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

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

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

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

Contracts Formalized Statutory Custom (Past practice) Constructed (Plain English) Reference (FLSA, etc.) Addendum (MOU) Statutory Custom (Past practice)

Contract 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

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

Discipline/Appeals Due Process Just Cause

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

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?

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?

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.)

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

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

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

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

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

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.)

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

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?)

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.

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

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

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.

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)

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

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

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

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)

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 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 pro-employer 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

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? 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

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 labor-management relations

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

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

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?

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

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