Question 1
You asked: How does a Union determine whether or not to proceed to arbitration?
Let’s get into it.
The decision on whether to proceed to arbitration always comes at the completion of the grievance procedure. Some grievance procedures have three steps and others have four. Regardless of the number of steps, the last step in all grievance procedures is arbitration.
At the completion of the final step before arbitration, both the Union and the Company should have fully discussed all the facts and all of the appropriate law that could be argued in the circumstances of the grievance under question. That is the “theory”. It is expected that both parties have members who are experienced and qualified to thoroughly analyze all the relevant factors.
The most significant factor is - “What are the chances of the grievance succeeding at arbitration?”
To determine the chances of success, the most reliable indicator is the “jurisprudence” and how other arbirations have been decided when the same or similar facts are involved. Jurisprudence is simply the collection of previously decided arbitration cases.
There are two components to a grievance: [1] the facts, and [2] the law.
Most grievances proceed to arbitration when the facts have not been agreed upon completely. The Union must also assess if the Company has considered the “mitigating factors” impacting the final decision made by the Company. For example, in a termination grievance the “jurisprudence” requires that the Company answer this universally accepted labour law principle:
“Is the discipline given appropriate in ‘all the circumstances of the case’”?
There are a great many circumstances to be considered, including the employee’s past disciplinary record, the employee’s seniority, how other employees have been treated in similar situations, any facts that weigh in the employee’s favour, any medical conditions, etc. (Labour lawyers make a living from arguing “all the circumstances”.)
The Union also takes into consideration the cost of going to arbitration. It is a very expensive legal action with the total costs shared between the Union and the Company. A typical arbitration can cost approximately $30,000. Taking all grievances to arbitration is simply not financially reasonable. Nor is it financially responsible. The Union and Employer should be settling grievances at a stage prior to arbitration.
Let me give you a real-life example of a grievance that I recommended that the Union NOT take to arbitration. Let me start with the relevant facts.
An employee was terminated for “breaching a last chance agreement”.
A last chance agreement (LCA) is exactly what the description means. The agreement itself was arrived at by mutual agreement between the Union, the Employer AND the grievor. The terms always include several restrictions on the grievor in return for being returned to the workforce and not being terminated immediately. In the facts of this case the LCA one of the clauses stated that if the grievor gave any cause for discipline, the Employer would terminate the employment and the Union and the grievor must agree in writing that the Union would not grieve the termination – as long as there was “just cause” for new discipline.
In the factual circumstances of this grievance, the grievor repeated the very offence that he was originally disciplined for and that triggered the Employer terminating him. The Union has fulfilled its obligation by determining that there was, in fact, just cause for discipline. Therefore, in accordance with the LCA, the Union would NOT pursue this grievance any further.
To further support its decision to not proceed any further, the Union researched the case law on “breaching Last Chance Agreements” and there was overwhelming consensus from arbitrators the proceeding with a grievance for breach of a LCA results in a 100% dismissal of the grievance.
It is important in labour relations that Unions and Employers be able to resolve issues with certainty. Trust is paramount to maintaining a positive relationship in which problems can be resolved. A Union that reneges on it’s word loses the ability to present arguments with integrity or credibility in the future. Arbitrators reinforce this by not allowing grievances for breach of a LCA to be successful. Having studied the jurisprudence, the Union can easily determine not to proceed to arbitration with this grievance.
I have previously given an analysis of a grievance that the Union decided NOT to take to arbitration. There are of course many grievances where the Union DOES decide to proceed to arbitration. The following example is an analysis of just one type of grievance that the Union takes before an arbitrator.
This will be a lengthy (but very informative) analysis of a complicated grievance. Part of the purpose of this website is to give “in depth” information on the topics I am asked to comment on.
The grievance that I am going to analyze and describe in detail is happening in real time. The arbitration is scheduled for February 2027. (Yes, arbitrations take a LONG time to get scheduled and, especially in terminations, the employee/grievor must make an effort to get alternate employment or income. He/she cannot simply rely on being successful in arbitration and being awarded “back pay” or “make whole status”. This particular employee was terminated in July 2025. It will be approximately 18 months before his grievance is before an arbitrator.)
Facts: An employee was terminated for “Non-culpable absenteeism”.
What does that mean? CMBC has an “Attendance Management Program” (AMP). It has multiple levels and the final level sets “target attendance” parameters. Once an employee has exceeded the target levels in the time frame given then his/her employment status comes under review - with a possibility of termination.
The first thing to know is that the AMP is NOT found anywhere in the Collective Bargaining Agreement (CBA). That is noteworthy in that it means the Union has not participated in the creation of the AMP and has no input into how the Company manages it.
The second thing to know is that the AMP is NOT found anywhere in the Company Policy Manual. As many policies as CMBC has, the AMP is not considered one of them. This is again noteworthy in that the Union is allowed to have “input” into Company policies. Not so in the case of the AMP.
The third and most important fact for the purpose of determining how the Union presents the grievance is to note that “Non-culpable” means the action taken by the Company is not, at law, considered “disciplinary”. This is a very important fact to know and understand. The Union CANNOT proceed in the way it normally would for a discipline grievance.
In a typical discipline grievance, the Union would start by asking the three questions from William Scott.
(Elsewhere on this site we will posting the entire arbitration decisions of many cases that are referred to as “seminal” cases. They are the leading cases on given subjects. In the case of discipline grievances, “William Scott” is that case. It is used by every arbitrator across Canada for all grievances that are involve “discipline and discharge”.)
This is the reference to the full decision for those that are interested: William Scott & Co. v. C.F.A.W., Local P-162 (British Columbia Labour Relations Board July 26, 1976)
It should also be a case that EVERY shop steward is intimately familiar with as the great majority of grievances are, in fact, discipline based.
These are the 3 questions from William Scott:
1. First, has the employee given just and reasonable cause for some form of discipline by the employer?
2. If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstances of the case?
3. Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?
It is very difficult for most employees to grasp that being terminated for excessive absenteeism is not considered discipline. It is also very challenging for Union representatives to understand that the typical response to a termination is to assert that the Company did not have “just and reasonable cause”. In the case of “non-culpable discharge” that is NOT an argument that will prevail at law.
The Union’s best arguments will be rooted in two other arguments.
[1] The Company has violated the Human Rights Act, and
[2] The Company has not administered the AMP properly.
The first steps rely very heavily on research. The Union rep(s) handling the grievance must first and foremost acquire and then understand ALL documentation available regarding how the AMP is supposed to work. Information is available through “guidelines” issued by the Company to its management team. The Union rep(s) start there by answering the question: How is the AMP supposed to work?
In this current case there is also a wealth of information available from previous arbitrations between CAW/Unifor and CMBC. There are no less than nine previous arbitrations, one Human Rights Tribunal decision, one BC Judicial Review decision and one BC Court of Appeals decision.
WHY IS THE UNION PROCEEDING TO ARBITRATION IN THIS CASE?
There are 3 reasons for proceeding.
[1] The Company is in breach of the previous litigation regarding the inclusion of partial days in graduated return to work as days absent for the purpose of determining if the grievor met his target attendance expectations.
[2] The Company is simply not tracking absences/attendance accurately (showing absent on days grievor was driving and showing driving on days when the grievor was absent).
[3] The Company is in breach of the Human Rights Act regarding a medical condition that I will not elaborate on.
Many grievances are settled prior to arbitration even when arbitration dates are already set. Efforts have been made to settle this grievance, but the Company simply will not agree to a settlement.
I am hopeful that if you are still reading this then you are able to gain some knowledge about how to protect yourself and you get a deeper appreciation for how challenging being a Union representative can be.