- Management rights clauses
- Past practices
- Preparing to argue grievances
- Writing grievances
- Grievance investigations
- Witness questions
- Company information and document requests
- Grievance settlements or remedies
- Communicating with members
When stewards use our contract’s grievance procedure to solve a workplace problem, a “grievance” is filed. Technically, a grievance is a problem arising out of the interpretation of our contract. It’s a grievance if the company did something that:
- violated a contract provision
- violated a company policy or rule
- violated a past practice, or
- treated a member or grievant differently than other members in the same situation or with similar problems.
When determining whether a member’s problem involves an interpretation of our contract, always remember that our contract means what you and our Union says it means. Don’t let the company tell you what our contract means.
Often, a member’s general complaint about unfair or unreasonable management treatment can be grieved under our contract’s Amanagement rights clause. While management rights clauses frequently seem to grant companies broad authority to do certain things, most arbitrators require that the company exercise that authority Areasonably. In other words, although the management rights clause gives supervisors the authority to direct members, it doesn’t grant the authority to exercise this authority arbitrarily, maliciously, unreasonably or unfairly.
So, if you can put together an argument showing that a supervisor’s exercise of management rights authority was unreasonable or unfair, you can file, process and argue the member’s problem under the management rights clause.
Example: A supervisor may exceed or abuse the management rights authority to direct or manage members if the supervisor is rude or unreasonably assigns heavy duty to smaller, physically weaker members when stronger members are available.
Some grievances are based on past practices. A past practice occurs when the Union and the company know or should have known about something happening in the workplace and neither objects. When that course of conduct continues or occurs more than a few times, it becomes a past practice.
Example: The company posts schedules on Wednesday, rather than on Thursdays as the company’s scheduling policy says. Members begin to rely on getting their schedules earlier. This could become a past practice, even if though it’s different than the company’s written policy.
To prove past practices, stewards must show that the company acted in a certain way in a particular situation on several occasions and that some supervisor or manager should have known it.
Example: The company may have created a past practice by not terminating 8 members who were absent 10 times during the past year even though the time and attendance policy says that the company can fire members who are absent 10 times during a year.
If the company tries to fire another member who was absent 10 times, stewards can argue that this would violate the past practice that in effect amends the time and attendance policy so that it now takes at least 11 absences to get fired.
If the grievance is based on a past practice, stewards should collect as many solid, specific examples of the practice as possible. If the company can match every one of your examples with one that shows there’s been no consistent practice, you will not win the grievance.
Example: If you can show 3 occasions over the past year when the company did not discipline members who’d been late 5 times in a month, you will not succeed if the company can show 10 occasions when they did discipline members who were late 5 times.
When preparing to argue a grievance, identify specific contract provisions, policies or rules that the company violated. Read the table of contents and page through the whole contract. Carefully read every possibly relevant provision.
Follow the contract’s time limits
To make sure the company addresses grievances on the merits, it is important that we strictly follow and comply with the time limits of our contract’s grievance procedure. Grievances that are filed or appealed to the next step of the grievance procedure after our contract’s time limits put the company in a position where it can deny the grievance based on a procedural technicality.
Worse yet, if the Union arbitrates the grievance, arbitrators sometimes split their decision and rule in favor of the Union on the procedural time limit issue but rule in favor or the company on the merits. So, the end result is that the member loses. The only way to avoid this split decision is to make sure every grievance is filed and appealed in accordance with our contract’s time limits.
If in doubt, always file and appeal grievances. While the Union can withdraw grievances or agree to return to earlier grievance steps, companies won’t always agree to waive time limits.
When filling out grievance forms, identify every possible contract provision that the company may have violated. Describe the violation in the broadest terms possible. The actual contract provisions involved as well as the specific facts can be narrowed as the Union and the company go through the steps of the grievance procedure.
Investigate grievances as soon as possible. In the meantime, be careful about giving the member your opinion on the merits of the grievance until you have fully investigated it, know the company’s position, seen the company’s evidence and spoken to your Union representative.
- Begin your investigation by reading the relevant contract provisions, company policies and rules. This will identify which facts are relevant and which are not, and, in turn, define the scope of your investigation.
- Talk directly to the member and any witnesses the member identifies. Then, talk to any witnesses you think of.
- Question only those witnesses who have direct, first‑hand knowledge of the matters directly pertaining to the grievance. This means you should only talk to people who actually saw, heard, felt, tasted or smelled these matters themselves. Don’t waste your time talking to someone who knows someone who supposedly saw what happened. Have the member talk to these people and bring you a list only of those people with first hand knowledge.
- When you talk to witnesses, don’t take the member’s word for what witnesses will say, and don’t take a supervisor’s word for what the company’s witnesses will say. Do not assume or guess what the facts are or what witnesses might say. Do not rely on anyone else’s assumptions or speculation, including a member’s or management’s.
- After speaking to witnesses, think about their stories. Ask about what parts of their stories don’t make sense. Focus on the explanations they give.
- After you investigate our Union’s case, ask the company about its position, witnesses and evidence.
- Lastly, draw your own conclusions. Consider whose stories make sense and are logical in light of common, everyday experience. If a witness describes a story that, to you, doesn’t make sense, it is very likely that others C including arbitrators C will have the same reaction.
Example: If a member claims a supervisor disciplined the member because of a personality conflict, the member is probably right if the reason the supervisor gives for the discipline is absurd or the supervisor has numerous different reasons for disciplining the member. If you still have this impression after speaking to all witnesses, you are safe to draw the conclusion that the supervisor disciplined the member for reasons other than just cause under our contract.
By conducting your investigation and drawing your own conclusions this way, you will identify the facts that the evidence supports.
This, you and our Union can confidently rely on.
Thee is no single way of questioning witnesses that guarantees a complete or accurate investigation. Each witness interview will be different and depend on the workplace rights involved, the evidence the member provides and the particular steward’s experience. Having said that, the following may help you develop questions to ask:
- Who was involved, saw what happened or knows about the situation? Get names, classifications, departments and contact information.
- When did it happen?
- Where did it happen?
- What happened?
- Why did it happen? The member’s answer will help you with your investigation and the supervisor’s answer may reveal an ulterior motive.
Part of your investigation should include asking the company for information and documents related to the workplace problem. The company is required by law to give you information and documents that you need to investigate any workplace problem, whether or not a grievance is filed. The company must provide all information and documents that could either support or undermine the company’s position or our Union’s position.
Do not be afraid to ask for information or documents. They will assist you in handling workplace problems and grievances and will make the company consider settling the problem. Well crafted information and document requests often will help persuade companies to favorably settle grievances because it forces them to assess the strengths and weaknesses of their cases. The sooner they realize their cases are weak the sooner they will seriously begin to consider settlement.
Ask for anything you believe may relate to or help you with the workplace problem or grievance. Don’t take no for an answer.
Examples: If the workplace problem involves the company failing to do something our contract or a policy requires, such as scheduling, ask the company for:
- Documents showing the member’s seniority and availability
- Documents showing the seniority and availability of the employee who worked the schedule the member wanted
- If helpful, schedules for the past month
If the grievance involves a discharge or discipline, ask for:
- The member’s personnel file
- Copies of all discipline of the member, whether or not they are stored in the personnel file
- All performance evaluations
- All documents the company looked at or based its decision to discipline or discharge the member on
- All relevant company policies and rules
- A list of all other members the company discharged or disciplined for the same or similar reason
- If the grievance involves a past practice, ask the company for all documents which it says proves or disproves the practice
If the grievance involves a health and safety violation, ask for:
- The complete log of recordable occupational injuries and illnesses, both the Summary OSHA Form 300A, and the full log, OSHA form 300, for the past 5 years
- All exposure records made of any hazardous chemical in the plant for the last 2 years
- Material Safety Data Sheets for hazardous chemicals used in the plant
- All noise exposure records made in the plant in the last 2 years
- A list of all job categories where noise levels exceed 85 dBA (TWA)
- Documents describing or explaining any incentive programs used in conjunction with the safety program in the plant
- Disciplinary policies that members are subject to should they suffer a work-related injury or illness or should they report a work-related injury or illness
- Any reports, findings, analyses, conclusions or recommendations made by any consultant or the company relating to member occupational safety and health including exposure to ergonomic hazards or harmful physical agents such as repetitive motion within the last 5 years the company for all OSHA logs or reports regarding the particular hazard or safety violation.
Information and documents the company labels “confidential”
Don’t let the company tell you that it won’t give you information or documents because they are “confidential,” “proprietary” or otherwise privileged. The federal government agency that enforces federal labor law, the National Labor Relations Board, interprets what company information is “confidential” very narrowly. For example, sensitive information about other members or customers is not confidential. When the NLRB does consider information confidential, the NLRB requires companies to nevertheless provide the information and to reach an arrangement with the Union to protect against unnecessary disclosure of the information.
Alternatively, if a company refuses to provide relevant information because it claims that the information is confidential, tell the company that it has two choices. If it really doesn’t want to produce the information, it can just settle the workplace problem or grievance. If the company refuses to settle the problem, then it’ll have to provide the information or the company’s refusal to provide the information will force the Union to file an unfair labor practice charge with the NLRB.
The only settlement or “remedy” available for grievances is putting the member or “grievant” back where the member would have been but for the company’s action or misconduct.
Examples: In termination cases, this means reinstatement to the member’s old job, backpay, back benefits, interest — minus any wages the member earned after the termination — and removing any reference to the termination from the member’s personnel file.
In misscheduling cases, this means the company paying for the hours the company should have scheduled the member for.
In harassment or unfair treatment cases, it means the company’s agreement that the supervisor will treat the member with respect in the future and, possibly, an apology.
In the end, the appropriate settlement is the one that most satisfies members and that stewards convince supervisors to agree to.
No penalties or “punitive” damages are available. Tell the member to forget about the huge recoveries members hear about on TV.
Educate the member on realistic settlements at the beginning of the process so the member isn’t surprised when the problem is settled for the only types of remedies available.
Stewards will do a better job representing members if they effectively communicate with members. And, if stewards keep members informed about what is happening with their problem or grievance, the stewards will better represent our Union by making members feel good about what our Union is doing for them.
Effective communication begins with really listening to the member’s complaint. Many members just want to vent. Time spent just listening could later save a lot of time spent on investigations and meetings with supervisors or managers.
A good way to make sure you’re listening is asking open-ended questions and, more importantly, listening to the member’s responses to open-ended questions:
- Tell me what happened?
- What do you think the supervisor or manager will say happened?
- Why do you think this happened?
- How do you know that?
- Can you give me some examples of what you mean?
- Why did you do that?
Getting the specifics
- As best as you can remember, what were the exact words the supervisor or manager said?
Stewards should be sure to inform members of the strengths and weaknesses of their grievances as soon as they complete their investigations and their assessments of the merits of the grievance. Equally important is letting the member know what settlements or remedies are realistically available.
Involve the member as much as possible in meetings with the company.
Let the member know what is happening with the grievance. Talk to the member when the company responds to the grievance and when the Union appeals the grievance to the next step.