The Anatomy of a Grievance OR HOW TO HANDLE A CASE FROM BEGINNING TO END NAGE Executive Board Training December

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? NAGE Executive Board Training December

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. NAGE Executive Board Training December

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 to the staff warning them not to use his milk. NAGE Executive Board Training December

The Staff Had Been Warned NAGE Executive Board Training December

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? NAGE Executive Board Training December

The Steward's Role  What could happen in an investigation?. NAGE Executive Board Training December

 You need to be ready for interviews of employees.  What gives you, the union official, the right to participate in interviews? NAGE Executive Board Training December

Weingarten Rights NAGE Executive Board Training December

 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? NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

T he 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. NAGE Executive Board Training December

After the Investigation  Once the investigation is over, the employer will likely take some action. The member might get something like this: NAGE Executive Board Training December

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. NAGE Executive Board Training December

After the Discipline  After the discipline has been imposed, another set of rights arises.  You will find them here: NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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? NAGE Executive Board Training December

Pitfalls of Not Filing a Grievance  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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

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. NAGE Executive Board Training December

Who Took the Milk?  That mystery was never solved. NAGE Executive Board Training December

 Questions? NAGE Executive Board Training December