1. BLIMEY! NOT ANOTHER GRIEVANCE! Presented By: Roman J. Muñoz & Michelle Cannon October 8, 2014

2. PURPOSE To prepare you to: Handle grievances effectively. Understand arbitration and what to do both to prepare for it and to use its results.

3. MANAGEMENT RIGHTS  The phrase, "management rights" refers to those areas relationship that are not the subject of negotiation.  Scope of negotiation: All matters relating to employment conditions and employer­ employee relations, including but not limited to wages, hours, and other terms and conditions of employment."

4. EXAMPLES OF MANAGEMENT RIGHTS  Determining the standards and levels of service to be rendered, operations to be performed, utilization of technology and equipment, means and method of operation, and overall budgetary matters.  Hiring, promoting, transferring, assigning and retaining employees and suspending, demoting, discharging or taking disciplinary action against employees of any district or department.  Establishing performance standards for employees.

5. MANAGEMENT RIGHTS  Although these examples are generally accepted management rights and prerogatives, this does not mean that management's right to implement these prerogatives will not be challenged. The unique adversary nature of collective bargaining means public managers must remain alert to such challenges at all times.

6. WORKPLACE MORALE  Always consider preserving fundamental management rights while at the same time developing and maintaining a positive perspective toward dealing with labor organizations.  The term "dead right."

7. THE FILING OF A GRIEVANCE

8. WHAT IS A GRIEVANCE? A grievance is a formal complaint that can be initiated by one or more represented employees concerning: 1.An alleged breach of the terms and conditions of the labor agreement; -or- 2.An overall dissatisfaction relating to the interpretation, application, administration, and/or practice of a provision of the agreement that the grievant(s) believes has resulted in inconsistent and unfair treatment of an employee or group of employees

9. GRIEVANCE PROCEDURE PURPOSE OF GRIEVANCE PROCEDURE: Allow union members to appeal decisions and resolve problems Allow employees to voice concerns regarding: –Interpretation of Agreement –Application of Agreement –Compliance with Agreement –Corrective Action –Past Practice Keep Lines of Communication Open Safety valve Improve relationships

10. THE SITE ADMINISTRATOR/DIRECT SUPERVISOR  Implement and protect management rights.  Carry out obligations imposed on management by the labor relationship.

11. THE SITE ADMINISTRATOR/DIRECT SUPERVISOR  Supervisors must know the contents of the collective bargaining agreement.  Failure to carry out and exercise fundamental rights management will establish an unfavorable past practice.

12. GRIEVANCE TIMELINES Refer to the appropriate union contract article/section titled “Grievance Procedure” for the applicable time limits for receiving and responding to grievances. Additionally, look to your contract’s definition of a grievance. Note: Any grievance not answered by you within the time limits specified shall be submitted to the next step.

13. PAST PRACTICE  The concept of "past practice" is critical to the interpretation of the rights of the parties under a collective bargaining agreement. Where the collective bargaining agreement is silent on an issue, or where the language is ambiguous, courts may consider the past practice of the parties to establish their respective rights.

14. PAST PRACTICE  To be binding, a past practice must be:  Unequivocal;  Clearly enunciated and acted upon; and  Readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties.

15. PAST PRACTICE  The Public Employment Relations Board has described a valid past practice as one that is "regular and consistent" or "historic and accepted."  Most common areas associated with past practice argument include:  Benefits or working conditions such as procedures for granting personal leave. Overtime.  Seniority rights.  Call back procedures.  Lunch and other breaks.

16. REVISITING A PAST PRACTICE  Negotiate.  Publicize the intent to curtail or correct the practice.  Consider the time element.

17. BINDING PAST PRACTICE CHECKLIST  Does CBA address the issue?  If so, in clear and unambiguous terms?  If contract language not absolutely clear, can intent of parties be ascertained from negotiating history (prior CBAs, negotiating notes)?

18. BINDING PAST PRACTICE CHECKLIST  If CBA is silent on issue, is it a matter subject to meet and confer requirements under the EERA?  If yes, is there a binding practice? Has the alleged practice been clear and consistently applied? Has the practice been followed with a reasonable degree of frequency (as opposed to a few isolated instances) and for a reasonable period of time? Did employees and supervisors have knowledge of the alleged practice and regard it as the customary means of handling the issue?  If these standards were met, are the factual circumstances of the claim similar to the circumstances that gave rise to the binding past practice?

19. GRIEVANCE STEPS The number of steps in the grievance process differ according to the union involved, but each contain the following: 1.Verbal Grievance Informal Level 2.Written Grievance Formal Level I, II, III… 3.Arbitration

20. GRIEVANCE CHECKLIST Check the Contract’s Key Elements –Verbal or written? –Allegation or other? –Who can grieve? –What has to be shown? (Adverse effect?) –What has to be violated?

21. GRIEVANCE CHECKLIST Initial Considerations: –Is Grievance timely? –What specific article & section? –What is the factual statement in the grievance? –Signature of grievant(s) present? –What remedy is/are grievant(s) seeking?

22. GRIEVANCE CHECKLIST Investigate: –Check timelines –Question all witnesses –Review all relevant contract language –Review relevant policies, procedures and the law –Check past practices –Check disposition of similar grievances –Review with management –Status of the Contract

23. GRIEVANCE RESPONSE Informal Level: Employee presents oral grievance to immediate supervisor within timeframe specified in Contract. Employee may have union steward present. Informal Level Response: Attempt to rectify problems presented, but do not negotiate with grievant(s). Wait until a formal grievance Level 1 is filed to formally respond. **Note: See Supervisor’s Checklist for Handling Grievances at the Initial Step Worksheet **

24. GRIEVANCE MEETING –Before discussion, do your homework –Review the grievance with the grievant(s) and the representative –Get the facts –Get the contract provisions violated –Be certain to have all the information you need before responding –Do not respond to a demand for an immediate answer

25. GRIEVANCE MEETING –Check previous grievance settlements for precedent –Talk to witnesses –Check district records Give a clear answer: –State your position orally Follow up: –Make sure any action promised was carried out

26. GRIEVANCE RESPONSE Formal Level 1: If oral grievance is not satisfactorily adjusted, grievant can submit grievance in writing stating the issues involved, citation of the specific article in the contract being grieved, and citing the decision at the informal level. Formal Level 1 Response: –Respond to issue(s) raised in grievance –Review with central “keeper of knowledge” –Respond within timelines –Sign and date –Distribute

27. GRIEVANCE RESPONSE Formal Level 2: If the grievant is not satisfied with the decision in Formal Level 1, an appeal to Formal Level 2 can be made. The appeal should include a copy of the original grievance, decision rendered at Level 1, and reasons for the appeal. Level 2 Response: –Respond to issue(s) raised in grievance –Review with central “keeper of knowledge” –Respond within timelines –Sign and date –Distribute

28. “MINING THE CONTRACT”

29. EMPLOYER’S REFUSAL TO AGREE TO A RESOLUTION

30. ARBITRATION

31. EXPIRATION OF COLLECTIVE BARGAINING AGREEMENT

32. PERB’S JURISDICTION

33. ARBITRATION Advisory v. Binding

34. ARBITRATION STEPS 1.Decision to Arbitrate 2.Arbitrator Selection 3.Preparation 4.Hearing

35. 1. DECISION TO ARBITRATE

36. COST –Arbitrator –Your attorney –Court reporter –Witnesses –Staff time –Award

37. COST/BENEFIT ANALYSIS –How critical is the decision? –What are the chances of winning? –Objective review of the case Review grievance file Review contract language Examine known facts –What can be proven?

38. CONSEQUENCES OF LOSS –Ramifications beyond present grievance? –Purpose met with favorable award? –Will decision settle continuing dispute? –Will significant management rights be lost by unfavorable award? –What are long-term consequences if unfavorable award?

39. SETTLE IF… –High probability of losing –Consequences of loss are significant –Negotiation/mediation is possible.

40. SETTLEMENT AGREEMENT –Union needs to be a party –Consideration Withdrawal of grievance with prejudice –Not precedent - setting –Full understanding –Conclusion of agreement

41. 2. ARBITRATOR SELECTION

42. ARBITRATOR SELECTION –Contractual Requirements –Sources Ad-hoc selection (CSMCS, FMCS, AAA, JAMS) –Permanent panel –Single umpire

43. WHAT TO LOOK FOR –Not who won/lost –Awards in similar cases –Reasoning –Predictability –Bias

44. WHERE TO LOOK –Biographical sketches –Published decisions –Trade associations –Networking –Your attorney’s files and sources

45. PICKING THE ARBITRATOR BEWARE: MAJOR DECISION –Rank names –Strike names –Negotiate who –First available

46. 3. PREPARATION

47. PRE-ARBITRATION STEPS –Identify precise issue(s) –Develop theory of your case –Anticipate union cases –Types of evidence –Organize evidence

48. PRE-ARBITRATION STEPS –Types of witnesses –Witness evaluation –Select best witness –Witness preparation –Order of witnesses

49. PRE-ARBITRATION STEPS –Anticipate union’s case –Prepare opening statement –Hearing notebook –Court reporter/audio tape

50. 4. HEARING STEPS

51. HEARING SEQUENCE –Open –Submission of issue(s) –Stipulations, motions & objections –Opening statements

52. HEARING SEQUENCE –Union’s case in chief –Employer’s case in chief –Close

53. AWARD –Time limit –Hearing close –Retained jurisdiction –Appeals –Implementation –Payment

54. ARBITRATION AWARDS REPUGNANT TO EERA

55. RECORD RETENTION –Types of grievances and arbitration cases, disposition and cost –Labor savings through elimination of costly past practices

56. PREVENTING GRIEVANCES  Know the collective bargaining agreement.  Maintain a positive work relationship with shop stewards and labor representatives.

57. PREVENTING GRIEVANCES In order to prevent a grievance: Identify potential problems and causes Correct problems promptly Encourage corrective suggestions Establish and reaffirm work policies and rules Communicate often and give advance notice of changes Be objective Be consistent Listen well

58. Thank You! For more information about our Full-Service Education Law Practice please visit us at www.kmtg.com