Handling a Proper Grievance

Report
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The Anatomy of a
Grievance
OR HOW TO HANDLE A CASE FROM BEGINNING TO END
The Beginning

Every case starts somewhere.

There's an event, a conversation, a controversy.

A member will come to you with a story.

What do you do?
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An Example

Many years ago, when I was working at a
Massachusetts state agency, a controversy did come up.

It involved a bottle of milk.
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Milk Goes Missing

The general counsel of the agency kept a bottle of milk
in the office refrigerator to use in his coffee.

Other employees thought the milk in the refrigerator
was for everyone to use, just as it is at NAGE.

But the general counsel wasn't so generous. He sent a
nasty email to the staff warning them not to use his
milk.
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The Staff Had Been Warned
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What Could Have Happened?

The general counsel warned the staff to stay away from
his milk.

But let's say he had decided to investigate instead, to
find out who was taking his milk.

You are the steward. What do you need to do?
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The Steward's Role

What could happen in an investigation?.
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
You need to be ready for interviews of employees.

What gives you, the union official, the right to
participate in interviews?
Weingarten Rights
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
Let’s say the man in the picture is grilling employees
about the missing milk.

Weingarten gives the employees the right to have a
union rep with them at the time of the interview.

Is Weingarten automatic?
How Weingarten Works

Weingarten isn’t automatic.

It’s not like the Miranda warning we’ve all seen on
television. The employer is not required to tell the
employee about Weingarten rights.

The employee must invoke Weingarten him or herself.

It simply allows the employee to have a union rep
present at the interview that the employee reasonably
believes may lead to discipline. If the employer denies
this right, the employee can refuse to answer questions.
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The Missing Milk Again

So in our missing milk case, if the general counsel had
called in employees to grill them, the employees could
have requested that a union representative be present
with them at the interview.

If the employee does ask for a union rep, what are the
employer’s options?

Call in the union rep, cancel the interview, or offer the
employee the choice of ending the interview or
proceeding without the union representative.
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The Union Rep’s Role

The union rep has a major role at an investigative meeting.

First, the rep can meet with the member before the meeting.

At the meeting, the union rep can ask what the meeting is
about and for clarification of questions.

The rep can ask for time to caucus with the member during
the meeting.

The rep can object to questions that seem harassing and
advise the member.
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After the Investigation

Once the investigation is over, the employer will likely
take some action. The member might get something
like this:
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Another Right

Public employees have a right to a hearing before being
fired.

This right comes under the Loudermill case.

The hearing isn’t a full, formal proceeding like an
arbitration.

It is simply a meeting in which the employer states why
the person is being fired and the employee has a chance
to respond.

It is not a substitute for arbitration.
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After the Discipline

After the discipline has been imposed, another set of
rights arises.

You will find them here:
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Enter the Collective Bargaining
Agreement

Now that the investigation is over and the employer has
taken action, you need to be ready for the next stage.

If the employee is disciplined, you need to file a
grievance.

You need to look at the CBA to find out how long you
have to file.

You also need to determine what the grounds are for a
grievance. Find out what article of the agreement
applies.
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Filing the Grievance

The CBA will contain an article covering disciplinary
issues.

It will likely tell you what the grounds are for discipline,
the time limits for filing and where to file it.

Follow those provisions carefully.

You don’t want to lose a grievance because you filed it
too late, in the wrong place or on the wrong grounds.
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Prepare for the Grievance Hearing

To get ready for the grievance hearing, you need to
gather information.

If you’ve been involved from the beginning, you may
already have a lot of information.

But you may be coming into the case late.

If so, you will need to request information.

There may be a report of investigation.

You should ask for that in any event.
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Grievance Hearings

You need to prepare carefully. Find out what the
practice is for conducting hearings.

If you haven’t been involved in the matter from the
start, interview the Grievant and any witnesses.
Organize the documents you have obtained. Prepare
thoroughly so you can make a good impression, not just
on the employer, but also on the Grievant.

Keep the Grievant up to date on what is happening with
the case. You do not want the Grievant to hear about
new developments at the water cooler before hearing
from you.
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Next Steps

If you do not receive an acceptable result after the first
grievance hearing, check the CBA to find out what the
next step is. There may be deadlines to follow.

In any case, do not delay in moving a case to the next
step of the grievance process.

Follow the procedure and be sure you do so within the
deadline, if there is one.
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Arbitration

The final step in the grievance process is arbitration. At
NAGE, attorneys represent the union at the arbitration
hearing.

You may be asked to help the attorney prepare for the
hearing, attend the hearing, or even testify as a witness.

Arbitration is more formal than grievance hearings.

After the arbitration, the attorneys file briefs and the
arbitrator issues a written decision. You will get a copy.
That is usually the end of the case.
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Requesting Arbitration

The CBA will specify what the union needs to do to
request arbitration.

There is usually a deadline that must be met. If there is
no deadline in the CBA, do not delay in filing. The
arbitrator may impose a deadline.

The process for contractual grievances, such as skipped
overtime shifts, is similar, except that there are no
investigative meetings. Weingarten and Loudermill do
not apply.
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One More Point

One of the most important issues in grievance
administration is meeting deadlines. It is crucial that
you know what the deadlines are for filing a grievance
and for moving a grievance to the next step.

No matter how much merit the grievance has, if you
miss the deadline, the grievance will be denied.
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Duty of Fair Representation

Unions have a lot of power over their members’ jobs.

Members depend on unions to represent them in the
workplace.

When a union member is suspended or fired, bypassed
for promotion or anything else, the member expects the
union to stand up for him or her.

The member wants to file a grievance.
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Disagreements Arise

Sometimes the union looks at a case and decides a
grievance won’t be successful.

The member wants to file anyway. When a member has
been fired, you can count on that.

What happens if the union refuses to file?
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Pitfalls of Not Filing a Grievance
DFR!

If the union refuses to file a grievance, the member may
object.

The member might file a DFR at the NLRB or the
appropriate state labor relations agency.

How much trouble is the union in when that happens?

There can be substantial liability if the union is found
to have violated its duty to the member.
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The Union’s Defense

The union will not be found at fault in a DFR as long as its
conduct in the particular case was not arbitrary,
discriminatory or in bad faith.

The union must at least do a reasonable investigation of the
case and then make a decision.


The union does not have to take all potentially meritorious
cases to arbitration. The union is allowed to make a
reasoned judgment.
But the union cannot simply ignore a case.
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The Best Protection

The best protection against DFR’s is for the union to
investigate and promptly evaluate all grievances.

Don’t miss filing deadlines. That’s considered arbitrary
conduct.

Make a reasonable judgment. Don’t discriminate
between members and non-members. At least listen to
the Grievant’s position.
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Appeals of Arbitrators’ Awards

In limited circumstances, arbitrators’ awards can be
appealed into the court system.

The union is not obligated to appeal an arbitrator’s
award into the court system unless the award is
blatantly unfair or the result of the union’s
malfeasance, dishonesty, bad faith or discriminatory
treatment, or the union acted in a perfunctory or
arbitrary fashion.

The courts almost never reverse arbitrators’ awards.
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Who Took the Milk?

That mystery was never solved.
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Questions?

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