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Correction Officer Chad Cantu |
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Correction Officer Joan Schumann |
Responsible to represent all OCSEA members and fair-share employees who work between the hours of 7:00am - 4:30pm.
GREIVANCE HANDLING
The negotiated contract (or work rules) is the union steward’s most important document. It contains the wages, hours, working conditions and rights of bargaining unit employees. But management sometimes “forgets,” or “misinterprets,” or ignores what they agreed to at the bargaining table. To help address these management violations of employee rights, the contract also contains a grievance procedure (or, in areas without collective bargaining, the work rules may contain a grievance procedure).
The Grievance Procedure
Grievance procedures contain a series of steps. While contracts and work rules differ in the number and specifics of these steps, here is a common approach:
Step 1: Typically, this is a meeting — with the immediate supervisor and the grievant participating — to discuss the problem. Sometimes this is an informal step that takes place before a written grievance is presented to management. In other instances, the formal written grievance is initiated at this step.
Steps 2 to 4: The written grievance, when it is not satisfactorily resolved, can be appealed to progressively higher stages of the management structure. (If not submitted at Step 1, the written grievance is initiated at Step 2.) Typically, these might include a department director, a division head, and the agency administrator.
Arbitration: If the grievance is still not resolved, the final step is a hearing with a professional arbitrator whose decision is final and binding — if that is what is
specified in the contract.
A Five Step Approach To Grievance Handling
Almost every work day stewards hear gripes and complaints about something on the job. To help determine whether or not these are legitimate grievances, there is a five step formula that you can follow when handling any workplace problem or complaint that may be grounds for a grievance:
1) Identification
2)Investigation
3)Documentation
4)Preparation
5)Presentation
Step 1: Grievance Identification
Know the definition of a grievance found in the contract or work rules. In addition to stating what a grievance is (as an example, “any dispute over the interpretation or application of the agreement”), there may also be some contract provisions that are excluded from the grievance procedure.
Armed with this basic information, you should next answer the following questions:
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Did management violate any of the following? |
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The contract |
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A work rule or regulation |
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A policy or procedure |
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Any federal, state, county or municipal law |
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Any health and safety regulation |
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Past practice (see below for more on this topic) |
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Did management’s action constitute unfair or disparate (unequal) treatment of an employee or group of employees? |
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Did management engage in discrimination or harassment? |
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Did management take disciplinary action against an employee or group of employees? |
If the answer to any of these questions is “Yes,” there is a good chance that grounds for a grievance may exist.
Past Practice
In general, a past practice is not covered in the contract but, over time, has come to be accepted as an employment condition. To cite “past
practice,” these four elements should be present:
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A Clear and Consistent Course of Conduct: The practice has to be normal activity. Past practice cannot be based on vague activity or occasional lapses in the usual way of doing business. |
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Activity Over a Reasonable Duration: The phrase “reasonable duration” is subjective and indefinite. Therefore, the decision of whether a practice has gone on “long enough” is left to the arbitrator on a case by case basis. One or two occurrences a year won’t be considered consistent over a reasonable duration. However, the same activity repeated once a week for five years might be. |
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Full Knowledge: Both parties, management and the union, must know the practice exists. This does not have to be officially stated or recognized, but it does have to be verified. |
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The Contract Is Silent or Ambiguous: Where the contract is silent on the activity, the practice may be considered to be an implied term of the contract if all of the above elements are present. Where contract language is vague or ambiguous, it is implied the two parties intended the activity to be covered by the contract. Arbitrators look to the past practice to determine the intent of the contract. |
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An Example of Past Practice
Scenario: At a state hospital, the workday in the Grounds Department ends at 4:30 p.m. Every day at 4:15, the workers return to the building where the tools and equipment are kept, which also houses the supervisor’s office. They clean up before they punch out for the day and go home. Though there is no language in the contract covering “wash-up time,” this practice has been going on for as long as anyone can remember.
Conclusion: All four past practice elements are in place — consistent activity, lengthy duration, knowledge of the parties and a silent contract. Should management decide to change the practice, the union would have solid grounds for filing a grievance based on past practice.
Step 2: Grievance Investigation
Investigation of a problem or complaint begins with talking to people, often several people. They include:
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The affected employee (that is, the potential grievant). |
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Any witnesses who might have seen or heard anything related to the event. Interview witnesses separately — this helps gather information and sort out inconsistencies. Don’t settle for hearsay information. If someone says to you, “Harry told me ...,” go talk to Harry. |
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The supervisor involved in the event. By meeting informally with the supervisor, you can sometimes learn helpful information and you may find a way of resolving the problem without having to file a grievance. (Before talking to a supervisor, always let the employee know you are going to do that.) |
Step 3. Grievance Documentation
Documentation is the step of collecting the evidence — mostly on paper — that will support your grievance case. Collect as much information as you can; you can never be sure which piece of evidence will turn the case in your favor.
Collecting Evidence
Research the contract, work rules, policies, procedures, etc., to determinewhich of these management has violated.
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Gather evidence from any and all sources. Start with the employee’s official personnel file which contains such information as dates of employment, evaluations, promotions, transfers, leave use, attendance, past disciplinary actions, etc. |
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Collect whatever you think may have a bearing on the case. Make copies of any needed documents. |
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Evidence may be something other than paper. A faulty piece of safety equipment, or a photograph of where the event took place could be part of your case. |
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Information Requests
The National Labor Relations Act (NLRA), and most state collective bargaining laws covering public sector workers, grant the union the right to information maintained by the employer which concerns a grievance or potential grievance.
Make your information requests in writing. The union can make additional information requests based on material gained from the first request. Failure by management to supply information that is relevant to a grievance may be grounds for unfair labor practice charges. Examples of information you can request are:
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attendance records |
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Material Safety Data Sheets (MSDS) |
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correspondence |
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payroll records |
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discipline records |
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performance evaluations |
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equipment specifications |
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personnel files |
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inspection records |
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photographs |
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job assignment records |
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seniority lists |
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job descriptions |
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supervisor’s notes |
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management memos |
Sample Information Request Letter
To: Howard Watson, Human Resources Manager
From: Sam Bell, Union Steward
Re: Grievance of Gail Webb regarding overtime
To prepare for Gail Webb's grievance, I request the following information:
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Gail Webb's personnel file and job description. |
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A current seniority list for the bargaining unit, and for Gail's department. I would like the job classification listed for each employee. |
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A list of all overtime assignments made in the past six months. For each assignment I would like th name of the employee and the amount of overtime worked. |
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Sincerely, |
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Sam Bell |
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Step 4. Preparation of a Grievance
Preparation is the key to success in most of life’s activities. Grievance handling is no exception to this rule where the outcome of a grievance often depends on how well the steward prepares ahead of time.
Writing the Grievance
All grievance forms contain four main sections that ask for:
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Basic information about the grievant: name, job title or classification, department, work location, etc. |
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Information about what happened (or failed to happen) that brought about the grievance. |
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A description of why the union believes a grievance exists — what contract provision, work rule, policy, etc. has been violated. |
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A requested remedy for the grievance. |
Two Examples of How to Write a Grievance
(Each sample shows a poorly written grievance followed by a much better version.)
Example 1 — Poorly Written
Without even talking to the union about it, management contracted out some work that could have been done by workers here at the institution. The supervisor said there was a backlog and we couldn’t get to it for a couple months and that’s why they contracted it out. Some of the employees here could have worked overtime and gotten the job done. Management wouldn’t listen to us and they brought a contractor in on a Saturday to do the work.
Much Better
Statement of the Grievance
Management hired an outside contractor to paint three rooms in the institution. This action violates Article VI (Overtime), Article XXII (Contracting Out), and any other relevant articles of the contract.
Remedy
That any bargaining unit employee who would have performed the work, had it not been contracted out, be paid for what they would have earned working overtime on a Saturday to paint the three rooms; and that all affected employees be made whole.
Example 2 — Poorly Written
A week ago the department manager Julie Shaw picked Kathy Walker for a position that opened up on the day shift. This wasn’t fair. Several other workers in the unit are ahead of Kathy who’s only worked here for a year. Management didn’t even post the job for over two months and they only did it then after the union complained. Norma Corey has more seniority and should have gotten the job. This is another case of management playing favorites.
Much Better
Statement of the Grievance
Norma Corey, the most senior employee in the unit, bid on a transfer to a lab technician position on the day shift. In addition, management failed to post that position for over two months. These actions violate Article III (Seniority), Article X (Job Postings) and any other relevant contract provisions.
Remedy
That Norma Corey be given the lab technician position on the day shift, and that she be made whole. And that, in the future, management post job vacancies in a timely manner in accordance with the contract.
Step 5. Presentation of the Grievance
Before meeting with management, write down your facts and outline your case. This helps organize the presentation you will make to management. It can also help you define exactly what you want to accomplish in the meeting. Some stewards practice their verbal presentation in front of a mirror.
Grievance Presentation
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DO use a positive, friendly down-to-business approach to resolving the grievance. |
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DON’T make threats or try to bluff your way through a grievance. |
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DO stick to the subject of the grievance. |
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DON’T allow the discussion to be sidetracked on other issues, past problems or irrelevant subjects. |
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DO discuss issues. |
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DON’T discuss personalities. |
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DO remain calm, cool, collected during the course of the meeting. |
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DON’T become angry, belligerent, or hostile during the meeting. |
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DO keep notes of what is said during the meeting. |
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DON’T lose focus of the objective of the meeting — to resolve the grievance. |
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DO listen for the main point of management’s argument and any possible avenue to resolve the grievance. |
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DON’T get into arguments with the grievant during the meeting; if need be, ask for a caucus and step outside the room to iron out differences and clear up any confusion. |
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DO attempt to resolve each grievance at the lowest possible step; but, if management is not willing to satisfactorily resolve the case, be prepared to appeal to the next step. |
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DON’T “Horse trade” or swap one grievance for another (where the union wins one, management wins one). Each case should be decided on its merits. |
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DO get every grievance settlement in writing. |
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DON’T accept management’s verbal assurances that “it will be taken care of.” |
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DO at the conclusion of the meeting, summarize what occurred. This helps avoid later misunderstandings about the events of the meeting and what will happen next. |
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Remember: In a grievance meeting, you are on equal ground with management. It is no longer boss and employee. Carry yourself and present yourself as management’s equal in the meeting. Treat the supervisor with respect, and expect and insist upon respect in return.
Grievance Procedure Time Limits
Every grievance procedure contains specific time limits for each step of the process. There are time limits to file the grievance at the first step; time limits for management to hear the case and respond; and time limits for the union to appeal to the next step.
Know the time limits. If the union fails to file or appeal a grievance within the specified time limits, it is grounds for the grievance to be dismissed. In other words, the grievance is lost.
Time limit extensions. Sometimes you may want to extend time limits for various reasons (e.g., gathering additional evidence, needing more preparation time). To extend the time limits, management must agree to the request. (And sometimes management wants to extend the time limits; the union would have to agree to that request for the extension to happen). If you ever wish to do this, get the extension agreement in writing, signed by the steward and the management representative.
Throughout the process, keep the grievant up to date on the status of the grievance, the date of the next meeting or when the appeal is due back from management, and any discussions that take place concerning the grievance. The employee should never be left in the dark about his/her grievance. |
In many grievance procedures, the final step is arbitration. This step is negotiated in the contract and it is not automatic. The union must formally appeal a grievance to the arbitration step.
A professional arbitrator hears the grievance. It is the most “legalistic” and formal of all the steps. The arbitrator is selected jointly by the union and management following procedures contained in the contract. The arbitrator is selected from an outside group, such as the American Arbitration Association, the Federal Mediation and Conciliation Service, or a similar panel created by the state. This, too, is specified in the contract.
Types of Grievances
There are four types of grievances that the union steward can file:
Individual:This is when a management violation of the contract affects only one employee. Example: If Mary Adams was not allowed to take her afternoon 15 minute break, which was called for in the contract, she could file a grievance.
Group: In some cases a management violation of the contract affects more than one person. Example: If Mary Adams, Nick Brown, Patty Carson, and Roger Davis were not allowed to take their afternoon 15 minute breaks, they could file a group grievance.
Union: Sometimes a contract violation may affect the union as an institution. Example: If management failed to provide space for a union bulletin board required by the contract, a union grievance could be filed. Union grievances protect the right of the union to function as the certified employee representative. In other instances, management violates the contract and employees may be unwilling or afraid to file a grievance. The steward has the option of filing a union grievance on behalf of the affected bargaining unit members.
Class Action: A class action grievance is one that is filed on behalf of a “class” of affected employees. The “class” may be as broad as the entire bargaining unit. Or it may be more narrow — e.g., a particular job classification, or job title, or shift, or, for example, “all women in the bargaining unit.” Example: If Office Assistant II’s were not given back pay after a reclassification of the position, a class action grievance could be filed for all employees with that job title.
What If There Is No Grievance?
Not every employee gripe is a legitimate grievance. After conducting a thorough investigation and consulting with other stewards and local officers, you may conclude that management has not violated the contract, work rules, policies, procedures, etc., or done anything that falls within the definition of a grievance. In these cases, the steward can look to options other than the grievance procedure.
Glossary of Grievance-Related Terms
Burden of Proof
When management takes disciplinary action against an employee, management must then prove it had cause to take the action. Management has the burden of proof — this incorporates the theory of “innocent until proven guilty.” In all other instances, when the union is claiming that management has violated the contract or work rules, the union has the burden of proving that the violation did, in fact, take place.
Discrimination
Unequal treatment of workers because of race, sex, age, religion, disability, marital status, sexual orientation, nationality, union membership or union activity, political affiliation, or some other unfair basis. Discrimination may occur in hiring, types of jobs given, rates of pay, promotion and transfer, layoffs or other areas. Some employee classes are protected by law while protection for others is negotiated.
Equal Treatment
Management’s rules, policies and procedures must be applied in the same way to all employees; the same standards are used to judge all workers in the bargaining unit.
Grievance Arbitration
Grievance arbitration is often the last step of the grievance procedure. A third party makes a decision which is usually final and binding on both parties.
Grievance Mediation
Grievance mediation is a voluntary and less formal method of dispute resolution whereby a neutral party serves as a facilitator in efforts to resolve a grievance. The ultimate acceptance, rejection or modification of a settlement remains with the two parties.
“Made Whole”
Phrase that unions include in their remedies for grievances that involve loss of pay and/or other benefits (e.g., disciplinary actions or improper denial of overtime or promotions). The term means that the grievant is treated as though management never took the improper action. In discipline cases, it asks that the grievant be restored to the status he or she had before management took the action. In instances such as when a promotion or overtime has been denied, it asks that the grievant be treated as though management had taken the correct action. When “be made whole” is included in the remedy — and the grievance is upheld — it insures the grievant will receive all back pay and any benefits that are due. It would cover such areas as seniority, vacation and sick leave, pension, and medical coverage. Being “made whole” covers all the bases, so the steward doesn’t have to remember each and every possible injury.
Management Rights Clause
The section in the contract where management retains certain functions and rights regarding the “method and means” of managing of the workplace. These often include such things as hiring, promoting, transferring, laying off, establishing work standards and policies, scheduling, deciding qualifications for positions, deciding locations of facilities, and so on.
Precedent
A precedent is a decision that is later used as a guideline for making a decision on a case that has similar circumstances. Precedents may be used to interpret and apply the collective bargaining agreement or work rules. Precedents can be established by grievance settlements, arbitration awards, or even when the union withdraws a grievance (thereby letting stand management’s interpretation).
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