Transcript Document
Handling of Grievances
Brian Hurley
IAFF District Field Service Representative
Outline
What is a Grievance?
Categories of Grievances
Due Process and Just Cause
Grievance Policy and Contract Language
Guidelines for Filing/Handling of Grievances
Grievance Committees
Union Obligations/DFR
Investigating Grievances
Arbitration Considerations
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What is a “Grievance?”
A grievance is an allegation that the contract has
been violated/breached in some manner
This would include an appeal of disciplinary
action
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What is not a “Grievance”?
An expression of dissatisfaction with the
employer or workplace that does not involve a
contract, legal or past practice violation.
This would generally be considered a complaint,
not a grievance
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Complaints
Personal problems and requests for advice
Complaints about fellow workers
Complaints about governmental agencies
Complaints about management not related to the
collective bargaining agreement
Complaints against the Union
Complaints
Treat complaints as seriously as a grievance
Make sure that management has not violated the
employees rights (investigate if necessary)
If there is no grievance, explain why this is so
If the member does not agree, explain the appeal
process
Categories of Grievances
Contract violations or disputes over
interpretation
Violations of Written Precedent
Violations of Past Practice
Unfair Practices
Violations of External Law
Violations of Management Responsibility
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Contracts
Formalized
– Constructed (Plain English)
– Reference (FLSA, etc.)
– Addendum (MOU)
Statutory
Custom (Past practice)
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Contract by Custom
Commonly known as Past Practice
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It must exist for a reasonably long time
It must occur repeatedly
It must be clear and consistent
It must be known by both management and the union
It must be accepted by both management and the
union
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Past Practice
Examples
– Times that fire fighters can shop for meals while on
duty
– Time of day that fire fighters can do their physical
training
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Discipline/Appeals
Due Process
Just Cause
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Due Process
Identification of rule or regulation violated
Investigation by a non-involved party
Interview with the charged employee
Access to remedies
Selection of remedies
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Seven Tests of Just Cause
Was the employee adequately warned of the
consequences of their conduct?
Was the employer’s rule or order reasonably
related to efficient and safe operations?
Did management investigate before
administering the discipline?
Was the investigation fair and objective?
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Seven Tests (cont.)
Did the investigation produce substantial
evidence of proof of guilt?
Were rules, orders, and penalties applied
evenhandedly and without discrimination?
Was the penalty reasonably related to the
seriousness of the offense and the past record?
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Grievance Procedures
Generally divided into three parts
– The definition of a grievance (i.e. which items are
grievable)
– The steps of the grievance procedure (e.g. who,
where, when, etc.)
– Details for grievance arbitration (e.g. which items are
arbitrable, cost, arbitrator selection, logistics, etc.)
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Grievance Policy and
Contract Language
Reasonable opportunity for mutual resolution
before arbitration
– The procedure should be uncomplicated with a
limited number of steps
– In most cases two to four steps should suffice, ending
in grievance arbitration
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Grievance Policy and
Contract Language
Reasonable time periods to complete each step
– It is helpful to include an option for either the union
or management to extend time periods by mutual
agreement of both parties
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Grievance Policy and
Contract Language
A penalty or forfeiture clause for failing to
comply with any time requirements
– Or, at a minimum, a clause that provides for the
grievance to continue to the next step if the employer
does not respond in the established amount of time
– Conversely, the employer will want the grievance to
be dismissed if the union does not follow the
established timelines
– If necessary, communicate by certified mail
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Grievance Policy and
Contract Language
Use a standard grievance form
Grievance Submittal Information
– Name, address, phone, division, rank, station, etc
Incident(s) Causing the Grievance
Contract Articles, Rules, Policies, etc. Violated
Remedy or Adjustment Sought
Sign the form
– Employee, Union Rep., Fire Chief/Designee
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Grievance Policy and
Contract Language
Parameters for arbitration
– A clause that clearly defines the jurisdiction and
authority of the arbitrator. The authority of the
arbitrator should be limited to settling grievances.
The arbitrator should not have the power to make
changes to the contract
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Grievance Policy and
Contract Language
Parameters for arbitration, cont.
Prerequisites, timing and method of initiating arbitration
Time limits and methods of selecting the arbitrator
Procedural rules to be followed in arbitration
Cost sharing (split, loser pays, etc.)
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Guidelines for Grievances
Keep the grievance brief
The written grievance form should include a
brief description of the following items
One sentence for each will suffice
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Guidelines for Grievances
Include:
A description of the problem (i.e. What
happened or failed to happen?)
The contract, legal and/or other violations that
occurred (i.e. Why is this a grievance?)
The remedy (i.e. How should management
correct the situation?)
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Guidelines for Grievances
DO NOT include arguments, evidence, opinions
and/or justifications on the grievance form
unless directed by your contract.
You do not want to tip your hand before you
begin your negotiations with management.
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Guidelines for Grievances
Use flexible dates and times
Be specific, but allow some flexibility
For example: On or about February 16, 2004,
Joe Smith was….
This will help prevent your case from being
thrown out on a technicality if it is later found
that the incident occurred on another date
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Guidelines for Grievances
Do not limit contract violations
Use language that leaves you room to add
additional violations to your grievance if needed
For example: Management violated contract
provisions including, but not limited to, Article
II, Section 3
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Guidelines for Grievances
Think strategically about remedies
Use the phrase “The grievant should be made
whole in every way including…”
This will leave room for bargaining and the
ability to add more remedies later in the process.
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Guidelines for Grievances
Think strategically about remedies
Try to use remedies that will benefit the entire
membership (i.e. pervasive problem – demand
that management meets with all supervisors to
instruct them on how to comply with certain
provisions of the contract)
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Guidelines for Grievances
Sign the Grievance
This is imperative if the contract requires it
If not required, it empowers the grievant and
presents a united front
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Grievance Committee
Member Requirements
Must be willing to devote a significant amount
of personal time to work on grievances and
attend applicable workshops
Must use logic and evaluate grievances from an
outside, neutral viewpoint
Must never let personal feelings affect decision
making
Must be willing to seek advice from qualified
sources if needed
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Grievance Committee
Member Requirements
Must be willing to keep the best interest of the
union as a top priority. This may include
compromise settlements that are better for the
entire membership than the actual grieving
member
Must develop the same traits and skills as those
of an advocate. Grievance committee members
represent and argue facts and issues through the
steps of the process as well as research the merits
of the grievance
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Grievance Committee
Member Requirements
Must keep accurate and thorough records for
each grievance throughout the grievance process
Must consist of an odd number of members to
break a tie vote (constitution and by-laws issue)
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Union Obligation
The Exclusive Bargaining Unit is required to
ensure due process.
An independent investigation by the Union may
be required. It is not enough that the Union rely
on an investigation or report conducted by
management.
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Duty of Fair Representation
First U.S. Supreme Court Decision on DFR in
1944, Steele V. Louisville and Nashville
Railroad
Union designated under the Railway Labor Act
to represent a bargaining unit of railroad fire
fighters
Although there was a substantial black minority,
the union excluded blacks from its membership
Duty of Fair Representation
The union proposed contract changes that would
have eventually excluded blacks from fire fighter
positions.
Suit was brought by a black bargaining unit
employee to have the agreement voided.
Duty of Fair Representation
In Steele, the Supreme Court stated that the
union had to represent all employees in the
bargaining unit fairly, even if they were not
union members.
The court went on to declare that the right to
exclusive representation carried with it the duty
to represent all employees in the bargaining unit.
Duty of Fair Representation
In 1967, the Supreme Court decided a landmark
case relating to DFR.
In Vaca v. Sipes, a union processed a grievance
of a discharged employee only through the
fourth step, just short of arbitration.
The employee had been discharged for health
reasons but felt he was capable of doing his job.
Duty of Fair Representation
The employee brought suit against the union
alleging that the union had arbitrarily and
impulsively dropped his grievance.
The key element of this decision is that the union
has the right to honestly and in good faith settle
or drop a grievance that lacks sufficient merit to
justify going to arbitration, as long as its decision
does not violate the unions DFR responsibility.
Duty of Fair Representation
“A breach of the statutory duty of fair
representation occurs only when a union’s
conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory or in
bad faith.”
- U.S. Supreme Court in Vaca v. Sipes, 386
U.S. 171, 190 (1967)
DFR: “Arbitrary” Conduct Defined
“A union’s actions are arbitrary only if, in light
of the factual and legal landscape at the time of
the union’s actions, the union’s behavior is so far
outside a ‘wide range of reasonableness’ as to be
irrational.”
- U.S. Supreme Court in ALPA v. O’Neill,
499
U.S. 65, 67 (1991)
DFR: “Arbitrary” Conduct Defined
Court also said in O’Neill that the courts should not
substitute their own view of what the union should try to
accomplish in collective bargaining, as long as the union
made a rational decision, even a wrong one.
Courts have also held that unions cannot be held liable
under DFR standard for “merely negligent conduct.”
Plaintiff may prevail by showing that union made an
“unreasoned” decision (i.e. made no evaluation), refused to
make a decision, or made a pro forma effort to protect
employee’s interest.
DFR: “Discriminatory Conduct”
Defined
Courts take a hard line on discrimination based
upon race, sex, religion, national origin, ethnicity
or other grounds prohibited by federal law.
Such conduct is also prohibited by Title VII.
DFR: “Bad Faith” Conduct Defined
When the union engages in “unjustified
interference with members’ contract rights”:
– Bennett v. Glass Molders, Local 66, 958 F.2d 1429
(7th Cir. 1992) (secretly extending probationary
period)
– Allen v. Allied Plant Maintenance, 881 F.2d 291 (6th
Cir. 1989) (agreeing with employer to pick proemployer arbitrator)
Grievance Investigation:
Always Be Equipped
Collective Bargaining Agreement
City Policies/Rules
Applicable State and Federal Laws/Rules
Notepad and Pencil or pen (you do take notes,
don't you?)
History of Previous Settlements and Arbitrations
Grievance Investigation Fact Sheets
Grievance Forms
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Steps for Investigating
a Grievance
Get the facts - conduct an interview with the
member
– Remind the grievant that you cannot help him/her
without knowing ALL of the relevant facts
– Remind them that nothing will produce a poor
outcome quicker than withholding facts that later
come to light from management
Steps for Investigating
a Grievance
Get the facts - conduct an interview with the
member
– Listen carefully to the member’s story
– Document, take notes
– Ask questions for clarification or additional
information
– Maintain confidentiality of the proceedings
Steps for Investigating
a Grievance
Get the facts - conduct an interview with the
member
– Ask the member what other avenues they have
explored to try and resolve the matter?
– What action are they requesting?
– What expectation do they have for the outcome?
– Make sure expectations are realistic
Steps for Investigating
a Grievance
Get the facts - conduct an interview with the
member
– If needed, explain the grievance handling procedure
to the member
– A potential grievance should be fully investigated
before it is filed (there are exceptions)
Steps for Investigating
a Grievance
Get the facts – interview witnesses
– May collect written statements, signed and dated
– These statement can be used to test the grievant’s version of
the events
– These statements may also be useful in supporting the case
when presented to management
– May need to re-interview the grievant to clarify his/her
statement given the information in witness the statements
(conflicting information)
The six W’s
Who is involved?
When did the grievance occur?
Where did the grievance occur?
Why is this a grievance?
What happened that caused the violation?
Want - What outcome is desired?
Who is involved?
Document all names/positions and contact
information for all involved parties, both union
and management
This includes potential witnesses
Research any past disciplinary actions involving
the potential grievant
What has happened to
cause the violation?
What is involved?
What is the position of management?
Have the grievant write a statement regarding
what happened
Have them sign and date the statement
Where did the grievance
occur?
Exact location, department, etc
When did the grievance
occur?
Date and time
If ongoing, get the grievant to keep a journal
Why is this a grievance?
What has been violated?
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CBA?
Past Practice?
Policy or Procedure?
Personal rights?
Must be specific
Want-Desired Outcome
Make the member “whole”?
More on this later
Steps for Investigating
a Grievance
Distinguish between fact and opinion
Determine which facts are relevant to the matter
under consideration
Grievances are won on facts and evidence
Steps for Investigating
a Grievance
Examine records any past grievances of a similar
nature
Examine past arbitration decisions, both won and
lost (not just in your jurisdiction)
It goes without saying, carefully read your CBA
and know the history
Documentation
Important for keeping track of all the
information being gathered and staying
organized
Also important for your Duty of Fair
Representation responsibilities
Use a standard form
grievance_inv_frm.pdf
Documentation
Why we document
– You don’t remember everything by the time you use
the information for writing the grievance and
presenting the grievance
– A written record can be used by others who may
handle the grievance at a later stage (i.e. arbitrator)
– Notes, and statements, help you compare conflicting
accounts
Documentation
How to document
– Keep a file for each grievance
– Use a grievance investigation form if it helps you to
keep more accurate notes. This is an internal union
document not to be shared with management
– Don’t confuse this with the official grievance form
Documentation
How to document
– Ask interviewees to repeat information if necessary
so it can be recorded accurately
– Try to get direct quotes from interviewees. Use
quotation marks in your notes
– When you finish the interview, go over your notes
with the interviewee to ensure accuracy
Interviewing Witnesses
Questions to ask witnesses
– The first 5 of the 6 W’s. If the information conflicts
with that provided by the grievant, ask additional
questions to clarify.
– Has the witness been involved in meetings with
management concerning this issue? If so, what was
said at those meetings?
– Has the witness discussed this matter with other
employees?
Interviewing Witnesses
Questions to ask witnesses
– Can the witness identify other witnesses who might
be helpful and have firsthand knowledge of the
incident?
– DOCUMENT
– In all cases, remind witnesses to tell the truth and not
to withhold facts (no matter how bad it might be)
Evidence
Request from the employer all information and
documents relevant to your potential grievance
An interview with management may be
appropriate during the investigatory phase
Evaluating Evidence
Types of evidence
– Direct
Contract language, eye-witness testimony, work record,
etc.
This type of evidence is the most useful and will carry the
most weight
Evaluating Evidence
Types of evidence
– Circumstantial
Indirect evidence from which conclusions or inferences as
to the true facts of the case can be drawn
Not as persuasive as direct evidence, but can be accorded
great weight by arbitrators in the absence of less than
credible witnesses or direct evidence
Evaluating Evidence
Types of evidence
– Hearsay
Basically gossip
Statements from people who have no direct knowledge of
the facts, but report what they have heard from a person
who is not present at the hearing
This evidence is not given much weight because its
accuracy cannot be tested through cross-examination.
Outcomes
What if your investigation confirms
management’s version of the events?
Is a negotiated settlement a possibility (or
advisable) short of filing the grievance?
Does the Union have an obligation to pursue a
grievance through grievance arbitration if the
grievant demands it?
Outcomes
Think strategically about remedies
Use the phrase “The grievant should be made
whole in every way including…”
This will leave room for bargaining and the
ability to add more remedies later in the process.
Outcomes
Try to use remedies that will benefit the entire
membership
– i.e. pervasive problem – demand that management
meets with all supervisors to instruct them on how to
comply with certain provisions of the contract
Outcomes
Once the investigation is complete, file the
grievance if the facts support your case
A favorable outcome or remedy may be
dependent on how the grievance is handled and
investigated
Remind members not to be insubordinate.
Work now – Grieve later
Investigating a
Grievance
Do not forget about your member’s rights:
– Weingarten
– Loudermill
– Garrity
Arbitration Considerations
Despite the best efforts of the union
representative, some cases cannot be resolved
through the internal grievance procedure
When all internal steps have been exhausted, the
grievance committee must decide whether to
take the case to arbitration
Process is expensive and time consuming
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Arbitration Considerations
Arbitration is always the last resort used for
labor-management grievances
If a significant number of grievances are not
resolved internally, you should examine your
grievance procedure and work on you labormanagement relations
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Arbitration Considerations
The union’s duty to represent its members in a
fair manner does not require that every
unresolved grievance be settled in arbitration
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Arbitration Considerations
Consider the following factors when considering
arbitration
Contract language
– Are there restrictions on what issues can be brought
to arbitration?
Impact on the bargaining unit
– carries more weight if it impacts the entire bargaining
unit in addition to the grievant
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Arbitration Considerations
The amount of the award
– There should be a substantial remedy at stake (i.e.
reinstatement, back pay, etc.)
– The cost of arbitration should be weighed against the amount
and/or significance of the award
The nature of the grievance
– The more serious the issue, the more likely the grievance will
be taken to arbitration. Is a member’s job at stake? Will it set
important precedent for the union?
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Arbitration Considerations
The work record and seniority of the grievant
– Arbitrators may be more likely to give a favorable settlement
to a grievant who has several years of experience and has a
solid work record
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Summary
What is a Grievance?
Categories of Grievances
Due Process and Just Cause
Grievance Policy and Contract Language
Guidelines for Filing/Handling of Grievances
Grievance Committees
Union Obligations/DFR
Investigating Grievances
Arbitration Considerations
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