ROBERT T. SCHINDLERLUSK & ALBERTSON, PLC

40950 WOODWARD AVE., SUITE 350BLOOMFIELD HILLS, MI 48304

(248) 988-5696RSCHINDLER@LUSKALBERTSON.COM

WWW.LUSKALBERTSON.COM

Managing the ProblemsNavigating Grievances and Progressive

Discipline

WHAT DO I WITH THIS GRIEVANCE . . . OTHER THAN DENY IT?

Pre-Arbitration Grievance Process

Welcome to H.R.

So, you just received a nice promotion to Director of Personnel. Personal Assistant Window Office Your own mini fridge (and maybe even access to a

nice single cup coffee maker) In other words – Life is good!

But then . . .

Welcome to H.R.

In walks your assistant with a single sheet of paper that the union president “just dropped off.” At the top: “Official Grievance Form” At the bottom: Employee and Union President’s

signatures

You have just received your first grievance and the first thoughts in your head are: This can’t be good. Did I do something wrong? What do I do now?

Handling a Grievance

First step . . . Relax Take a nice deep breath Get a cup of fresh coffee from that nice coffee maker Look out that window in your office and notice that

normal life has not ceased.

To help you in fulfilling that first step, keep two thoughts in mind: The vast majority of grievances do not have much to

them and get dropped short of arbitration, and You just signed a guaranteed 3 year employment

contract (hopefully it’s guaranteed).

Handling a Grievance

Now, before we get into the handling of the grievance, let’s talk about what should have been done before the grievance gets to your level.

The Discipline Case: This case is important because, after all, the grievance

was precipitated by . . . well . . . you.

The Discipline Case

It is always important to understand the procedural requirements of the CBA. Most grievances challenging discipline also allege

violations of these procedural provisions (or in some cases, only the procedural violations).

Many CBA’s have unique (or even odd) procedural requirements.

Procedural Pitfalls

Actual examples include: Local union president must be advised of allegations no later

than 2 working days after known to school district; Initial investigation shall be conducted by the employee’s

immediate supervisor; Investigation of employee misconduct (other than criminal)

must be completed within 12 school days of receipt of allegations or belief of misconduct;

No employee may be discharged without first receiving a suspension of not more than 3 work days;

Employee must be provided written statement of any charges against him before any discipline may be implemented; and

No employee suspended of misconduct will be interviewed by board representatives without a union representative being present.

Procedural Pitfalls

Your contract may have (1) none of these, (2) all of these, or (3) yet different requirements.

One thing that your CBA likely does have (unless your predecessor was really good) is a progressive discipline clause.

So, what, exactly, is progressive discipline?

Progressive Discipline?

Progressive Discipline?

Progressive Discipline

 Disciplinary action taken for corrective purposes. Generally follows pattern of oral and/or written reprimands, temporary suspensions, and finally by discharge.

“Progressive discipline generally means the act of discharging an employee in graduated increments and progressing through a logical sequence, such as a written reprimand for a first offense, a short suspension for the second offense, and a longer suspension or removal for the third offense. The severity of the offense may negate the use of progressive discipline.”

Progressive Discipline

Can always be overcome by severe or serious misconduct.

Generally relates to like behavior.Requirements can vary wildly by contract.

Know your contract and whether: It contains a progressive discipline clause; and If there are specific requirements within that clause.

You don’t want to end up in arbitration on a discipline matter having ignored a progressive discipline clause.

Procedural Pitfalls

It is important to know and satisfy any of these procedural requirements before the grievance gets to your desk.

Be sure to know the contractual process – likely that more time will be spent on these issues in arbitration than will be the actual behavior that lead to discipline. i.e., the union rep or lawyer will spend a lot of time talking

about what you didn’t do.

Help yourself (and your lawyer, of course) by lessening (or hopefully eliminating) these procedural issues.

Investigating the Grievance

To fully understand the grievance you will likely have to do an investigation. Especially, but not exclusively, the case with discipline

situations.

In all probability that investigation will lead to witness interviews, including employees that are bargaining unit members

Witness Statements

Witness statements are very important and can be the best evidence/information that you will receive.

To be the most effective: The sooner the better; One employee at a time Get facts, not opinions

No: “He was really mad and threatened the head custodian.”

Yes: “He was red-faced and shouted that it was a @#%&ing shame that the head custodian just got new bridgework because he was going to need a whole new set.

You write, witness signs.

Employee Interviews

Some misunderstanding an confusion exists regarding investigatory interviews of employees that need not exist.

Two types of employee investigatory interview: Employee witness who is not him/herself implicated in

the matter – i.e., not foreseeable discipline The accused employee.

Non-Implicated EmployeeNon-Implicated Employee Accused EmployeeAccused Employee

Must attend;Must answer

questions to best of knowledge and ability;

No right to union presence (even if requested) Caveat: CBA

Must attend;Must answer

questions to best of knowledge and ability (unless criminal);

No right to union representation unless requested or CBA requires;

No obligation to provide with names of other witnesses.

Employee Interviews

Other Pre-Personnel Level Issues

So, what else should be done before the grievance hits your desk?

Do not leave it solely to the building administrator to respond to the grievance at the early levels. Your office should be working closely with the supervisor as

soon as the grievance is brought up to them. Many principals and other building administrators are not

familiar with the nuances of the CBA and grievance procedure, which can result in troubling responses.

This will also allow you to establish the time table and calendar responses.

This is also the time to examine the original written grievance carefully to make sure that it satisfies the requirements of the CBA – if deficient DO NOT PROCESS BUT RATHER RETURN TO UNION NOTING WHAT IS MISSING.

Other Pre-Personnel Level Issues

DON’T PROCESS A HALF-BAKED GRIEVANCE! If the CBA requires the grievance identify the specific

provisions of the CBA alleged to be violated and it doesn’t – send it back.

If “a statement of facts supporting the grievance” is required and it doesn’t have it – send it back.

If a date of violation must be set forth and it isn’t there – send it back.

In any of these cases, or others, simply send the grievance back to the union and let them know that the grievance is deficient and why – allow them to comply with the CBA’s requirements and refile.

Other Pre-Personnel Level Issues

Why refuse such grievances? If the District answers at level I, it is difficult to later

stop the process. Sometimes you never see the grievance again! May learn that the union really as no CBA provision to

rely on. You don’t want surprises if the case goes to arbitration.

You don’t want to have the arbitrator determine that you waived an argument you later want to raise.

Also, you don’t want to set bad precedent when you may later want to rely on the same technical argument.

In discipline cases we often assume that the unions claim is one of just cause and it may not be. We all know what assume means, don’t we?

Taking it to the Next Level

When/if the grievance is moved by the union to your level, this is the first (and probably last) meaningful look at the grievance – use it! The processing of the grievance is the only discovery

that the District will get. Take every advantage you can to get all the information you can.

Superintendent level hearing is often just ceremonial.

Note: Board level hearings are BAD! If your CBA has it, get it out ASAP.

Actually Answering the Grievance

Prior to answering the grievance, do a little research. Interpretation cases

Look at the bargaining history of the provisions at issue: Changes in the language, Proposed changes, Prior grievances pertaining to the language – how resolved, Prior arbitration awards interpreting the language at issue.

Discipline cases Have other employees been disciplined for similar conduct? If so, what penalty? Arbitration? What result?

All of this will help you evaluate the strength or weakness of the grievance – determine if fight or flight is the proper response.

Actually Answering the Grievance

When it comes time to actually write your response, DON’T write lengthy a grievance response. I know, I know, the union will want to hear what you

have to say, and if you could just tell them you could settle this whole thing, right? Well then, buy them a beer after work and talk about it,

but don’t write it in the grievance response. Beauty in Brevity “No contract violation – grievance denied.”

Actually Answering the Grievance

So why not write a epic response that would make Homer jealous? Rarely, if ever effective. You may inadvertently box your lawyer in to a less

effective argument (thereby eliminating a possible winner). And, you may learn more facts after you give your

response. May give the union unnecessary advance notice of an

important strategy or piece of evidence that will allow the union to change its position at arbitration.

Settlement of the Grievance

Good idea – nothing to lose, especially if it can be done after the grievance has been denied at the final step but before arbitration. Settlement talks often happen in the beginning, but

then positions harden during the step process and neither party wants to show a crack.

All of a sudden the arbitrator forces a settlement talk and the parties each realize there is room for movement.

Call a conference after denial, but before the union is required to file for arbitration.

Settlement of the Grievance

Why have a settlement conference? Offers to compromise/settle are not admissible; May produce a settlement; May give your lawyer food for thought to develop a

later settlement that will be acceptable;

Reduce to writing – state “in no manner precedent setting.”

Arbitration

If settlement doesn’t work, and you get a demand for arbitration, call your lawyer . . . NOW. Pitfalls in going through the initial stages on your

own: Could be conflicting dates; Could end up with the wrong arbitrator; May be able to settle before you have to pay any

arbitrator’s fee (although this is likely only an aspirational goal).

In Summary

If you follow these basic guidelines: Your grievance handling will be efficient You will avoid some unpleasant pitfalls (although not

all – some are still bound to happen); and Your District will be in the best possible position

should you end up in arbitration.

Good Luck!