Handling of Grievances Brian Hurley IAFF District Field Service Representative

Handling of GrievancesHandling of Grievances

Brian HurleyIAFF District Field Service Representative

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OutlineOutlineWhat is a Grievance?Categories of GrievancesDue Process and Just CauseGrievance Policy and Contract LanguageGuidelines for Filing/Handling of GrievancesGrievance CommitteesUnion Obligations/DFR Investigating GrievancesArbitration Considerations

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What is a “Grievance?”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 What is notnot a “Grievance”? 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

ComplaintsComplaints

Personal problems and requests for adviceComplaints about fellow workersComplaints about governmental agenciesComplaints about management not related to the

collective bargaining agreementComplaints against the Union

ComplaintsComplaints

Treat complaints as seriously as a grievanceMake sure that management has not violated the

employees rights (investigate if necessary)If there is no grievance, explain why this is soIf the member does not agree, explain the appeal

process

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Categories of GrievancesCategories of Grievances

Contract violations or disputes over interpretation

Violations of Written PrecedentViolations of Past PracticeUnfair PracticesViolations of External LawViolations of Management Responsibility

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ContractsContracts

Formalized – Constructed (Plain English)– Reference (FLSA, etc.)– Addendum (MOU)

StatutoryCustom (Past practice)

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Contract by CustomContract by Custom

Commonly known as Past Practice– 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 PracticePast 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/AppealsDiscipline/Appeals

Due ProcessJust Cause

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Due ProcessDue Process

Identification of rule or regulation violatedInvestigation by a non-involved partyInterview with the charged employeeAccess to remediesSelection of remedies

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Seven Tests of Just CauseSeven 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.)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 ProceduresGrievance 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 andGrievance Policy andContract LanguageContract LanguageReasonable 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 andGrievance Policy andContract LanguageContract LanguageReasonable 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 andGrievance Policy andContract LanguageContract LanguageA 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 andGrievance Policy andContract LanguageContract LanguageUse a standard grievance formGrievance Submittal Information

– Name, address, phone, division, rank, station, etcIncident(s) Causing the GrievanceContract Articles, Rules, Policies, etc. ViolatedRemedy or Adjustment SoughtSign the form

– Employee, Union Rep., Fire Chief/Designee

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Grievance Policy andGrievance Policy andContract LanguageContract LanguageParameters 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 andGrievance Policy andContract LanguageContract 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 GrievancesGuidelines for Grievances

Keep the grievance briefThe written grievance form should include a

brief description of the following itemsOne sentence for each will suffice

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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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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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Use flexible dates and timesBe specific, but allow some flexibilityFor 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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Do not limit contract violationsUse language that leaves you room to add

additional violations to your grievance if neededFor example: Management violated contract

provisions including, but not limited to, Article II, Section 3

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Think strategically about remediesUse 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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Think strategically about remediesTry 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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Sign the GrievanceThis is imperative if the contract requires itIf not required, it empowers the grievant and

presents a united front

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Grievance CommitteeGrievance CommitteeMember RequirementsMember RequirementsMust 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 CommitteeGrievance CommitteeMember RequirementsMember RequirementsMust 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 CommitteeGrievance CommitteeMember RequirementsMember RequirementsMust keep accurate and thorough records for

each grievance throughout the grievance processMust consist of an odd number of members to

break a tie vote (constitution and by-laws issue)

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Union Obligation 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.

Duty of Fair RepresentationDuty 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


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.


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 RepresentationDuty 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 RepresentationDuty 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 RepresentationDuty 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 DefinedDFR: “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 DefinedDFR: “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” DFR: “Discriminatory Conduct” DefinedDefinedCourts 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 DefinedDFR: “Bad Faith” Conduct DefinedWhen 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 pro-employer arbitrator)

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Grievance Investigation:Grievance Investigation:AlwaysAlways Be Equipped Be Equipped Collective Bargaining Agreement City Policies/RulesApplicable State and Federal Laws/RulesNotepad and Pencil or pen (you do take notes,

don't you?) History of Previous Settlements and ArbitrationsGrievance Investigation Fact Sheets Grievance Forms

Steps for InvestigatingSteps for Investigatinga Grievancea GrievanceGet 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


member– Listen carefully to the member’s story– Document, take notes– Ask questions for clarification or additional

information– Maintain confidentiality of the proceedings


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


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 InvestigatingSteps for Investigatinga Grievancea 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’sThe 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?Who is involved?

Document all names/positions and contact information for all involved parties, both union and management

This includes potential witnessesResearch any past disciplinary actions involving

the potential grievant

What has happened to What has happened to cause the violation?cause the violation?What is involved?What is the position of management?Have the grievant write a statement regarding

what happenedHave them sign and date the statement

Where did the grievanceWhere did the grievanceoccur?occur?Exact location, department, etc

When did the grievanceWhen did the grievanceoccur?occur?Date and timeIf ongoing, get the grievant to keep a journal

Why is this a grievance?Why is this a grievance?

What has been violated?– CBA?– Past Practice?– Policy or Procedure?– Personal rights?– Must be specific

Want-Desired OutcomeWant-Desired Outcome

Make the member “whole”?More on this later

Steps for InvestigatingSteps for Investigatinga Grievancea GrievanceDistinguish between fact and opinionDetermine which facts are relevant to the matter

under considerationGrievances are won on facts and evidence

Steps for InvestigatingSteps for Investigatinga Grievancea GrievanceExamine records any past grievances of a similar

natureExamine past arbitration decisions, both won

and lost (not just in your jurisdiction)It goes without saying, carefully read your CBA

and know the history

DocumentationDocumentation

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 formgrievance_inv_frm.pdf


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


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


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 WitnessesInterviewing 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 WitnessesInterviewing 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)

EvidenceEvidence

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 EvidenceEvaluating 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


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


Types of evidence– Hearsay

Basically gossipStatements 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.

OutcomesOutcomes

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?

OutcomesOutcomes

Think strategically about remediesUse 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.

OutcomesOutcomes

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

OutcomesOutcomes

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 aInvestigating aGrievanceGrievanceDo not forget about your member’s rights:

– Weingarten– Loudermill– Garrity

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Arbitration ConsiderationsArbitration 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 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 labor-management relations

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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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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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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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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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SummarySummaryWhat is a Grievance?Categories of GrievancesDue Process and Just CauseGrievance Policy and Contract LanguageGuidelines for Filing/Handling of GrievancesGrievance CommitteesUnion Obligations/DFRInvestigating GrievancesArbitration Considerations

Documents

Handling of Grievances Brian Hurley IAFF District Field Service Representative