Contract Administration Chapter 10 Contract Administration Copyright © 2009 Cengage Learning. All rights reserved.

Grievances: Definition, Sources, and Significance An employee’s alleged violation of the labor agreement that is submitted to the grievance procedure for resolution. Employee concerns (“gripes”) that are unrelated to the terms of the labor agreement are not grievances. Grievances can be filed for any reason; they are accepted or denied by management based on their perceived merit. © 2008 Cengage Learning. All rights reserved.

Exhibit 10.1 Examples of Incorrect and Correct Grievance Forms SOURCE: Reprinted with permission from United Steelworkers of America, The Grievance Man’s Handbook, (n.p., n.d.). © 2008 Cengage Learning. All rights reserved.

Written Grievances Advantages of Written Grievances Provides a written record to guide future actions and saves time in deciding similar grievances. Reduces emotionalism, permitting rational discussion. Allows management and labor to focus on the original grievance. Can discourage employees who are reluctant to sign a written protest. Reduces the overall number of grievances filed. © 2008 Cengage Learning. All rights reserved.

Defining a Grievance Therapeutic Approach Legalistic Approach Grievance versus gripe? Employee’s perception is that he or she has a grievance, whether or not it represents a violation of the terms of the labor agreement. Legalistic Approach Employee believes his or her complaint is related to a violation of the labor agreement. Manager can either refuse grievance or accept grievance without prejudging its merits and later deny the grievance without risking an unfair labor practice charge. © 2008 Cengage Learning. All rights reserved.

Exhibit 10.2 Potential Subjects for Grievances Administrative Issues Use of seniority Promotion and Transfers Layoffs/Recall Work Assignments Training Job changes and work restructuring Safety and health Discrimination Economics Issues Wage rates Wage increases Job classifications Wage incentives Call-in pay Overtime assignments Shift differentials Merit pay Lump sum payments Past practice of benefits Employee Discipline Reasonable rules Fair and thorough investigation Equal treatment/discrimination Due process rights denial Mitigating circumstances Excessive penalty Communication of the rules Abusive behavior Insubordination Falsification of company records Fighting on the job Workplace violence/threats Sexual harassment Absences/tardiness Use or possession of drugs or /alcohol © 2008 Cengage Learning. All rights reserved.

Reasons for Employee Grievances Who Files: Employees who are younger, more active in the union, and less satisfied with their job, supervisor, and union. Why They File: To protest a contractual violation. To draw attention to a problem in the workplace. To make the grievant and the union feel important. To get something for nothing. © 2008 Cengage Learning. All rights reserved.

Significance of Employee Grievances Effects of Grievances on Nonunion Firms Can trigger union organizing drives. Can cause firms to adopt grievance procedures. Effects of Grievance on Union Firms Allows unions to address employee concerns not covered in bargaining or the labor agreement. Institutionalizes an orderly approach to resolving organizational conflicts while protecting employees from managerial abuse. Opens upward communications (providing “employee voice”) in the organization. © 2008 Cengage Learning. All rights reserved.

Step 2: Determine the facts and substantiate them Exhibit 10.3 Preparation for Grievance Procedure Meetings (and for Arbitration Hearing) Step 1: Gather evidence Step 2: Determine the facts and substantiate them Step 3: Assess the facts for credibility, accuracy, and reliability and consistency Step 4: Frame your arguments Steps 5 and 6: Seek coherence, consistency, and credibility Step 7: Prepare witness scripts Step 8: Prepare admissibility challenges SOURCE: Mark I. Lurie, “The 8 Essential Steps in Grievance Processing,” Dispute Resolution Journal 54 (November 1999), pp. 81-86. © 2008 Cengage Learning. All rights reserved.

Exhibit 10.4 Examples of Information the Union May Request Accident records Attendance records Bargaining notes Company memos Contracts Correspondence Disciplinary records Equipment specifications Job evaluations Health and safety studies Inspection records Insurance policies Interview notes Job assignment records Job descriptions Videotapes Material safety data sheets Names of witnesses “Notes to file’’ Information details Payroll records Performance reviews Personnel files Photographs Reports and studies Salary records Security guard records Seniority lists Supervisor’s notes Time study records Training manuals SOURCE: http://www.ranknfile-ue.org/stwd_nlr.html © 2008 Cengage Learning. All rights reserved.

Exhibit 10.5 X © 2008 Cengage Learning. All rights reserved.

Exhibit 10.5 X © 2008 Cengage Learning. All rights reserved.

Exhibit 10.5 X © 2008 Cengage Learning. All rights reserved.

Different Approaches by Grievance Mediators Transformation or Collaborative Mediation Directive or Results-Oriented Mediation Evaluative Mediation © 2008 Cengage Learning. All rights reserved.

Mediation Approaches Transformation or Collaborative Mediation The mediator tries to get the parties to discover their own separate and mutual resources and understand the other party’s point of view. Evaluative Mediation The mediator offers no specific solution but helps the parties understand the strengths and weaknesses of their position and begin working together again. © 2008 Cengage Learning. All rights reserved.

Approaches to Mediation (cont’d) Directive or Results-Oriented Mediation Goal of the mediator is to reach a specific resolution to the problem. The mediator meets with both parties, allowing the parties to speak directly only to the mediator. The parties are allowed to caucus and engage in confidential communications with the mediator. The mediator meets separately with the parties to move the negotiations towards closure. © 2008 Cengage Learning. All rights reserved.

The Usefulness of Mediation Why Isn’t Mediation More Commonly Used? The vast majority of disputes are resolved and don’t require mediation or arbitration. Mediation is not a robust process and doesn’t require problem resolution as does arbitration. Management views mediation as a compromise that weakens their previous positions and that the union will “get something” without risking arbitration. Mediation isn’t the favored process of professional arbitrators. © 2008 Cengage Learning. All rights reserved.

Other Forms of Alternative Dispute Resolution (ADR) Open-Door Policies Encouraging employees to approach successively higher-level supervisors to solve workplace problems. Ombudsperson A person who serves the employee advocate (“go-between”) in resolving personnel problems. © 2008 Cengage Learning. All rights reserved.

Other Forms of Alternative Dispute Resolution (ADR) (cont’d) Peer Review Systems A panel of employees hears both the employee’s and the company’s arguments, and then renders an advisory or binding decision to resolve the matter. Early Neutral Evaluation A mutually agreed-upon third party evaluates the merits of the problem and renders a nonbinding advisory opinion on the matter. © 2008 Cengage Learning. All rights reserved.

Grievance Resolution: Relationships and Flexibility Codified Relationships Power Relationships Grievance Resolution Empathetic Relationships © 2008 Cengage Learning. All rights reserved.

Flexible Consideration of Employee Grievances The Third and One-Half Step A meeting of management and union representative to discuss and trade grievances. The package of negotiated grievances are settled “without prejudice”—without setting precedent to either’s party’s position in the future. © 2008 Cengage Learning. All rights reserved.

The Union’s Duty of Fair Representation The union, as the exclusive bargaining agent, has a legal duty to fairly represent all union and nonunion members of the bargaining unit alike. Bargaining unit employees give up their individual right to represent themselves when they elect the union as the exclusive bargaining agent. Meeting the legal duty requires that unions must consider the interests of all members, take their positions honestly, in good faith, and without hostility or arbitrary discrimination. © 2008 Cengage Learning. All rights reserved.

Duty of Fair Representation Cases Jurisdiction District courts have jurisdiction over breach of fair representation claims. Employees claiming breach of fair representation have a right to a jury trial if claiming backpay. Vaca v. Stipes The burden of proof for breach falls on the employee. The union does not have to take a grievance to arbitration. The courts should only consider the union’s obligation, not the merit of the case. © 2008 Cengage Learning. All rights reserved.

Consider all grievances solely on their merits. Exhibit 10.7 Seven Golden Rules on the Union’s Duty of Fair Representation Consider all grievances solely on their merits. Investigate each grievance promptly and vigorously. Do not miss time limits. Keep records. Keep the grievant informed. Have a valid reason for any action. If the grievance lacks merits, drop it. SOURCE: http://www.umass.edu/usa/dutyfairrep.htm. © 2008 Cengage Learning. All rights reserved.

Duty of Fair Representation Breaches Perfunctory Conduct by the Union Making It Liable for Breach of Representation: Providing inadequate defense of the grievant at an arbitration hearing. Delaying grievance processing until the time limits in the grievance procedure have expired. Failing to inform the grievant that the union accepted a different remedy than that asked by the grievant. Failing to keep members informed about an arbitration award that affects members’ seniority rights. © 2008 Cengage Learning. All rights reserved.

Duty of Fair Representation: Discharge Bowen v. United States Postal Service Supreme Court found the company had wrongfully discharged the employee, ordering reinstatement and back wages. The Court found the union failed to fairly represent the employee in not pursuing his grievance. The Court apportioned the back wages due the employee: The company: wages from termination until the union ceased representation and employee sued the company. The union: wages from after cessation of representation until reinstatement of the employee. © 2008 Cengage Learning. All rights reserved.

Exhibit 10.8 Determination of the Union’s and Company’s Proportional Liability © 2008 Cengage Learning. All rights reserved.

Key Terms Grievance Employee voice Arbitration Mediation Grievance mediation Directive or results-oriented mediation Transformation mediation Open-door policy Ombudsperson Peer review panel Early neutral evaluation Codified relationships Power relationships Empathetic relationships Third-and-one-half step Fair representation obligation © 2008 Cengage Learning. All rights reserved.