INVESTIGATING AND FILING GRIEVANCES UNDER COLLECTIVE BARGAINING AGREEMENTS

1. INVESTIGATING AND FILING GRIEVANCES UNDER COLLECTIVE BARGAINING AGREEMENTS

2. INTRODUCTION • Most people are familiar with arbitration, but arbitration is only the last resort in the dispute resolution process • Before arbitration, disputes are typically subject to a grievance process aimed at resolving the issue • Although the mechanics of grievances processes can vary, a smoothly functioning grievance process can result in resolution of a high percentage of disputes

3. INTRODUCTION • Provides members with a means to resolve their disputes in a quick and efficient manner, helps avoid overburdening the arbitration process, and helps maintain good labor-management relations • As a result, experts agree that the grievance process is a continuation of the collective bargaining process • One arbitrator called the grievance process the “life-blood of a collective bargaining relationship”

4. INTRODUCTION • The federal government has recognized the importance of the grievance process since no later than the President’s National Labor-Management Conference of 1945, where it was recommended that every collective bargaining agreement contain provisions for an effective grievance process • So the grievance process is extremely important to the labor-management relationship and those individuals involved in the process play an important role in the collective bargaining process

5. DEFINING “GRIEVANCE” • The scope of the term “grievance” depends on the relevant collective bargaining agreement • Often broadly defined to include complaints by the union and its members against the employer and by the employer against the union and its members • Notably, a disciplinary action need not be taken before a grievance accrues

6. DEFINING “GRIEVANCE” • Most agree that the term “grievance” does not include: • Disputes involving demands for changes in the terms and conditions of a collective bargaining agreement • Disputes arising out of representation issues

7. MECHANICS OF THEGRIEVANCE PROCESS • The mechanics of the grievance process are defined by the terms of the applicable collective bargaining agreement • Mechanics may vary from contract to contract • Generally, most grievance processes consist of a series of procedural steps that must be taken within specified time frames

8. INITIAL STAGES OF PROCESS • In many contracts, the grievance process begins by the filing of a grievance by the aggrieved party to the first-line supervisor • This initial filing is typically written, but some contracts allow for the oral initiation of the grievance process • Depending on the contract, the outcome of the initial grievance is then appealable up the management hierarchy until unresolved grievances are ultimately submitted to arbitration

9. INITIAL STAGES OF PROCESS • Some contracts allow certain disputes, such as those that are unit-wide instead of personal in nature, to begin at an advanced step in the grievance process • But in the absence of contract language authorizing such advanced step filing, most arbitrators will require strict conformity with the contract’s grievance process irrespective of the nature of the dispute

10. REPRESENTATION • In many contracts, an aggrieved employee is entitled to representation throughout the grievance process • In the initial stages of the process, that representation is often provided by a shop steward and/or business agent • As the process proceeds, some contracts provide for representation through a union grievance committee, which consists of representatives chosen from the union and sometimes management

11. REPRESENTATION • When a shop steward acts as a representative in the grievance process, his or her responsibilities include: • First and foremost, advocating for the employee, including ensuring that all of the employee’s rights under the collective bargaining agreement are preserved • Investigating the grievance • Providing assistance, moral support, and counsel to the employee throughout the process

12. INVESTIGATION • Proper investigation of a grievance prior to filing can be an asset to the employee, the union, and the employer • Investigation should be thorough and complete, but conducted in a manner such that a grievance can be filed within the filing deadlines provided for by the controlling collective bargaining agreement

13. INVESTIGATION CHECKLIST • Get a detailed understanding of the facts underlying the dispute • Identify all individuals involved in the incident or problem • Identify any witnesses to the incident or problem

14. INVESTIGATION CHECKLIST • Identify the precise date and time of when the incident occurred • Identify the precise location of the incident • Be specific: which table in the cafeteria? which stall in the bathroom? • A diagram or photograph of the location may be useful

15. INVESTIGATION CHECKLIST • Identify the underlying legal basis for the grievance • Violation of the collective bargaining agreement? Of a law or regulation? Of a past practice? • Seek guidance from the union • Determine whether the incident or problem has already been reported and, if so, by whom, when, and to whom

16. INVESTIGATION CHECKLIST • Determine whether any other departments are involved in handling the incident or problem • Determine the impact of the incident or problem • Was anyone already removed from service? • Did anyone receive medical attention as a result?

17. INVESTIGATION CHECKLIST • Identify is there is an underlying reason which caused the incident or problem • Determine what relief the aggrieved employee seeks

18. RIGHTS DURING INVESTIGATION • When investigating a grievance, a shop steward may have certain leeway to do things not normally permitted, such as: • The right to enter the employer’s premises • The right to question a supervisor’s actions • That said, these rights are not absolute and it is incumbent on the shop steward to act in a professional manner and not abuse any privileges

19. RESULTS OF INVESTIGATION • What to do when investigation suggests that a grievance lack merit? • Remember your role: you are the employee’s advocate, not the judge and jury of the grievance • Give the employee your honest assessment of his or her complaint • Ultimately, it is up to the employee to make the decision on whether to file the grievance…support that decision

20. FILING A GRIEVANCE • When it comes to filing a grievance, make sure that all aspects of the filing comply with the terms of the controlling collective bargaining agreement • This especially includes any time frames set forth in the contract, such as deadlines for filing the grievance, responding to the grievance, and so on • This also includes the format of how the grievance is filed

21. IMPORTANCE OF TIMELINESS • Untimely grievances can be dismissed without hearing • Untimely responses can result in a grievance being automatically sustained • Thus, the practical effect of a late filing could be that the merits of a grievance are never addressed, and instead the grievance is decided on a technicality

22. IMPORTANCE OF TIMELINESS • If a collective bargaining agreement does not provide for specific time frames, many arbitrators will still require that the filing of the grievance be done within a “reasonable” time • What constitutes a reasonable time can vary depending on the nature of the grievance • Notably, if an employee has knowledge of a grievance but does not speak up, the union will NOT be entitled to extend the filing deadlines because it was unaware of the grievance

23. WAIVER • Waiver is a legal concept whereby if an argument is not raised at a certain time, the party that has the argument may be denied the ability to raise it at a later date • If the employee misses a deadline, the union should know this so it can address the deficiency • If the employer misses a deadline, there may be an opportunity to have the grievance automatically sustained, but only if the union preserves the argument that a deadline as missed

24. WAIVER • Oftentimes, the shop steward is in the best position to make the union aware of such opportunities • Waiver may not apply, however, if both parties have exhibited a past practice of being lax with respect to observing filing deadlines • Contractual filing deadlines can also be extended by the parties through written or oral agreement

25. CONCLUSION • Shop stewards must, among other things: • Ensure that employees report grievances as soon as possible • Advise the union of such grievances • Investigate reported grievances • Provide assistance, moral support, and counsel to the employee • Ensure that the grievance is filed within the applicable deadline and in the proper format • Advise the union of any missed deadlines

26. CONCLUSION • One intangible that is crucial to the success of the grievance process is the attitude of the parties involved • The parties should enter the grievance process with the goal of settling a dispute in a fair manner, and use their judgment, experience, and training to effectuate that goal