The Aggrieved Librarian: Enforcing Workplace Rights through the Collective Agreement

29 Oct

[Report from Patti Ryan on the CAUT Librarians workshop she attended in Ottawa on 28-29 October 2011, “The Aggrieved Librarian: Enforcing Workplace Rights through the Collective Agreement.” See also part one and part two of a report at the University of Toronto Academic Librarians’ site.]

The purpose of this conference was to provide participants with an introduction to the enforcement of librarian workplace rights, and to deepen their understanding of the grievance arbitration process. The conference comes at a critical time for academic librarians in Canada, many of whom are collectively and individually grappling with forces that are undermining the work of academic librarians, and have contributed to the de-skilling, downsizing, or outright elimination, of librarian positions in institutions across the country. The plenary presentations, small group discussions, role-play exercises and question and answer sessions that were adeptly woven throughout the two-day conference can be broadly categorized into 3 themes: 1) the historic and current legal framework of grievance arbitration in Canada, 2) the processes and procedures related to grievance arbitration and 3) the relevance of the grievance arbitration process in academic librarianship.

1. Historic and Current Legal Framework of Grievance Arbitration in Canada

Michael Piva, CAUT Assistant Executive Director gave the first plenary presentation, in which he discussed the historic development of the right to grieve in Canada, the legal and operating definitions of a grievance, key legislative milestones, and the role that associations play in advancing grievances. Piva, a labour historian, noted that while the 1873 Trades Union Act acknowledged the legal right to bargain collectively, it offered no legal framework for the enforcement of collective agreements, and resulted in a “epidemic” series of grievance strikes in the years leading up to WWII. In 1944, an order by Privy Council (PC 1003) by the Mackenzie King government introduced compulsory recognition and bargaining, setting the groundwork for the current legislative framework of grievance arbitration in most provinces. Piva reminded the group that the grievance arbitration process is a mechanism for addressing any violation of the legal terms and conditions of employment (e.g. labour law, human rights legislation), even when collective agreements are silent.

Following up on these themes, Mariette Pilon, CAUT General Council, gave a brief presentation in which she explained the role of labour boards and arbitration tribunals, and the concept of the association’s “duty of fair representation.” She explained that labour boards have a direct role in arbitrating certification processes, overseeing the classification of new positions, and ensuring that there are “statutory freezes” on employment conditions during bargaining. An important part of her discussion for me was her elaboration on the association’s “duty of fair representation”, set out in Ontario’s Labour Relations Act, which requires that an association “shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit.” She stressed that this does not mean that the an association is obliged to file grievances arising from member complaints that do not appear to represent a violation of the collective agreement or the conditions of employment, but rather, that such complaints must be investigated fairly and carefully.

Peter Simpson, CAUT Assistant Executive, led two plenary discussions that dealt with two issues of particular importance to attendees: “member to member” disputes and negotiated settlements. Simpson took great care to emphasize that in the case of “member to member” disputes (which are most often, though not always, associated with bullying or harassment) the grievance arbitration process focuses exclusively on the Employer-Association relationship, and on violations of the conditions of employment between these two parties. Put more simply, “member to member” grievances technically do not exist with respect to collective agreements – the grievance always centres on the Employer’s responsibility to provide (or its failure to provide) for a safe and healthy workplace. Simpson also reiterated that the role of the association is not to “take sides” in member grievances, but rather, to respond to members’ complaints seriously, and to ensure that every member is represented fairly in a grievance arbitration process.

In his second address on negotiated settlements, Simpson discussed the benefits and risks of negotiated settlements, and the factors to consider when deciding whether to settle or grieve. These include: a knowledge of how similar cases have been dealt with in arbitration or in a settlement, the specific strengths and weaknesses of the case, and thinking through how the Employer might view the case (including possible remedies). One of the most salient parts of his talk for me was his reminder that librarians should understand the grievance process as a restorative rather than a punitive dispute resolution mechanism. He reminded participants that the grievance arbitration process is designed to solve real and usually unintended problems that arise in the contractually-negotiated conditions of employment, and is not merely a mechanism for “punishing” en employer or seeking vindication for personal and professional injury. Moreover, he suggested that the grievance process provides for more formal and transparent mechanisms for gathering and uncovering information that is relevant to the nature of the complaint, which is not always the case in negotiated settlements between individual members and administrators.

2. Grievance Arbitration: Processes and Procedures

Throughout the conference, participants engaged in small group discussions and interactive role-play exercises that were designed to deepen our understanding of how the grievance arbitration process actually works. Participants worked with a fictional story line that developed gradually over the two days, and worked with partners and in small groups on role-play exercises. These exercises forced us to think through the various stages of a grievance, and to consider the unique roles and responsibilities of various parties which are often involved in a grievance (e.g. the grievor, the grievance officer, library administrator(s), HR personnel). Particular attention was given to the early stages of a grievance investigation such as the first conversation between a grievor and a grievance officer, and the steps that a grievance officer might undertake in an investigation. I found these exercises challenging but quite fascinating, and helpful in thinking about how both the employer and the association might approach the process, and what factors should be considered in the decision to grieve, and in the complaint investigation. The exercises also addressed some important procedural considerations — e.g. timelines, privacy and confidentiality issues, and strategies that grievance officers might employ during the information gathering stage.

3. The Relevance of the Grievance Process in Academic Libraries

Doug Vaisey, a reference Librarian and grievance officer at Saint Mary’s University presented a summary of some preliminary findings from his recent survey of 219 academic librarians on grievances (his results will eventually be available on the CAUT website). One of the more interesting findings is that while 62.5% of respondents have been tempted to file a grievance, less than 24% have actually done so. Respondents cited a number of reasons for the reluctance to grieve including: fear of reprisal (particularly informal measures such as being overlooked for future opportunities, projects, or arbitrary work re-assignments) lack of solidarity among members, management style, and the service-oriented nature of the library profession (i.e. reluctance to engage in a process which might have an impact on front-line services). The most common themes associated with grievances or the desire to grieve are: lack of collegiality, academic freedom, and workload.

The final group session provided an opportunity for participants to talk with each other in small groups about the state of grievance handling at their institutions, and to talk more generally about protecting the rights of academic librarians. The discussion in my group confirmed some of Vaisey’s initial findings: many librarians spoke about feeling frustrated by structural problems and governance problems at their own institutions, but do not believe, or are unsure, that the issues can be addressed through grievance arbitration. Most participants agreed that the conference has been useful in thinking more carefully about how the grievance process might come into play in some of these situations.

I am grateful to YUFA for the support provided to attend this very valuable conference.

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