grievance process is outlined in Article 9 of our Collective Agreement. When a problem first arises and a faculty member / librarian comes to YUFA for help or advice, efforts may be made by a YUFA staff person to resolve the difficulty informally: a telephone call to a chair, to the Well-Being Centre, to the Benefits Office, etc. will sort out many difficulties. However, if it appears that the trouble emanates from a breach of the terms and conditions embedded in one or several Articles of the Collective Agreement, then the YUFA staff person will call in a Chief Steward to meet with the complainant. At that meeting, a decision will be taken as to whether to proceed to a complaint stage, that is, a formal meeting with representative(s) of the Employer – usually the relevant Dean as well as the Director of Academic Employee Relations, who, according to a protocol which YUFA has with the Employer, must be informed of any actions being taken by YUFA under Article 9. If the complaint is not resolved at that meeting or through subsequent actions taken by the Employer, YUFA may file a written grievance, or the affected faculty member may file a written grievance with the formal support of YUFA.
Such a grievance can be filed on behalf of an individual or on behalf of a group of employees. As well, if the complaint has implications for a number of members or units that were not involved in the original complaint, or for the integrity of the Collective Agreement itself, YUFA’s Executive Committee, on the advice of the Chief Steward and Grievance Subcommittee, may file a policy grievance on the basis of the same breach. In so doing, YUFA will may fold the individual / group grievance into its own policy grievance. This allows YUFA to use the breaches experienced by individuals to provide the empirical bases for supporting the policy grievance. It also prevents distinct and separate grievances on the same issue, thereby ensuring that the processing of the grievances, and the outcomes, will be the same for everyone.
What happens to the complainant / grievor during the above process? What is his / her involvement? What are his / her rights? YUFA has the right to be present at every stage of the grievance procedure, and has the right to represent the grievor if the grievor so desires. Prior to a complaint stage meeting with representatives of the Employer, a Chief Steward as well as a YUFA staff person and the complainant normally meet to discuss strategy. How should the complaint be presented to the Employer? Which articles of the Collective Agreement should be cited as having been breached? Should the grievor attend the meeting with the Employer? What documents should be handed over? Who should say what at the meeting? What is the remedy which should be demanded from the Employer? Usually the Chief Steward, the YUFA staff person and the complainant are able to agree on these tactics. In addition, the Chief Steward and the staff person may seek the advice and input of the Grievance Subcommittee. If, however, the complainant disagrees with how the process should be handled, the complainant is free to use whatever tactics s/he wishes, make whatever demands s/he wishes on the Employer, and so on at the complaint stage meeting. The YUFA Chief Steward and staff person will still accompany the complainant to the complaint stage meeting and provide whatever advice might be relevant to the complainant before, during and after the meeting.
After the complaint stage meeting, the Employer can follow several possible avenues. The Employer (a) may respond in writing to the complainant, denying any fault or the Employer (b) may contact the grievor and / or the YUFA staff person to offer suggestions on how it is prepared to remedy the complaint. At this point, the complainant and the Chief Steward, along with the staff person, will discuss whether to file a formal grievance, whether to confer further with the Employer concerning its offer before filing a grievance, and whether to drop the issue. As before, the complainant may choose whether to follow the advice and suggestions of the Chief Steward, staff person and, if it has been consulted, the Grievance Subcommittee. If the issue is not resolved at this stage, YUFA may decide to file a written grievance on behalf of the individual or group, or the individual or group can file a grievance with the formal support of YUFA. The Employer is required to reply to the grievance in writing.
In other words, according to our Collective Agreement, a member may present a complaint at a complaint stage meeting without assistance or permission from YUFA. However, YUFA has a right to be present. If the matter is not resolved at the complaint stage, a formal written grievance can be filed by YUFA, or by the individual or group, provided that YUFA's formal support is obtained.
What happens next? According to Article 9.13 of the Collective Agreement, the next stage in pursuing a grievance is a meeting with the Dispute Resolution Committee (DRC) – a joint YUFA-Employer committee which will attempt either to mediate the grievance or to hear the grievance and provide a formal report. It is at this point that YUFA takes carriage of any and all grievances. This means, in the case of an individual or group grievance, that: (1) the Chief Steward, often consulting the Grievance Subcommittee, is the one to decide on the merits of the grievance and whether the Employer has acted to resolve the problem and, therefore, whether the grievance is either settled or should be sent to the DRC; (2) the Chief Steward is the one who decides, if sent to the DRC, whether the grievance will be mediated or formally deliberated; (3) the Chief Steward decides how the complaint will be presented to the DRC; and so on. Usually, in practice, the grievor, the Chief Steward and the staff person agree on this routing without any difficulty, largely because the options are not complicated and the outcomes of various possibilities are fairly predictable.
However, it is important to bear in mind that the wishes of the grievor and that of YUFA may occasionally diverge. A grievor is naturally concerned with pushing for a win in his / her particular case. In contrast, the Chief Steward (and the Grievance Subcommittee) are concerned about the particular case in the context of the impact of the case for the Association as a whole, consistent with the legal requirements of properly representing the grievor. This includes a realistic assessment of the possible outcomes, the possible ramifications for the grievor, the potential impact on the interpretation of the Collective Agreement in the future, cost and other relevant factors. These concerns will inform the Chief Steward's decisions at this point, often with the advice of YUFA's outside legal counsel and the Grievance Subcommittee.
In this vein, if an individual or group grievance has been rolled into and filed as a policy grievance, the Chief Steward will usually by-pass a DRC hearing and move the grievance directly to arbitration (i.e., an external juridical forum). Alternatively, the Chief Steward, with the advice of the Grievance Subcommittee, may occasionally decide to send the problem / grievance to the Joint Committee on the Administration of the Agreement (JCOAA) or ask Executive to form a sub-committee for discussions with the Employer for discussions with the Employer. Before making this decision, the Chief Steward will always obtain a written legal opinion from our lawyers. The decision will then be based on balancing two concerns. On the one hand are the interests and aims of particular grievors; on the other hand, the Chief Steward must consider the impact of any outcome (i.e., the precedent which could be established) for all YUFA members and for the Collective Agreement.
In other words, policy grievances (even if they make reference to individual or group complaints), will usually proceed directly to arbitration after a failure to resolve the matter at the complaint stage. At this point in the process, YUFA’s lawyers are closely involved and work at the direction of the Chief Steward in consultation with YUFA staff. An arbitrator, selected from the list given in Article 9.16, must be agreed to by both YUFA and the Employer. Dates for the hearing must be found. These steps can take a good deal of time. Then, immediately prior to the hearing (note that lawyers do not prepare more than a few days in advance), the lawyers will collect evidence, interview witnesses and discuss arguments with the Chief Steward and staff person.
Anyone can attend the actual arbitration hearing, unless there has been an exclusion order by the arbitrator. (For example, arbitrators sometimes exclude witnesses from the hearing room before they have given their evidence, and in very rare cases, an arbitrator could hold a hearing or part of a hearing in private.) However, the Chief Steward will often invite specific YUFA members who have particular expertise or interest in the issue to attend. This is done for two reasons: first, so that the Chief Steward will be able to provide the best possible instruction to our lawyer during the hearing, and second, so that members’ opinions and viewpoints can be continually taken into account.
Sometimes, an arbitrator, before moving into a formal hearing of the facts or at any point during the hearing, will ask the Employer and YUFA if they wish to have him / her try to mediate the issue. If both parties agree, usually each side will go into a separate room, with the arbitrator taking offers back and forth. If this process does not result in a settlement, everyone moves into one room and the formal arbitration resumes, with each party making its case in front of the arbitrator and calling witnesses.
Throughout this process, it is the Chief Steward – in very close consultation with YUFA’s lawyer and staff person (and sometimes in consultation with the other YUFA members in attendance) – who is responsible for directing the lawyer and making decisions. Usually decisions emanate logically out of the process itself, except when external constraints, such as an impending action by an external body (e.g., Senate) or the particular nature of precedent-setting case law, open up options upon which the Chief Steward must decide.
What about individual or group grievances which have not been folded into a policy grievance because they concern specific interests and specific individuals and may be resolved without prejudice to other members of YUFA and / or without impact on the workings of the Collective Agreement? After consultation with the grievor, the Chief Steward will usually move an individual grievance to the DRC if the complaint has not been resolved at the complaint stage. Then, in consultation with the grievor, the Chief Steward will ask the DRC panel either to mediate the dispute or to report formally on the merits of the grievance.
If mediation does not work, and / or if the Employer does not act to resolve the grievance according to the DRC’s formal report, YUFA’s staff person will send all the documentation to YUFA’s lawyers who will provide a formal opinion on the likely success of the grievance at arbitration. The individual grievor may be invited to attend a meeting with the lawyer so that the nature of the opinion and its arguments can be explained. Then, on the basis of this legal opinion and the recommendation of the Grievance Subcommittee, YUFA’s Executive Committee will decide whether to have the grievance move forward to arbitration.
In this vein, it is important to note that arbitration is not only expensive but the ruling of the arbitrator will affect the entire YUFA membership and the terms of the Collective Agreement. The Executive Committee therefore takes its decision by weighing the risks of a negative outcome against the benefits of a positive one. The Executive Committee must also consider what constitutes “fair representation.” Thus, a grievor may elect to appear in person before the Executive Committee, if he / she believes it might help in the decision-making.
If Executive then declines to move the grievance to arbitration, YUFA’s By-law 17 describes how a grievor can lodge an appeal to YUFA’s Stewards’ Council: how the grievor informs the Chief Steward of his / her decision, how the item is put on the agenda, who may attend the meeting with the grievor, and so on. A grievance ends if Stewards’ Council refuses the grievor’s appeal to permit the grievance to advance to arbitration or, if it is advanced, it ends with the arbitrator’s written and binding ruling on the merits of the grievance and the remedy. However, at any point before the arbitrator rules, the two parties (YUFA and the Employer) may agree to terms which will settle the grievance.
Balancing Carriage Rights with the Duty of Fair Representation
The everyday practices which have evolved, as well as the formal operations of the grievance process (as specified in YUFA’s By-laws and the Collective Agreement), are based on the central principle that the Faculty Association has carriage rights over any grievance. Thus, an individual member may hold a formal complaint stage meeting with an Employer representative (although YUFA has the right to be present), and may file a grievance, provided the member obtains the formal support of the Association. However, after the filing of the grievance, the Association assumes control and carriage of the grievance. There are several reasons for this.
The norm in the unionized university sector in Ontario is for the union, and not individuals, to have the right of carriage at the point of arbitration. If individual members, and not the union, have the right to carry forward ill-founded or minor grievances to arbitration, the result may set damaging legal precedents that impact negatively on the working conditions of everyone else in the bargaining unit. Moreover, the union may be required to expend large sums of money to pay for the arbitrations, thus undermining its financial accountability to the membership for the stewardship of union funds. Finally, a flurry of unrelated, individual grievances hamstrings an association’s ability to set bargaining priorities, to pursue a series of systematic negotiations with the Employer over the medium and long term and to protect the rights of the many. For these reasons, YUFA long ago opted to embed the current carriage principle in its By-laws and in the Collective Agreement.
The principle that YUFA has carriage of a grievance does not mean that the rights of individual members are unimportant or neglected. Both in law and in practice, these rights are well protected. Labour law states that a union has a duty to represent fairly its individual members. Thus, a YUFA member can appeal to YUFA’s Executive Committee if s / he objects to the way in which a grievance is being handled by the Chief Steward and the Grievance Subcommittee. A YUFA member can also appeal to the Stewards’ Council if the Executive Committee decides not to arbitrate a grievance. Finally, a member who believes that s/he is not being fairly represented can bring a case to the Ontario Labour Relations Board.
As for practice, the everyday workings of YUFA’s staff and Chief Stewards are geared to incorporating the individual member into the entire grievance process, through all its stages. YUFA’s staff and the Chief Steward hold numerous and lengthy meetings with members who have a complaint in order to explore the problem and the grievor’s concerns; to talk about the political and inter-personal dynamics which may underlie a complaint; to mine the Collective Agreement to find contractual support for a grievance; to craft strategies vis-à-vis the Employer; to examine all the options which may be available to the grievor in the York environment; to hear the opinions of the lawyers etc. At all points in the process, such discussions take place – with the grievor identifying priorities and concerns – and at all stages in the process, the grievor may have direct input. In the vast majority of cases, such careful collaboration and representation works in everyone’s interest because the best possible outcome is achieved – both for the grievor and for the Association.