Inventive framing of grievances

Typically, when we teach undergraduate students about grievances and rights arbitration, we assume the alleged breach of the contract is obvious and therefore skip over the importance (in practice) of careful grievance framing. This reflects the need to simplify the grievance arbitration (which is pretty complex) in order to not overwhelm students who are new to the process.

As part of a research project, I came across a 2012 case that highlights how the framing of a grievance can be very important to whether or not a union is successful. The decision is:

Canada Safeway Ltd v United Food & Commercial Workers Canada Union, Local No 401, 2012 CanLII 58574 (AB GAA)

You can find the decision on canlii.org by searching the CanLII number (58574). CanLii is an excellent repository of Canadian law.

The basic facts are these:

• An employee of a grocery store was caught stealing three chocolate bars (valued at $6.37) from the store at the end of his shift. This behaviour is both a violation of employer policy and a crime.
• An employer loss-prevention officer apprehended the worker in the parking lot. The employee was returned to the store and interviewed by security.
• The employer failed to provide the worker with union representation, which was required by the collective agreement. During the interview, the worker admitted the theft.
• When the company learned the interview had taken place without union representation, it discounted all information from the interview, sought to re-interview the member with a union representative present, and, when the union said “yeah no”, the employer terminated the worker based upon the testimony of a witness to the theft.

The union could have grieved this, arguing that discipline was warranted but the penalty was too harsh. Usually stealing results in termination, but the facts (e.g., low value of theft, worker had a significant cognitive disability, worker admitted theft immediately) might have resulted in a reduced penalty. Or maybe not. Instead, the union framed the grievance as a denial of union representation and sought damages for the griever and for the union (in lieu of reinstatement). We don’t know why the union framed its grievance this way, but we can guess a bit.

To start with, the facts were better for a representation grievance than for a termination grievance. The worker stole the chocolate bars in front of a witness. (My first thought reading that as a former grievance officer is “oh yeah, you’re fucked buddy.”) Arbitrators generally view theft in the dimmest of terms (essentially extinguishing the relationship of trust necessary in an employment relationship). Fighting the discipline (despite the possibly mitigating factors) would be a tough slog for the union.

The employer’s error (not providing a union rep) pushes aside the context (i.e., theft) and triggers the fight on much better terrain for the union. Union representation was a clear requirement of the collective agreement and arbitrators generally come down hard on employers who deny worker union representation. In this case, the admission of theft during the interview also opened the worker to potential criminal charges. (If he’d had a union rep, the rep would have terminated the interview and gotten the griever a lawyer.) And the employer’s efforts to remediate the disciplinary process are a de facto admission of the violation.

There is also the issue of available remedy. If the union had won a grievance on the termination, about the best they could have done given the facts was reinstatement (maybe with back pay, but probably without). There is also some hint that the worker did not wish to return to the job.

Under the representation angle, the union sought $10,000 for the worker in damages and $25,000 for the union. If the union won the representation grievance, it stood to attach significant financial and reputation costs to the employer’s conduct (which hopefully would affect the employer’s behaviour going forward).

(There was also the matter of the jurisprudence around theft changing at this time and this was a good case to test whether an older approach, that favoured employers, was still valid. We don’t know if that was in the union’s mind at the time, but maybe it was, since employee theft is a recurring basis of discipline in the retail industry and getting a favourable interpretation of the jurisprudence would be useful to the union in the long term.)

In short, there was a better chance of winning the representation grievances and a much bigger upside to doing so than of winning a termination grievance. This case suggests that experienced union-side advocates, when faced with an apparent violation of a worker’s rights, will often ask themselves “what kind of grievance is most likely to be successful?”

-- Bob Barnetson