Update: AUFA members to vote on reversing exec decision

Two weeks ago, I wrote about the Athabasca University Faculty Association (AUFA) executive deciding to make a cash donation to a member. Yesterday, the AUFA membership forced a special meeting on the issue and will soon be voting of a motion to reverse this decision.

A good outcome of the meeting was support for the development of a formal member emergency fund. There are lots of examples to choose from. Most have these features:

• a low- or no-interest loan for a fixed period of time,
• available to members on application,
• a requirement for some disclosure of the circumstances giving rise to the need, and
• decisions being made by a committee without a real or perceived conflict of interest.

The meeting itself flushed out some additional information about the executive’s donation. While I am hopeful that a recording of the meeting will be available to all AUFA members prior to the vote, I worry that the disclosure of the member’s identity by a member of the incoming executive during the meeting may preclude the union from sharing the recording. So, for those who could not attend, here is a recap (I have flagged the new info below):

1. In early June, the executive held an emergency meeting three days before a regularly scheduled executive meeting.
2. The purpose of the emergency meeting was to vote on a donation to a member whose salary had been cut off for refusing to comply with an employer direction (i.e., the member choose this outcome).
3. NEW The member did not ask for this money. Rather, this motion was an initiative of a member of the executive.
4. The executive was not told before voting on the donation that the member could have their salary restored simply by complying with the employer’s demand.
5. NEW The donation was to another member of the executive.
6. The recipient was not named in the notion meaning the payment could not be implemented.
7. Multiple members of the executive resigned over the decision.
8. The executive did not communicate this unprecedented move to the membership until nearly a week later and under pressure that I would tell the members if they did not. 
9. The eventual disclosure (which occurred after voting for the next union executive had concluded) left out important information about the donation, including the resignations that had resulted from it.

So, is this decision by the executive one that should be reversed by the members?

One way to answer that is to look at how far the executive’s process deviated from the typical approach to emergency funds that I set out above.

• There was a donation in lieu of a no-interest loan. There is no explanation for this.
• The member never asked for the money; this was an initiative of an executive member. This raises the question of whether the member is even in need of the money? 
• Key facts were not disclosed to the decision makers. Specifically, (1) evidence of hardship, and (2) that the member was refusing to take action that would restore the member’s salary (which is a bit like drowning in a bathtub because you refuse to sit up).
• The recipient was a member of the same committee that made the decision. This may not create a conflict of interest (that is very hard to tell given the information the executive has provided) but it creates the appearance of a conflict of interest.

Overall, this was a bad process that led to what looks like a bad decision that was then communicated in way that was untimely and incomplete. Consequently, I think this decision, at the very least, warrants a do-over using a better process. The way to achieve that is for the members to pass a motion reversing the decision. The executive could, of course, rescind their decision and do a proper job of it once they have a fund set up.

It is notable that the executive has not followed through on the other motion it passed during the emergency meeting: strike a committee to establish a member emergency fund. Had they done that, members could be voting on that right now (there are lots of examples to cut and paste from, including AUFA’s emergency fund from its strike prep). This inaction is notable because the executive are, on the one hand, aggressively defending their decision but, on the other hand, taking no actual steps that would get their decision implemented (and get the member the money).

Several other motions planned for the meeting (including a non-confidence vote in the lame-duck executive) did not get discussed. An important issue going forward is that AUFA members (who almost all work from home) have no effective mechanism to discuss matters of concern as a group. Hopefully next year’s executive will do something about that.

-- Bob Barnetson

AUFA executive resignations follow unusual payment to member

Last Friday, the executive of the Athabasca University Faculty Association (AUFA) held an emergency meeting. After an apparently acrimonious discussion, the executive voted 5-4 to “donate” $2500 to another member. Subsequently, five members of the executive resigned and the treasurer is unable to make the payment because of the wording of the motion. 

The remaining members of the AUFA executive finally released some information about this payment a week later, after I threatened to go directly to the members. But the executive have left out important context and the subsequent resignations. These omissions are very troubling. This information also comes only after the union’s elections have concluded.

This post compiles the information I have been able to verify about these very concerning events. I believe this decision shows very poor judgment and that the remaining members of the executive who voted in favour of this motion should resign. I understand that one of them has done so this morning.

Background

I’ve redacted some of the details but the gist is that a member declined to comply with an employer direction (i.e., was insubordinate). After several unsuccessful attempts to gain compliance, the employer placed the member on an unpaid leave.

As much as I don’t generally like how AU behaves, placing a member on unpaid leave is permissible in these very specific circumstances (that I am carefully not discussing). This has happened periodically over the past 15 years that I’ve been active with the association and is not an unprecedented situation (what is unprecedented is the payment).

The member decided to continue not complying (and thus not be paid). While being placed on an unpaid leave can certainly create a financial emergency for a member, this is not a labour-relations emergency for the union.

Subsequently, a member of the executive sought an emergency executive meeting to authorize payment of $2500 in financial aid. AUFA does not presently have a system for providing financial aid to members. The union did create an emergency-loan system in anticipation of a strike last year. Absent a work stoppage, that system does not operate because the members have not approved expanding its parameters.

Consequently, this request was brought to the union executive as an ad hoc motion. Article 12.8 of the AUFA bylaws permits the executive to authorize unbudgeted payments of up to $5000 without seeking membership approval.

Nine (of then 13) voting members of the executive were able to attend the emergency meeting:

• Davina Bhandar 
• Pamela Holway
• Jonathan Leggo,
• Gail Leicht
• Katie MacDonald
• Darka Pavlovic
• Kristin Rodier
• Rhiannon Rutherford
• Ching Tan

After an in camera discussion, MacDonald and Bhandar moved:

“AUFA make a one-time donation of $2500 to the member in question in support of undue hardship.”

This motion passed 5-4 with Leggo, Leicht, Pavlovic, and Rutherford opposed. A subsequent motion established an ad hoc committee to look into establishing a formal member emergency fund (which is a good idea).

While no one has been prepared to discuss all of the details of the in camera discussion, some attendees have characterized the information provided to them an incomplete. For example, they were not told that the member could have their pay restored by simply complying with the employer’s direction.

Over the next several days, Leggo and Pavlovic along with Florene Ypma and Dave Powell resigned from the executive over the motion. Leicht (who is also the treasurer) has also indicated she will be resigning as soon as the executive can put someone in place to perform financial oversight functions. In the meantime, she has declined to issue the cheque because she does not have a name and mailing address to permit the issuance of a cheque.

Questions

A number of questions jump to mind:

1. Why it was necessary to call an emergency meeting last Friday when there was regularly scheduled meeting three working days later? An emergency meeting likely reduced the number of executive members able to attend.
2. Why the secrecy within the executive about who the member is? How can the executive make an informed and accountable decision without recording to whom the payment was made (even if this information is shared only on a need-to-know basis)?
3. Why was the executive not informed during the discussion that the member who received the payment could have their pay restored by ceasing their insubordination?
4. Why was the funding provided as a donation, rather than as an interest-free loan?
5. Has this decision established a precedent whereby other members who refuse to comply with legitimate employer directions (i.e., are insubordinate) can now seek financial support from the union?
6. Why did the remaining executive not inform the AUFA membership of this significant departure from past practice and the subsequent resignation of five executive members in a timely manner? This question is especially salient since (1) there was an immediate member request for disclosure (within minutes of the meeting ending) and (2) the payment decision was made in the middle of union elections wherein some of the executive members who voted in favour off the payment were running for office.
7. Does this expenditure fall within the definition of non-core expenditures under the Labour Relations Code (as amended by Bill 32 several years ago) and, therefore, does it require the executive to get the permission of members to collect and expend these dues notwithstanding the bylaws? If so, will payment open AUFA up to a complaint to the Labour Relations Board?

Analysis

While the union executive can spend up to $5000 on its own initiative, this sort of expenditure (which was not an emergency) should likely have been subjected to meaningful consultation with the membership. Indeed, many of the executive members who voted for this motion ran last year on a slate that promised greater transparency.

Savvy union leaders go out of their way ensuring that union decisions, particularly about spending, are transparent and above reproach. Last Friday’s decision does not demonstrate this sort of political acumen. Instead, we see executive members:

1. Calling an unnecessary emergency meeting that only a portion of the union executive could attend.
2. Authorizing an unprecedented payment to another member (with the support of only 5 of 13 executive members).
3. Failing to disclose to the executive members in attendance that the member could resolve their problem on their own by complying with the employer’s direction.
4. Not naming the member who is to receive the funding in the motion, which has resulted in the treasurer being unable process the payment.
5. Disclosing information about the decision only after members threatened to release the information directly to the members and only after the end of the union election, in which some of the remaining executive members were candidates.
6. Possibly created a precedent where the union is on the hook to financially support other members who are insubordinate (or, at least, having to fight off claims for such support).

This behaviour demonstrates why it is important for members to pay attention to union operations and be very choosey about who they elect to manage the affairs of their union.

Now What?

The good news is that a new executive will take control of AUFA as of September 1. Many of the key players in this decision will not be a part of that executive.

AUFA members could also call a special meeting (under Article 5.4 of the bylaws). At this meeting, they could demand an explanation from the remaining executive and/or they could advance motions. These motions could include overruling the payment, voting nonconfidence in some or all of the remaining executive members, or setting up a committee to develop an emergency loan system with meaningful oversight and sensible parameters.

Really, though, the simplest way for the remaining executive to restore membership confidence in the executive would be for the members of the existing executive who voted in favour of this motion to tender their resignations. I understand one of them has done so already (that is six resignations now, if you're keeping track). This would still leave enough executive members to get through the traditionally slower summer months and hand the organization over to the incoming executive in September.

-- Bob Barnetson

Workplace safety versus worker privacy

Employers often struggle to balance their interest in improving workplace safety with workers’ right to privacy. For example, the history of workplace drug and alcohol testing often turns on the circumstances under which is it appropriate for an employer to require a worker to submit to testing (e.g., post incident, suspicion of impairment, randomly).

Employers often assert (and behave as if) workplace safety considerations trump workers’ privacy rights. This is good rhetorical terrain for employers to argue from because it frames opponents of testing regimes as being opposed to (or at least not prioritizing) safety.

When there is an absence of evidence to support the efficacy of initiatives like testing (which is often the case), employers can revert to some version of ”better safe than sorry” as a rationale to justify their position. This rationale runs contrary to the generally acceptable proposition that they who make a claim must substantiate it.

I recently read a 2018 arbitration decision about cognitive testing for Edmonton transit drivers that was quite interesting. You can find the full decision on canlii.org under this reference:

Amalgamated Transit Union, Local No. 569 v Edmonton (City), 2018 CanLII 82319 (AB GAA)

The nub of the case (and I’m paraphrasing pretty liberally) is there had been two bus-related pedestrian fatalities and the government regulator required the city to implement a transit driver evaluation policy. The city’s response was to implement mandatory (1) road testing and (2) cognitive testing.

The cognitive testing included a computerized screening tool. If workers scored above a threshold on the tool, they were then suspended with pay and required to undergo medical evaluation. (There was no evidence that the two fatalities were related to cognitive impairment of the drivers.) The medical testing and release of information violated these workers’ privacy.

The grievance basically asserts that the city had no legal or factual basis for implementing (1) the mandatory screening and, for those who fail the screening, (2) the follow-on medical assessment. The union also argued the cognitive screening test, having been developed primarily to screen for cognition decay in older drivers, was not a valid test for an otherwise healthy population.

In the end, the arbitration panel ruled based upon the union’s argument around the testing being unreasonable and declined to address the (rather troubling) issue of the test’s validity and reliability. What makes this case interesting is that, while the matter awaited adjudication, the employer proceeded with the testing under the “work now, grieve later” principle and we actually have results about the efficacy of the testing.

The firm providing the testing predicted that, of the 1535 drivers tested, 1-2% would be suffering from cognitive impairment (so 15 to 31 drivers, roughly). At the time of the hearing, only one driver was confirmed as having cognitive impairment and a second driver’s status was undetermined (so the true rate of cognitive impairment was 0.12%, or one-tenth the rate the testing firm asserted). The screening tool sent 88 drivers for medical assessment, of whom the vast majority were false positives. (A small number of other drivers returned to work with modest work restrictions related to other medical conditions.)

This sort of outcome (where the proponents vastly over-state the true level of risk in order to push forward with testing) is not uncommon. Random drug testing is another example where, despite decades of effort, there is no good evidence that random testing reduces injuries. Certainly, we would expect a company that is selling testing to make claims that create the appearance that their product is valuable to potential clients. And, these kinds of circumstances are why, generally speaking, we expect those who make a claim to substantiate it.

It is also interesting to note the uneven application of the better safe than sorry principle by employers.

• When it is employees who bear the cost of an OHS intervention (i.e., have their privacy invaded), employers are happy to play by better safe than sorry and not demand high levels of proof. 
• When employers must bear the cost (e.g., face disrupted production or higher material costs) because workers have concerns about unsafe working conditions or materials, employers generally demand very high levels of proof before they will alter their processes. 

This existence of this double standard speaks to which (and whose) interests are prioritized in workplace regulation.

-- Bob Barnetson

Research: Some thoughts on an arbitrator-selection project

A widely held belief by labour-relations practitioners is that a union or employer can influence its likelihood of success at grievance arbitration via arbitrator selection. That is to say, practitioners believe that arbitrators have observable, stable, and significant decision tendencies that affect their chances of winning an arbitration. That’s not to say that facts, evidence, and jurisprudence don’t matter. But a party rarely has much control over these factors (i.e., you have the case you have). What is within a party’s control (more or less) is who hears the case.

“Who you get affects what you get” is an interesting conjecture that, if true, could suggests strategies for parties to adopt to increase their odds of success. Taking this conjecture as starting point, a colleague and I have been working to test whether or not arbitrators have observable, stable, and significant decision tendencies that can be used to predict future decisions. This is a conceptually and methodologically challenging project and I thought thinking aloud about this project might be of interest to SOSC 366 and IDRL 316 students (as well as a useful process of metacognition for me).

Our underlying approach is rooted in social constructivism. This theory, loosely speaking, asserts that there is infinite stimuli in the world. What stimuli we pay attention to and how we interpret those stimuli is shaped by our experiences, values, and beliefs. In this way, we socially construct our world. For example, bosses often frame conflict with workers as rooted in a communication or attitude problem rather than as an expression of conflicting interests.

Social constructivism is, I think, a reasonable starting point for analyzing arbitration decisions. Arbitrators are normally tasked with making complex decisions, often by sifting and weighing evidence and arguments and applying principles and precepts to come to decisions about what has happened and what ought to happen. This kind of work entails exercising significant judgment about what information is important and what it means. While arbitrators carefully apply many useful conventions and tests when making these decisions (e.g., around witness credibility), social constructivism assumes that arbitrators are ultimately relying upon their experiences, values, and beliefs (more on this below) when exercising their judgment.

This approach suggests, to the degree that arbitrators have, among themselves, different experiences, values, and beliefs, they might come to different conclusions in a case when faced with the same information. (There is some research that concludes (1) arbitrators are consistent in the factors they consider their decisions over time, and (2) different arbitrators can come to very different conclusions when deciding identical cases. This research broadly accords with the social constructivist approach we've adopted.)

The nature of grievance arbitration makes it hard to test the “who you get affects what you get” conjecture. Facts, evidence, and jurisprudence clearly affect individual decisions in important ways. The unique nature of each case impedes direct comparisons of decisions rendered by different arbitrators. And, to the degree that social constructivism occurs outside of our awareness, its operation may be difficult to see in arbitration decisions (although I do acknowledge how arbitrators carefully walk readers through the facts and arguments, and their analyses).

A different approach to testing this conjecture (and the one we've settled on) is to look at patterns in arbitrator decision-making over a large number of cases. The idea here is that the unique facts of each case (which will sometimes favour the employer and sometimes the union) will “average out” over a large enough number of cases (>1000 at this point) to create a baseline of wins and losses. Once the dataset is coded, we can then assess:

1. whether there are significant differences in the win-loss ratios (i.e., decision tendencies) among arbitrators and compared to the baseline,
2. how stable these decision tendencies are over time, and
3. the degree to which these tendencies are usefully predictive of future decisions.

I’ve read and coded over 700 awards in the past year or so. The patterns we saw early in the analysis (such as those reported here) continue to hold true. The raw win-loss ratio data is quite stark and, at times, eyebrow raising. This suggests that the “who you get affects what you get” conjecture may have some merit in the sense that some arbitrators seem to have clear tendencies which may make them, from an outcomes perspective, more (or less) desirable as adjudicators for specific cases.

We’ll need to wait until I finish coding all of the awards/decisions before we move onto testing the degree to which past decision tendencies can predict future decisions. That will involve (I think) segregating decision data into two groups for each arbitrator (maybe two thirds as a predictor pool and one third as a test pool) and assessing the degree to which we can, knowing an arbitrator’s win-loss ratio in the predictor pool, predict the outcomes of arbitrations in the test pool. (Obviously, there are many complexities to control for in the analyses, such as differences on which side bears the initial onus of proof and such).

Perhaps the biggest potential critique of this research is the premise that arbitrators’ values, beliefs, and decisions play a meaningful enough role in the outcome of decisions to warrant paying attention to them. You could very reasonably take the position that the impact (if any) of social constructivism would be rendered irrelevant because of the importance of the facts of each case plus the careful decision-making process that arbitrators routinely exhibit.

This view accords with the widely (but not universally) held belief that adjudicators (e.g., judges) are for the most part, neutral actors who are unlikely to be systematically biased in one direction or another. If we set aside, for the moment, that labour-relations practitioners, who have extensive experience with adjudicators, don’t believe this to be true, it is fair to ask if there any evidence that arbitrator bias operates in important ways? (We’re also setting aside the broader literature on bias in other forms of adjudication).

I’ve been keeping a diary of observations during coding. One of the striking things is how few of the 700+ decisions I’ve read where I got to the end and went “yeah, the arbitrator totally blew that call”. I’ve only run across (I think) one case so far where I’ve thought the decision was just clearly wrongheaded. In all of the other cases, the decision (based on the analysis presented by the arbitrator) was plausible (even if, maybe, I might have made a different decision). I don’t know if that pattern reflects that (1) arbitrators are good at getting to a sensible decision, (2) arbitrators are good at writing reasons that justify the decision they’ve reached, or (3) both.

I went back and forth about whether to link to the “you blew it” decision and, in the end, decided not to. There is no reason to dog pile on an arbitrator who made a decision in a complicated case with some ambiguous facts and whose other decisions seem generally fair minded. I mention the case only because it illustrates how an arbitrator’s values, beliefs, and expectations can shape the decision. It is a bit hard to explain this without going into identifying details of the case so you'll have to trust me a bit here.

The case revolved around an assault in the workplace and the worker defending themselves. There was clear and uncontested evidence that the worker had to and had cause to defend themselves: they were assaulted, put in a headlock, and feared for their safety. The arbitrator discounted this evidence and instead blamed the worker for triggering the assault because the worker was inattentive to the assailant’s needs. The arbitrator used the circumstances of the assault (e.g., a vulnerable assailant, moderately ambiguous and inconsistent evidence) to conclude that the worker’s termination was justified. The subsequent dissent by the union representative on the panel was, at the risk of understatement, pretty sharp.

An award that is not plausible is a pretty surprising outcome. Awards are designed to require arbitrators to clearly justify their decisions. This structural feature of awards ought to preclude decisions that clearly reveal arbitrator bias in interpretation of the evidence and drawing conclusions. Basically, the decision ought to be at least plausible on the face of it (and the vast majority are). That we have an example where the arbitrator’s reasoning is just not plausible runs contrary to the purpose of the system, which is to preclude both the fact and appearance of bias.

This is, certainly, just a single case and, Lord Vader knows, I’ve had off days myself. I think the point of it is that this decision is evidence, independent of the views of labour-relations practitioners, that arbitrator bias can occur. (I suspect most often it is harder to detect because the impact of an arbitrator’s values, beliefs, and experiences are less obvious, perhaps being less stark and profound or better obscured by the procedural narrative.

In any event, this case combined with the widespread belief of labour practitioners supports, however tentatively, inquiring into whether arbitrator’s values, beliefs, and decisions play a meaningful enough role in the outcome of decisions using a social constructivist frame. Basically, there’s some smoke here; let's see if there is also fire.

Anyhow, I hope that was an interesting view into how a researcher thinks about research questions before and during the process of collecting and coding data.

-- Bob Barnetson

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

Research: Grievance Arbitration Project

Back in November, I posted a bit about a research project I’m involved with that is looking at grievance-arbitration decisions in Alberta. As of this morning, we’ve coded about 441 decisions by arbitrators (spanning 2006 to 2011) and I’m in a position to talk a bit more about the project and the themes we’re seeing.

When a union and an employer are unable to resolve a disagreement about how the employer has applied the collective agreement (or law, policy, or past practice), they can remit the dispute to an arbitrator for a decision. Arbitration is a form of adjudication akin to the courts. One of the main differences between arbitration and the courts is that, in arbitration, the two parties normally jointly select the arbitrator who will hear the matter (although, sometimes other appointment processes are used).

During the selection process, it is common for a side to internally discuss the merits of proposing or accepting particular arbitrators to hear a matter. This discussion appears premised on the assumption that arbitrators can be (un)sympathetic to certain arguments, evidence, types of grievances, and kinds of grievers. This belief is consistent with a constructivist view of the world, wherein there is infinite stimulus and what one pays attention to and how one interprets that stimulus is driven, in part, by one’s thoughts, beliefs, and expectations.

If the “who you get affects what you get” hypothesis is true, it suggests that identifying patterns in arbitrators’ decision-making can be used to increase the odds of success. This hypothesis (and, if true, the efficacy of various strategies that lever it) is part of what we’ll be examining once we’ve finished coding the dataset (ideally by Christmas 2023, but who knows).

In coding the dataset, we’re assigning the outcome of decisions one of three codes: union win, employer win, or mixed decision. An example of a mixed decision might be a termination grievance. The employer might seek to have the termination upheld, the union might seek to have it overturned and the worker reinstated without penalty, and the arbitrator may eventually decide there was grounds to discipline the worker, but that termination was unreasonable in the circumstances and then substitute some lesser penalty (e.g., a short suspension).

This coding allows us to visually (and statistically, I suppose) represent arbitral decisions like so. Yellow are union wins, green are mixed results, and blue are employer wins.



Note that, in this representation, both the union win and the mixed outcome category result in the worker being better off than they were before the decision. This suggests that looking at the “employer win” category (blue) is a useful way to get a quick and dirty sense of decision patterns.

The graphic above summarizes all decisions. The literature suggests that different types of disputes (e.g., discipline and termination grievances, salary and benefits grievances, grievances addressing seniority, selection, promotion and layoff) will have different win-loss patterns. I have teased apart the data that we have along these lines in the graphic below. Sorry the images are a bit har to read, the lines (top to bottom) are grievances addressing seniority, selection, promotion and layoff, salary and benefits grievances, discipline and termination grievances, and the overall average.



We do seem to see some interesting differences. Note that, in the discipline and termination decisions, the employer typically bears the onus (at least initially) or proving discipline was warranted. In most others kind of grievances, the union bears the onus of proving the grievance should be upheld.

If the “who you get affects what you gets” hypothesis is correct, we should see differences among the decision patterns of different arbitrators. I have presented below a randomly drawn selection of the early data in this regard (carefully anonymized) with the overall average at the top.



What this suggests is that there appear to be large differences in decision outcomes among arbitrators. Two important caveats are worth keeping in mind. This first is that the number of cases in the dataset to date for each arbitrator varies and is, overall, small. Small samples tend to yield swingy numbers, so we shouldn’t jump to conclusions based on a small sample. These differences may attenuate over time as we add cases (although we’re not seeing that yet in the data)

The second is that the facts of each case almost certainly impact the decision of the arbitrator. Our expectation is that, over many cases, differences between cases should attenuate (i.e., wash out) these case-specific differences. Together, these caveats also suggest that eliminating arbitrators with relatively few recorded decisions from the final dataset is likely appropriate.

When we look at arbitrator records on discipline and termination cases (which seem to be the largest single category of cases), we see similarly large differences among arbitrators. I have not visually presented that data, given the small number of cases for each arbitrator.

-- Bob Barnetson

Notice of termination vs severance

One of the challenges of teaching students about interpreting collective agreements is the effect of clauses is often very hard to know because they can interact with other clauses in the collective agreement as well as other regimes of employment law. As part of a research project, I came across a 2011 decision that is a fun read about termination notice and severance pay.

The decision is:

Canadian Energy Workers Association v ATCO I-Tek Business Services Ltd, 2011 CanLII 81659 (AB GAA)

You can find the decision on canlii.org by searching the CanLII number (81659). CanLii is an excellent repository of Canadian law.

The basic facts are these:

• The employer was outsourcing a significant number of positions and this resulted in significant number of terminations.
• The collective agreement gave the affected workers rights to (1) working notice (or pay in lieu of notice) under Article 30 and (2) severance under Article 32 and a Letter of Agreement.
• The union argued that the permanent workers were entitled to benefit from both sets of rights; the employer argued that workers were only entitled to severance.
• (There was a second issue around a worker signing a release that isn’t really all that interesting.)

The union’s argument was (loosely, I’m paraphrasing in the interest of space) notice is designed to give workers a chance to find alternative employment while severance is compensation for their investment in their workplace that is lost upon termination. Essentially, these two are complementary, rather than alternative, entitlements.

The employer’s argument (again, loosely) was that the entitlements are mutually exclusive and applicable in different circumstances and this the benefits do not compound. Reading the provisions as complementary creates an excessive benefit for the workers.

I won’t spoil the ending for you. The panel’s decision flows from an interesting exploration of the purpose of each of the rights in the contract, the language used, and the effect they have for different employee groups. This decision is a relatively simple example of this kind of inquiry, that occurs in many contract interpretation grievances.

The ultimate decision (that I found to be surprising) highlights how parties can negotiate provisions that each finds acceptable without mutually working through the actual operation of those provisions. This can reflect the nature of bargaining (where ambiguous language may be a strategy to, for example, defer a fight), the complexity of language (which can give rise to legitimately different interpretations), and the impact of practical constraints (e.g., bargaining is often done under the gun by very tired people who sometimes make errors of omission).

-- Bob Barnetson

Statutory law versus the collective agreement, a fun example

When we teach HR and LR students about the web of rules that regulate employment, we often focus our attention on the various sources of rules (e.g., common law, statutory law, contracts and collective agreements). This reflects that students need to (1) build a mental framework in order to understand how employment law operates and (2) develop some foundational knowledge of what the rules actually are (e.g., what are the basic rules around firing someone?).

One of the topics that gets glossed over in this sort of introduction is that, sometimes, what the law means (in practice) isn’t clear. Or, at least, an employer and worker/union might have a different interpretation of what the law required or permits. This can reflect legitimate differences of opinion, differing interests, and, sometimes, apparent conflict between rules from different sources of law. In the interests of time (and understanding that a survey course is just an introduction), we tend to wave this complexity aside with “disputes are remitted to an adjudicative body for resolution.”

Sometimes, it is worthwhile having a look at a case to see just how this adjudication works. As part of a research project, I came across an interesting arbitration decision from 2009 that is a fun read. The decision is:

Edmonton Space & Science Foundation v Civic Service Union 52, 2009 CanLII 90156 (AB GAA)

You can find the decision on canlii.org by searching the CanLII number (90156). CanLii is an excellent repository of Canadian law.

The basics facts are these:

• A worker was employed at the Edmonton Space and Science Centre and was a part of a union.
• The collective agreement permitted the employer to terminate a worker only when the employer had just cause. This is much more restrictive than the termination provisions set out in the Alberta Employment Standards Code (wherein workers can be sacked for no reason so long as notice is provided).
• The worker resigned, giving a month’s notice. The employer doubted how diligent she would be in performing her duties during the resignation notice period and purported to terminate her with one week’s notice under the Employment Standards Code.
• The worker grieved that the employer had no right to do so, given the collective agreement limited terminations to just-cause scenarios.

So, we have here basically a fight over whether the collective agreement trumps the Employment Standards Code or vice versa. After listening to the evidence and arguments of the parties (including refereeing a preliminary bun fight, where the employer wanted (among other things) to force the worker to narc out which member of the management team leaked that the worker was getting the sack), the arbitrator distilled the matter down into two questions (he listed three slightly different questions, but they are more granular than we care about):

1. Was the griever terminated without just cause by the employer?
2. Can the employer rely upon the Employment Standards Code to override its obligations under the collective agreement?

I won’t spoil the ending, except to say that (1) the employer’s argument was more inventive that I would have guessed (at the beginning of the decision, I laughed aloud at the employer’s position), and (2) the arbitrator does a good job of walking everyone through his thinking about how these two different sources of rights operate in this particular fact situation and how their seeming conflict can be resolved.

This decision is a good example of how employment-law sausage is actually made when the parties can’t agree and when there are multiple sources of rights that may conflict.

-- Bob Barnetson

Research: Grievance arbitration in Alberta project

I’m presently coding data for a research project examining grievance arbitrations in Alberta. There are some 1000+ arbitration decisions (2006 to present) to read and code before a colleague and I can start the actual analysis. We are presently about 20% of the way through the coding. While we can't tell whether our hypotheses are correct or not (we need a much larger dataset), we do have some initial descriptive data on the 2006-2008 decisions (n=203) to share, for what it is worth.

Sector

Not surprisingly, the majority of grievance arbitration decisions come from the public sector, with the public-service, health care, and education being the most common industries. In the private sector, manufacturing, retail (grocery mostly), construction, and forestry are the industries most frequently represented.



Gender

Most arbitrations are decided by men. Grievers are about equally split between men and women, but the most numerous kind of grievances (typically policy/group grievances) tend to have mixed-gender griever groups.



Type of grievance

The three most common types of decisions about grievances address termination/discipline (30.5%), salary and benefits (22.7%), and procedural wrangling ahead of the substantive issue (15.3%). Disentangling procedural decisions from more substantive ones poses some interesting coding challenges because of how they are inconsistently reported.

Outcomes overall

Overall, employers tend to “win” most grievances (in that they achieve the outcome that they wanted). The pattern (so far) is broadly consistent with the literature.



Looking just at termination/discipline outcomes (the largest category of grievance awards), we see a similar pattern. 



This is a bit surprising, because in most of these cases, the employer bears the initial onus to prove discipline/termination was warranted. This is different from most other grievances (where the union bears the initial onus). Early days though—we may see a shift as more decisions are coded.

--Bob Barnetson