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  • authored by lefkenny
  • published Thu, Apr 11, 2002

Do probationary employees have the right to grieve?

Do probationary employees have the right to the grievance process in Canada? Here is a quote from this article.

quote:


I. PROBATIONARY EMPLOYEES
Most arbitrators have found that probationary employees can take advantage of union representation clauses. If they have access to the grievance procedure, they can complain that they did not have proper representation and have the original discipline overturned. The practical result, though, is that when an employee is reinstated, he/she is still on probation. Many collective agreements allow termination of a probationer for any reason, as long as the decision is not arbitrary, discriminatory, or in bad faith. As a result, it is likely that an employer would be successful in trying to re-discharge a reinstated probation employee.


Probationary employees

Legal_Beagal in another thread said that the right of probationary employees to grieve was decided nearly a decade ago with Cessair Asbestos.

Legal_Beagle says

What are the straight goods today?

About unions

  • posted by lefkenny
  • Fri, Apr 12, 2002 12:20am

Where can one find this info on Cassiar Asbestos?

about unions

  • posted by globalize_this
  • Fri, Apr 12, 2002 8:33am

Cassiar is an old a BCLRB case (from 1975, I believe). Unfortunately, their web page only publishes decisions after Jan. 2000. However, it also suggests the following:

quote:


* Only decisions issued as of January 1st, 2000 will be listed on this web site. Decisions prior to 2000 can be viewed from a number of sources. They include:

Labour Relations Board Library, 8th floor 360 West Georgia Street, Vancouver

Canada Law Book (official publisher), 1-800-263-2037

Vancouver Public Library

Vancouver Courthouse Library

Electronic access is available from Quicklaw but this is not a free service, (604) 684-1462


  • posted by weiser
  • Fri, Apr 12, 2002 9:43am

This is old stuff, but you'll see that the BC Labour Code incorporated this concept after the Cassiar decsion.

What's sick about the denial language still remaining in the UFCW agreements is that the language has been a lie for just about 20 years and still the UFCW agrees to leaving it in their agreements. I say agrees because the employer cannot demand its inclusion because that would contrevene the Code.

quote:


Arvo John Salo -and- Steelworkers, Local 7884
Citation [1984] B.C.L.R.B. 136-39
Court L.R.B. 164/84
Panel P.R. Sheen D. Hanson D.J. Bell
Date April 24, 1984
...Even if the complainant were a probationary employee, given Cassiar Asbestos Corporation, BCLRB No. 165/74, and the provisions of Articles 7 and 14.02 of the Collective Agreement, the complainant had access to the grievance and arbitration provisions of that agreement....

_______________________________________________
Vancouver Talmud Torah Association -and- Talmud Torah Teachers Association
Citation [1981] B.C.L.R.B. 140-01
Court L.R.B. L65/81
Panel G.M. Somjen
Date April 10, 1981

An employer cannot insist on a clause that denies the right of an employee to a grievance and arbitration procedure concerning discharge and discipline. Insistence on a provision which precludes the referral of disputes regarding dismissal to arbitration procedure would be bargaining in bad faith.

...The Board agrees with the Union's submission to the extent that the right of an employee to the grievance and arbitration procedure in the event that the employee feels he has been treated contrary to the collective agreement cannot be excluded by agreement of the parties. This was established in Cassiar Asbestos Corp., B.C.L.R.B. Decision No. 165/74, [1975] 1 Can LRBR 212 and is also evident from s. 93 of the Labour Code which provides that discharge may only be for just and reasonable cause. The portion of the clause sought by the Employer which precludes the matter from being referred to arbitration is contrary to the Labour Code and cannot be insisted on in collective bargaining. This does not mean that the parties cannot agree to certain fact situations which will amount to just cause for dismissal. For example the parties can agree to lay off provisions which may effectively terminate the employment of an employee. Such actions of course are also subject to grievance and arbitration. The Board finds that insistence on a provision which precludes the referral of a dispute to the arbitration procedure would be bargaining in bad faith....


  • posted by lefkenny
  • Fri, Apr 12, 2002 10:30am

How relevant is this precedent setting case (Cassiar Asbestos Corp., B.C.L.R.B. Decision No. 165/74, [1975] 1 Can LRBR 212) to B.C and other provinces? Each province has its own Labour code in one form or another including the Industrial Labour Relations Act.

In reading several cases from B.C., the arbitrators cites the relevant articles of the collective agreement and not the above said case.

Has the deterioration of members rights only been perpetrated by the collusion of both union and managment across this country?

I was even surprised to learn that a silent grievor is interpeted by arbitrators to have meaning.

This leads me to believe more deeply in educating all members indepth to the legalities of filing grievances and all implications thereof. I am also convinced that unions should employ lawyers outside of the union to try and prevent any impropriety of an individual members rights.

To date I have not seen a contract that allows probationary employees to file grievances or have access to the arbitration process. It is so sad that we are forced to accept management's interpetation of just cause. Even before I knew of anything about labour law, it always bothered me that probationary employees had no rights according to the collecive agreement. Then there are they poor temporary and casuals who usually are the the mercy of everyone. Most have to pay union dues but get nothing in return.

about unions

  • posted by weiser
  • Fri, Apr 12, 2002 11:06am

about unions said:

quote:


This leads me to believe more deeply in educating all members indepth to the legalities of filing grievances and all implications thereof. I am also convinced that unions should employ lawyers outside of the union to try and prevent any impropriety of an individual members rights.

To date I have not seen a contract that allows probationary employees to file grievances or have access to the arbitration process. It is so sad that we are forced to accept management's interpetation of just cause. Even before I knew of anything about labour law, it always bothered me that probationary employees had no rights according to the collecive agreement. Then there are they poor temporary and casuals who usually are the the mercy of everyone. Most have to pay union dues but get nothing in return.


Unions don't need lawyers as much as they need trained and qualified Business Agents. The buggers get paid $70 to $80 thousand to do what? They are supposed to be able to go head to head with a top-notch lawyer. Lawyers are for court and for very complex legal arguments at arbitration.

If a business agent hasn't given a lawyer a kick in the pants or at least a good run for the money, the Business Agent should be at bottom rate. Most of the Business Agents and Executive Assistants are unqualified to collect the paycheques that they do. Some are damned good, but they aren't in the stores, warehouses and plants.

It's damned hard for a probationer to win a grievance, but employers are bound by a set of rules for managing a probationer's trial period. If an employer sits in the weeds and waits to the last day of a probationary period to give a probationer the boot, then the union has a case.

That being said, given that the rights of probationers has been around for nearly two decades, what the heck is wrong with a union that still has that language. Even if it was legal, you'd expect the issue to have surfaced at bargaining a few times over the past 20 years.

The union has no problem raking in the probationer's dues from each paycheque, but can't be bothered to ensure that the probationer knows his or her rights or that she or he actually does have access to the grievance procedure.

In answer to dougle in another thread, the UFCW bargains contracts, which fool members into thinking they have no rights when they do indeed have rights under the law. To knowingly bargain language that is contrary to law is despicable. To be ignorant of such a law is outrageous.

  • posted by lefkenny
  • Fri, Apr 12, 2002 11:19am

Can unions force probationary employees to sign "last chance agreements"? Are last chance agreements that prevent a member from having access to the arbitration process even legal?

about unions

  • posted by weiser
  • Fri, Apr 12, 2002 11:29am

You can't take away a persons statutory rights. The last-chance agreement may prevent someone from winning, though. In the face of a last-chance agreement, the union is within its rights to refuse to take the grievance to arbitration. There is no law anywhere that requires a union to proceed to arbitration as long as they have not been arbitrary, discriminatory, capricious or acted in bad faith.

  • posted by lefkenny
  • Fri, Apr 12, 2002 11:47am

Weiser said

quote:


Unions don't need lawyers as much as they need trained and qualified Business Agents.


I agree from my experiences with business agents that they are far from the best representation a member deserves. However, whether it is a union lawyer or a union rep, they appear to be biased towards the "union" position rather than the member position.

If we educated members indepth and used lawyers from outside legal firms, we may have unbiased representation in favor of members and not the bizz unions. This was my point I made above. The present system of representing the members interest is inadequate as some of us know, but some unions like MGEU have adopted consultation of outside legal firms. Some recent thought in the legal system is debating the interests of a member against that of the union as a whole. If this becomes precedent setting, bizz unions may have to find another way to thwart members grievances.

about unions

  • posted by remote viewer
  • Fri, Apr 12, 2002 1:31pm

An excerpt from Canadian Labour Arbitration, Brown and Beatty, Third Edition:

quote:


7:5000 Probationary Employees
Apart from matters of discharge, arbitrators are agreed that, unless the collective agreement provides otherwise, probationary employees are entitled to all the rights stipulated in the agreement that inure to the benefit of employees. More specifically, in the absence of a provision in the agreement to the contrary, arbitrators have held probationers to be entitled to grieve, to avail themselves of the procedural protections pertaining to discharge, demotion, and redundancy, sick pay, cost of living allowances, statutory holiday pay, cost of living allowances, statutory holiday pay, hospital and medical benefits, pension contributions, and overtime assignments, and to be included on a preferential hiring or recall list. Furthermore, it has been held that even though the agreement may deny a probationary employee any seniority rights during the probationary period, where she has more qualifications on a particular job than a seniority-rated employees, it is not a violation of the agreement to retain her while seniority-rated employees are on lay-off.

However, with respect to matters of employment security generally, and discharge and dismissal in particular, the status of the probationary employee has been uniformly regarded by arbitrators as being more vulnerable than, and to be distinguished from, that enjoyed by seniority rated employees. Although arbitrators have differed as to precisely what rights, if any, probationers enjoy with respect to their security of employment, there is a firm consensus that, from the very nature of a probationary period, such persons cannot expect the full and unqualified protection provided by the just cause provision which is enjoyed by those employees who have competed their probationary period. That is, and apart from any specific clauses in the agreement, virtually all arbitrators now accept the rationale, for, and the legitimacy of, the probationary status as being like an apprenticeship, a learning experience and a period of time during which the employer is free to assess the full potential and capability (the suitability of such persons in the broadest sense) of both new employees and employees who have not worker for a period of time. However, at least one arbitrator has stated that newly hired employees must be given a bona fide opportunity to be considered for permanent employment...

From the general premise underlying the purpose of the probationary status, it follows, at least on the issue of termination of employment, that unless the collective agreement provides otherwise, different tests and standards must be applied to probationary employees than those which are invoked in reviewing the propriety of the discharge of a seniority-rated employee.

In British Columbia, several arbitrators have held that the termination of probationary employees cannot be put beyond the reach of arbitrators, although different standards can be specified in collective agreements.


  • posted by weiser
  • Fri, Apr 12, 2002 2:35pm

Here's what the BC Labour Code says:

quote:


Division 3 — Collective Agreement Provisions

Dismissal or arbitration provision
84 (1) Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.

(2) Every collective agreement must contain a provision for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes between the persons bound by the agreement respecting its interpretation, application, operation or alleged violation, including a question as to whether a matter is arbitrable.

(3) If a collective agreement does not contain a provision referred to in subsections (1) and (2), the collective agreement is deemed to contain those of the following provisions it does not contain:

(a) the employer must not dismiss or discipline an employee bound by this agreement except for just and reasonable cause;

(b) if a difference arises between the parties relating to the dismissal or discipline of an employee, or to the interpretation, application, operation or alleged violation of this agreement, including a question as to whether a matter is arbitrable, either of the parties, without stoppage of work, may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference to arbitration, and the parties must agree on a single arbitrator, the arbitrator must hear and determine the difference and issue a decision, which is final and binding on the parties and any person affected by it.


In short, I interpret this to mean that you can really limit the employees ability to fight his or her employer, but you can't take away the right to arbitrate should the union wish to do so.

  • posted by lefkenny
  • Sat, Apr 13, 2002 9:44am

LCA's or Last Chance agreements as they are called. What are they?

Well as far as I know they are an agreement between an employee and the employer. It has been labeled "the last resort for employees". Well it may very well be used for that purpose by some and in other ways by yet another group.

Our collective agreement (CA) should protect us from discipline without just cause. LCA's are alleged to be used when an emplyee's actions have already given the employer ample reason for termination for just cause. Although who decides when just cause has been fairly reached. Usually an arbitrator, so why accept the employers opinion. That is why we have arbitration or do we?

Unfortunately, some unions and employers seem set on stripping members right to arbitration with the LCA. I have always believed that no matter what, a member at least deserves the right to arbitration regardless wether there is a signed LCA. I do not trust a union that writes away a members right to arbitration in the LCA. Is this benefiting the member or the union and managment?Far too often I have heard other members say so and so was this and that and deserves what he got. Even though I consider myself a hard working employee, I hate to hear such condemnation of fellow members. Some day it may accidently be the accuser facing the guilitine. If employers were so great with discretion there would be no need for unions.

Secondly, I believe that we pay dues to be represented and I expect all members to be affored all the rights of representation before them. For unions and employers to write into LCA's that employees give up their right to arbitration just so that they can all save money is intolerable. Is this happening in your union too?

If you would like more info on LCA's you may purchse this book

Last Chance agreements: When and how to use them

by Cynthia L. Field
LRP Publications

or check out the link below for some ideas to look out for

Notes on Last change agreements

about unions

  • posted by donseaquist
  • Sat, Apr 20, 2002 10:56pm

One of the problems with probationary employee contractural language is that the employer is continuing to try and negotiate longer probationary periods. That is a mandatory subject of bargaining and must be hardfought by the union bargaining committee. If an employer can't figure out that a person is in the wrong position after 30 days they aren't doing their job right.

In my UFCW local,probationary employees do not pay dues/initiation fees until successfully completing this period.

  • posted by lefkenny
  • Sun, Apr 21, 2002 12:27am

quote by Donny

quote:


In my UFCW local,probationary employees do not pay dues/initiation fees until successfully completing this period.


Question or two for Donny

Even though probationary employees do not pay dues are they given full representation as would an employee off probation?

How long is the probationary period in your local?

Are probationary employees allowed to attend union meetings even though they do not pay dues?

Are there initiation fees in your local and if so how much?

How much dues does an employee just off probation pay and how is it calculated?

aboutunions

  • posted by BillPearson
  • Mon, Apr 22, 2002 4:00pm

About Unions: I was surprised to see Don on this site, but i've encouraged staff to see what MFD is about. In fact, we may try and mirror this discussion format in the next month on our YOUAREWORTHMORE site. Here's the answers to your questions:

Are probationary employees given full representation? NO. Our contracts have various applications, but most have exclussions for specific articles. The most obvious is the one covering termination. This means an employee can be let go for any reason. Over the years we've had employers argue a probationary employee is not covered under the contract at all untill they complete probation.We've sustained our position that unless there is a specific exclussion, all other protections are in place and we enforce them. IE: Hours guarentees, job bidding, holiday pay, etc.

How long is the probationary period? In most cases its 30 days. Our nursing home contracts are usually 60 days and there are a few that have 90 days.

Are probationary employees allowed to attend Union meetings? They are not only allowed, but encouraged. At our recent grocery and meat ratification meetings, we wanted everyone working to come. They obviously can't vote, but are welcome.

Are there initiation fees? Yes. We have always tried to balance initiation and dues on how much workers make and what there benefit package is. Our carry-outs are the worst paid and least benefitted so we have a $15 initiation fee and dues of $2.50 a week. Part time grocery are at $60 initiation and dues of around $5 a week. Full-time grocery and meat initiation fees are $150 to $200 and dues are between $8 and $11 a week. Our nursing homes have lower dues and initiation fees. Starting wages are around $10 an hour with top end at $14 to $16.Unfortunately, we've always put the money in wages and not benefits, so we try to keep the dues between $18 to $22 a month. We also have several other contracts and try to balance both dues and initiation fees on approximately twice the hourly rate, though its not a steadfast rule. We have a dues and budget committee that makes recommendations to our e-board. Then it is brought before the membership to vote. Even in the case of a mandatory increase from the International, we print the increases in our union newspaper and ask the members to vote on them.

How much does an employee just off probation pay and how is it calculated? The amounts are printed above, but we break it down into small increments so we don't leave the member too short in any given pay period.

  • posted by lefkenny
  • Mon, Apr 22, 2002 6:03pm

Once again my hats off to you Brother Bill. Damm this is no fun. Just Kidding. Thank you for the answers. Perhaps Donny needs a little more encouragement from you to participate. It might be interesting to know why he did not feel confident to answer! Is Donny part of your executive? Tell him I will take it easy on him, its the tops guys you have to keep honest.

I was mentioning you to a friend of mine over coffee and I had thrown the question out- I wonder what Bill meant when he said and I paraphrase "I'll probably get a phone call from International over this"

Does International really phone you and give you what for for speaking your mind?

I admire the fact that against great odds sometimes, you keep hanging in there. That doesn't mean I'm letting you off the hook either all the time. Someone will think you are paying me off. Ha Ha Ha

aboutunions

  • posted by BillPearson
  • Mon, Apr 22, 2002 9:11pm

About Unions: Don is one of the top guys(check our site UFCW789.org for more details). All of the staff are able to decide what is right or wrong for themselves. I thought I would jump in with the answers, though i'm sure he would have in time.

As far as your question about what i meant about getting a call from the international, let me respond with my opinion. I expect this site is followed by any number of UFCW officials who are not happy with my presence. To their credit, no-one has called and said I shouldn't be here. I've never been shy about many of the same issues raised on this site. My choice is to deal with these matters in a more private manner.

The fact is, when some of us who are pro- UFCW are willing to come and engage others in this venue, I think it brings credebility to the UFCW as an organization who is willing to openly confront the problems. The solution is'nt in lawsuits and threats. It's in recognizing it's shortcomings and strengths and and then changing what we can and building on what we do right.

As you've noted in my posts, i've tried not to openly attack others,i have'nt always been successful. Over the years i've found i have far better success when I can be positive rather than negative. That's just a matter of style(and class), but to each his own. Ultimately the labor movement and more specifically the UFCW has to be more than it is today. Without regard to what organization, we are losing the battle. Workers get screwed, we can change that,,,, and i do mean we.

  • posted by globalize_this
  • Mon, Apr 22, 2002 10:53pm

quote:


The fact is, when some of us who are pro- UFCW are willing to come and engage others in this venue, I think it brings credebility to the UFCW as an organization who is willing to openly confront the problems. The solution is'nt in lawsuits and threats. It's in recognizing it's shortcomings and strengths and and then changing what we can and building on what we do right.


Bill, I think we all benefit from your presence here. I am sure you are not the only UFCW official trying to run a corruption-free, democratic and forward-looking local. But I think your actions suggest you are definitely on the cutting edge of the union right now. I hope you keep it up.

What I think is particularly amazing about this site as a platform for union reform is its dynamic nature. Clearly, the people maintaining this space have their own agenda of sorts, and they're quite open about it. But this site is a lot more than just a simple statement of one or a few people's ideas about where the union movement should go, posted for everyone else to either sign up with or to reject. Instead, like the marketing gurus say, this site is a conversation, where a number of people coming from different places, with different perspectives and different ideas meet and interact. And the synthesis of all these diverse voices is much more than the sum of its parts.

I think that a progressive, but pro-UFCW voice can be an important part of this mix, and I welcome and look forward to hearing what you, your staff and your members have to say. I know you've changed my opinion about some things. I don't think I'm the only one who can say that. It's amazing to me how much that just the tone of our interaction has changed from the original tiff on retailworker.com that brought you here.

As for some of the other interactions some members of this site have had with union officials, I can only say I think that lawsuits and threats are the ham-handed tactics of a scared bureaucracy desperate to hold onto power, and using the only tools they know how to. But this top-down, accept-no-dissent "leadership" style just doesn't cut it anymore. Declining union membership rates and the increasing restlessness of those who have stayed reflect a radically changed environment. Old school "business union" styled leaders are finding that the foundation of their power is now nothing more than a hill of sand, and the next strong gust may well knock them on their ass.

I think the only answer for our situation can be ongoing, active dialogue. The tone may sometimes be quite shrill (I know it gets that way here), but at least you're communicating. And the basis of communication is sharing knowledge. Knowledge empowers workers, and an informed, vocal, militant membership base can strengthen and transform their unions, and win big victories in their workplaces. I applaud you and your staffers for engaging in this dialogue with us dissenters, and I hope that more open-minded "official" types from other sections of this union will eventually join us here, too. I don't really know whether the end result will be a reformed UFCW, an entirely new union or network of unions, or something in between, but I'm looking forward to finding out.

P.S. I realize that this is now waay of the topic of probationary employees' right to grieve. Sorry. But I've been waiting for a while for the opportunity to say the things I've just said.

P.P.S. I think the idea of a discussion board on the You Are Worth More website is an excellent idea. I'd like to see this technology used more for organizing purposes as well as for dealing with internal union democracy issues. The UBB format here on the MFD site seems to be one of the most user friendly ones I've dealt with. But if you haven't done so already, you might want to put your webmaster in touch with slek, as I am sure he is full of good ideas on the subject.

  • posted by lefkenny
  • Mon, Apr 22, 2002 11:49pm

quote by GT

quote:


P.P.S. I think the idea of a discussion board on the You Are Worth More website is an excellent idea.


Hey if unions use it to allow members to discuss probationary employees right to grieve, why not. However, how many unions are going to hide the forums behing e-walls and secret codes, that a lot of members can not even search to find. Sure the unions can boast now about having forums, but check to see how many members contribute. Besides what a great oportunity for unions to have control over what is said and who says it. Members are afraid to post in this non official affiliated union site for fear of repercussion, never mind posting in your own union forum.

I ask Brother Bill to tell all his members of this web site address. Other unions and local could post here as well.

We are supposed to vote in a neutral, public, safe place. Why not post in a neutral, public safe site?

They, including Brother Bill will not do it tough, and lose a power base. I am sure if anyone would, it will be Brother Bill who does tell his mmebers, but I won't hold my breath. Maybe Brother Bill will prove me wrong, but we will see. Here is an open forum for members of UFCW 789.

REFORM TO ME MEANS GOING TO THE EDGE AND OVER,
TAKING THAT EXTRA STEP MOST ARE ARAID TO.

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