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Originally posted by Michelle:
Both triciamarie and unionist seemed to think this is a bad thing. I'd be interested in hearing pro and con arguments, as it's not something I knew about or have thought much about before.

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A union isn't a lawyer following a client's instructions. It is the collective self-expression of workers, who individually are powerless. Workers band together and give up their individual right to hire lawyers and take employers to court, in exchange for the power that comes with collective strength and action.

If a member could pursue a grievance irrespective of the decision of the collective, then the collective could be harmed. Simple examples include getting bad interpretations of collective agreement language which may then apply to all. Also, workers should not have to fund claims by an individual who can't persuade the collective that the claim is well-grounded.

This doesn't imply a popularity contest, nor that the majority can lord it over the minority. Individuals whose rights have been violated under the collective agreement (or various labour laws) have a legal and moral right to have the union evaluate the chances of winning their grievance based on its merits, irrespective of whether a majority of members want to pursue it or not. But the simple fact that I have an interpretation and I want to pursue it does not in any way bind the union to take up my cause.

The process can also be more complex then simply reading words on paper. Words can introduce ambiguities and the true meaning of the parties can only be found in extrinsic evidence such as what was said and understood at the bargaining table. Other principles may come into play, such as arguments over whether doctrines such as estoppel or res judicata apply.

OPSEU organizing materials -

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Who decides if a grievance goes forward?

OPSEU members have carriage rights—that means the member has the right to make the decision about proceeding with a grievance.

Elected officials and staff of the union cannot tell you that your grievance isn’t ‘worthwhile’. Other unions have a committee or grievance officer at the Local Executive Level. The decision whether to proceed with your grievance may rest there. Or the decision may rest with someone at the union’s “head office” who decides which grievances will be resourced.

The high costs of carrying a grievance to arbitration can also be a factor in deciding whether it will proceed. OPSEU pays for grievance costs out of a central fund. That means that smaller locals or locals dealing with difficult employers don’t have to abandon grievances due to a lack of money.

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http://www.opseu.org/bps/health/community/ccac/pdf/morequestionsanswered.pdf

From an OPSEU regional VP's 2006 newsletter -

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There are some on the board who want to open the entire carriage rights issue and the establishment of Local grievance committees. While I note that a grievance heard in three years is not exactly commensurate with carriage rights, I also know that Local grievance committees can be subject to either real or perceived favoritism. A grievance is the one way that an average member can immediately register dissatisfaction relative to unfair treatment by the boss. To deny that outlet may further marginalize the union in the eyes of peripheral members. I agree with my colleagues that a culture change in the filing of grievances is ultimately necessary, but first we must work to strengthen rather than broaden contract language, train local activists in ERC/labour management techniques, educate employers, make efforts to improve local labour relations

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http://www.opseuregion4.org/

Note the reference to "a grievance heard in three years". That's the main problem with our member carriage rights: a perpetual grievance backlog, currently at over 6,000 unheard cases.

So even if there is not any special wisdom to the selection of grievances by local committee -- and I don't think that there usually is -- now it's a ridiculously overworked grievance officer who's making the decision to either move your case forward or sit on it indefinitely. Either way it's out of the member's hands.

NB A big part of that backlog is classification grievances since, after Mike Harris, Ontario crown employees are no longer able to grieve our rate of pay or job duties. That's the bigger enforcement issue for OPSEU, I believe -- no control of our work.

[ 18 March 2008: Message edited by: triciamarie ]

In that case I think past experience with our local at the Board had a bearing on the Board's decision. We had had a history of oddball Presidents in our little union (it was a union with 2 locals) and the previous matter of dispute involved a former local/union President who had taken the union to the Board on what we saw as a frivolous matter. The Board agreed with us in its decision.

The second time at the Board, (see the first paragraph) this time involving the dismissal of the union President, the Board viewed more seriously and, as I noted, felt that we should take the matter all the way to arbitration. So we did. The members directed me to conduct the case.

The case took place late in the year and the Arbitrator made his ruling a week before Christmas. Of note, the employer offered a 4-figure sum for us to drop the matter after the hearing was over but before the Arbitrator made his ruling. Frankly, if I was the griever I would have taken the money, and I advised him so, but he was a bull-headed sort of guy who was out of his depth and wanted "his day in court" if you know what I mean. He rejected the money and waited for the Arbitrator's ruling. However, I am happy to report that he was satisfied with my conduct of the case, and told me so, as was the Board.

The griever lost and it was my only loss at the Arbitration Board (not that I had very many: 3 wins and 1 loss I think).

The Board, I think, acted like a judge that wanted justice to be seen to be done. They knew our little local and some of the rather amateurish and strange goings-on that had happened in the past. So perhaps they just weren't taking any chances. The griever had a large unexplained cash shortage which, given his sensitive position handling a lot of money, was too serious too resolve with a lesser penalty.

I agree with the general principle of the union itself having what has been called "carriage rights" in this thread. However, members need to have some remedy when they dispute the decision of the union without, however, this being a cover to waste the time and/or the money of the union.

In the case above, the MLRB corresponded with us in the local, a few phone calls perhaps, and that was it. While we objected to the Board's decision, these initial steps weren't particularly time consuming or expensive. The members decided to send yours truly to conduct the case, which I viewed as an opportunity to get an education, and saved some more money in that way. I guess that was my 15 minutes of fame. Heh.

The Board used its experience/discretion to evaluate the situation but I expect that if I had dotted all the "i"s and crossed all the "t"s then they would not have had any reason to order us to go ahead with the case. Perhaps the Board had its own interests - not wanting to see this matter at a higher level in the legal system - and knew that there could be worse things than an unnecessary Arbitration.

So, a week before Christmas, we were informed by the Arbitrator that we had lost. The four figure sum was off the table, of course, and the griever got nothing. I can't imagine Christmas in his house.

Supplemental: by virtue of spending so much money at a particular Winnipeg law firm, for advice and for case law and coaching of yours truly, I got invites to a regular union bash that took place in those days. At this regular bash I met my girlfriend of 10 years. She and I aren't together anymore but we are, most certainly, friends for life. Life is like that sometimes, eh?

[ 18 March 2008: Message edited by: N.Beltov ]

http://www.nathannewman.org/laborblog/archive/003635.shtml

Short of that you can also get your garden-variety situation of union officials in bed with management, making detrimental decisions in order to gain access to more dues-paying members and/or secure their own tenure, perks etc. I would put the CAW Magna deal in that category (although probably not as bad an example as I once thought).

Personally my concern comes in on the level that unions mostly give lip service to wanting the membership to be involved and it's all hogwash. An involved membership is a pain in the ass for the leadership. They're making demands, they're asking questions, having opinions, taking up the staff's time, disagreeing, wanting more, keeping the executive on their toes, following the money, maybe competing for executive and staff positions. It's all much easier when members just pay their dues and give up a strike mandate every three or five years on demand. That's a caricature, but I do see that as the general dynamic, or one of them.

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Originally posted by triciamarie:

Note the reference to "a grievance heard in three years". That's the main problem with our member carriage rights: a perpetual grievance backlog, currently at over 6,000 unheard cases.

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