1. Grievance and Arbitration Prepared by Leonard J. Dietzen, III © 2016 Rumberger, Kirk & Caldwell, P.A. FEN 36th Annual Conference May 18, 2016

2. CBA Language © 2016 Rumberger, Kirk & Caldwell, P.A. Many times the parties ignore the plain language of the CBA regarding the definition of a grievance; who can grieve; at what steps; and timelines for filing and responses/

3. Complaints are helpful? © 2016 Rumberger, Kirk & Caldwell, P.A. Internal, informal complaints are inevitable but most can be resolved quickly and easily. They can alert you to problems before those problems get out of hand. They can draw attention to a chronic problem you thought was resolved. They give you a chance to retain valued employees by responding to their concerns promptly.

4. What is a grievance? © 2016 Rumberger, Kirk & Caldwell, P.A. How does the CBA define a grievance? Typical definition – The term “grievance” shall mean a written allegation by a grievant that a violation of kind or character exists arising out of the interpretation or application of the forms of this Agreement.

5. Why do we need a procedure? © 2016 Rumberger, Kirk & Caldwell, P.A. Save management time Preserve employee relations Keep School Board out of court Required by law

6. What should the grievance procedure article say? © 2016 Rumberger, Kirk & Caldwell, P.A. The process should be clearly defined. Define “days” (working vs. calendar) for purposes of deadlines. It should require the employee to set out in writing the nature of his or her grievance so that employers can deal with the grievance fairly and consistently. It should require the employee to answer the question “What specific relief are you requesting?”

7. How do we handle grievances? © 2016 Rumberger, Kirk & Caldwell, P.A. Take all grievances seriously. –Listen attentively to the employee. –Do not interrupt, even if you disagree. Identify the problem. –Ask for a written account and specific examples. –Keep a record of everything relating to grievance.

8. How do we handle grievances? © 2016 Rumberger, Kirk & Caldwell, P.A. Consult your HR professional and lawyer. –Follow timelines laid out in grievance article. Investigate. –Interview the employee, witnesses and supervisors. –Confirm the facts.

9. © 2016 Rumberger, Kirk & Caldwell, P.A. Decide how to handle the situation. –Find a solution. –Determine how to avoid similar grievances in the future. May have to reopen language during next bargaining session. Provide an update to grievant. –Tell what steps you have taken. –If you can’t validate the grievance, describe your investigation and why you aren’t pursuing the grievance. How do we handle grievances?

10. © 2016 Rumberger, Kirk & Caldwell, P.A. Take action. –Communicate the final decision to all interested parties. Most CBAs require a written response. –Follow up to see that it is implemented and the grievance has been adequately addressed. How do we handle grievances?

11. Is the matter arbitrable? © 2016 Rumberger, Kirk & Caldwell, P.A. Grievant may be requesting relief that is moot. Grievant may have missed deadlines. Grievant may not be grieving a specific article or contract language, i.e., ADA or Title VII issues.

12. Effective Defenses © 2016 Rumberger, Kirk & Caldwell, P.A. Preserve timelines at the first opportunity – usually at the supervisory level. Preserve all defenses in writing throughout the step process. Teach administrators importance of early preservation. Teach Superintendent the need to preserve deadlines.

13. How to Win at Arbitration? © 2016 Rumberger, Kirk & Caldwell, P.A. Draft arbitration clause carefully. Select experienced labor attorneys. Choose the right arbitrator. Request a preliminary telephonic hearing.

14. © 2016 Rumberger, Kirk & Caldwell, P.A. Limit motions. Consider settlement. Trust the arbitrator’s expertise. Present the case efficiently and professionally. How to Win at Arbitration?

15. Select experienced labor attorneys. © 2016 Rumberger, Kirk & Caldwell, P.A. Arbitration is different from litigation. Make sure he or she understands your goals and is prepared to take the most direct route to fulfill them.

16. Choose the right arbitrator. © 2016 Rumberger, Kirk & Caldwell, P.A. Review arbitrator biographies to choose the arbitrator with the right expertise, temperament and training for your case. Check the internet or public databases for more information on the arbitrators. Solicit feedback from those who may have worked with the arbitrator. Ask other school districts about their experiences with particular arbitrators.

17. Consider settlement. © 2016 Rumberger, Kirk & Caldwell, P.A. Keep an open mind and set aside emotions during the case as opportunities for settlement develop. Evaluate whether any new information affects the value of the case.

18. Trust the arbitrator’s expertise. © 2016 Rumberger, Kirk & Caldwell, P.A. Unlike a jury, arbitrators have specialized knowledge in your field. Present your claims in the clearest possible manner. Demonstrate how the particular facts of your situation warrant relief. Focus on the key issues in dispute.

19. Be efficient and professional. © 2016 Rumberger, Kirk & Caldwell, P.A. Comply with deadlines. Follow procedures. Send a representative to the hearings. When testifying direct your comments to the arbitrator and avoid sparring with counsel during cross- examination.

20. Arbitration Strategies © 2016 Rumberger, Kirk & Caldwell, P.A. Jettison weaker arguments. Be candid. Sell your case to the arbitrator. Benefit from the Relaxed evidence rules, but fight blatant hearsay. Constantly re-think your strategy. Provide an out. Leave the arbitrator with a road-map for the award.

21. Terminations © 2016 Rumberger, Kirk & Caldwell, P.A. Because terminations are the most severe form of discipline, the burden is on the employer to establish just cause by “clear and convincing” evidence.

22. Just Cause Standard © 2016 Rumberger, Kirk & Caldwell, P.A. Burden of proof is on employer Is there sufficient proof that employee engaged in conduct for which he or she was discharged? Did the employee’s conduct warrant the discipline imposed?

23. Just Cause Standard © 2016 Rumberger, Kirk & Caldwell, P.A. Was the employee notified that a particular offense or misconduct would result in discipline or discharge? Is there a nexus between the employee’s misconduct and the punishment imposed? Was this employee treated the same way as others who had engaged in the same or similar conduct?

24. Disclaimer The information provided during this presentation is not intended for legal advice. The presentation, and any handouts which may accompany it, provide general information on this topic and answers to common questions about this issue. Please consult an attorney to assure that this information, and your interpretation of it, is appropriate to your particular situation. © 2016 Rumberger, Kirk & Caldwell, P.A.

25. Leonard J. Dietzen, III, Esquire Rumberger, Kirk & Caldwell, P.A. P.O. Box 10507 Tallahassee, FL 32302-2507 (850) 222-6550 ldiezten@rumberger.com © 2016 Rumberger, Kirk & Caldwell, P.A.