Download Grievance and Disciplinary Procedures

Grievance and Disciplinary Procedures
Professor Bruce Fortado
University of North Florida
MAN 4401/6411 Labor Relations
Once the contract has been ratified, one must then attend to contract administration. The
grievance and disciplinary processes constitute the two formal visible aspects of contract
administration. Grievances consist of employee statements of discontent with the
decisions of their supervisor. Disciplinary actions consist of supervisory statements of
discontent over the performance of an employee. While these are two distinct processes,
disciplinary actions, especially severe ones, often produce grievances. In one sense the
two processes are opposites of one another, and in another sense, they are interwoven.
Grievance Procedure A collective bargaining agreement is much like a constitution.
Although every possible situation that can arise is not specified in detail, the general
principles should be laid out so the parties can live together productively for the life of
the agreement. When disputes arise, the grievance procedure will provide the structure
for the parties to debate and resolve their differences. Every contract is incomplete, with
unanticipated circumstances to be met, gaps to be filled and ambiguities to be resolved.
Whereas contract negotiations deal with the party’s interests, the grievance procedure
will deal with rights issues. One might say the parties must decide how to interpret (i.e.
apply) and interpolate (i.e. fill in the gaps between) the articles.
Every time an employee gets upset, one cannot say a grievance exists. In order to
have a grievance, one must have one or more articles of the contract that an employee
perceives to have been violated. If one is unable to cite a section of the contract, one
does not have a grievance. The union grievance representative should regularly study the
contract, so he or she recognizes what articles exist. When a grievant contacts the
grievance representative, they often both search the contract for applicable sections
before meeting again to fill out a written grievance form.
In order to clarify and organize what has happened, the grievance representative
may ask the grievant to draw a timeline of the important events that have taken place.
The grievance representative must also keep in mind he only has one side of the story at
this point. The grievant may be unaware of certain facts. Further, some grievants may
omit details, exaggerate or distort matters, in an effort to relieve their frustrations and
obtain a sympathetic reaction. These problems can be alleviated by obtaining all the
documents involved, talking to other employee witnesses and listening to the other side.
There are normally filing deadlines, which are specified in the contract. For
example, an employee might have 5 to 30 days, depending on the contract, to file a
grievance, once the employee learns or should have learned of the violation. One must
cite a managerial action, and have a date of the decision, in order to have a grievance.
When the time comes to reduce the matter to written form, a short statement must be
drafted reflecting what the violation consisted of. The following questions should be
considered. What happened? Who was involved? Where did it happen? Why was this act
a contract violation? A request for a remedy must also be included.
In sum, in order to write up a grievance, one must have a dated incident that is
being challenged, this incident must have taken place within the contractual filing
deadline, the appropriate contract articles must be identified, a summary of what took
place and what should have alternatively have been done must be provide, and a request
for a remedy must be made. Otherwise, the grievance may be defective.
Most grievance procedures specify a set of progressive steps. Initially, the
employee will normally informally discuss the matter with his union steward, his
supervisor or both. There is little point in formalizing the matter if the parties can
quickly dispose of the issue. If a satisfactory explanation or adjustment was not
achieved, the matter can be set down in writing. The written form will be filed with a
superior of the supervisor in question within the contractually specified time frame. At
this point documents may be requested from management and questions may be posed by
the union steward (grievance representative). Once again, informal resolution should be
explored. If this cannot be accomplished, a formal meeting will be held, and a written
decision will be issued. If the grievant and the union remain unsatisfied, they must
appeal the decision to the next specified managerial level, which could be the human
resource office or the plant manager, within a specified time frame. Once again there
may be an informal resolution attempt, followed by a formal meeting and decision if
necessary. If the grievant and the union remain unsatisfied, they can contemplate
whether arbitration should be sought on the grievance within the specified time frame.
Normally, a union grievance committee will review the case and decide whether to
pursue it to arbitration. The company is notified of their decision. If arbitration is not
pursued, the grievance is considered settled based on the last management reply. If
arbitration is pursued by the union and management does not want to go forward, an
attempt will be made to settle the case. Settlements can take place just before arbitration,
or even during the arbitration hearing itself.
The last step, arbitration, should provide the impartial adjudication of grievances
that the employees desire. Due process rests on the ability of the employee and the union
to have resort to a neutral hearing where both sides can present their cases, witnesses can
be heard and cross examined, documents can be entered as exhibits, and a fair decision
will ultimately be rendered based on the evidence. The more serious the impact of a
managerial action on an employee, the more important arbitration becomes as a final
neutral venue to have the matter heard and resolved (Kuhn, 1961: 23). Frequently, the
union representatives are only able to really closely question the managers involved at
this step, because there are no sworn witnesses and cross examination at the lower levels.
Only a small number of cases are normally resolved via arbitration. Most are
settled at the lower levels. These levels therefore deserve a great deal of attention. When
settlements are reached at the lower levels, management may put forth legalistic
settlement documents. These settlements can include statements such as nothing is being
admitted, this settles all claims that could grow out of these events, the exact terms and
this settlement is not a precedent. These settlements often represent a union victory of
sorts, but something less than a full victory.
The above description leaves the impression the process is a rational one, devoid
of emotions and politics. First line supervisors often suffer from denial. This means they
may get angry when their errors are pointed out, and fail to admit mistakes and take
corrective action. One would anticipate the degree of impartiality should rise as one
progresses up the steps of the grievance procedure (Kuhn, 1961: 22).
In some cases, the upper level managers may want to support their subordinate
managers, even when they are wrong. This locking of arms will prevent criticism from
the lower level supervisors about the rug being pulled out from underneath them. The
upper level managers often set a tone regarding whether lower level managers should
settle or fight in the majority of cases. During periods where the parties are getting along,
many cases will be settled. During periods where the parties are not getting along, few
cases will be settled at the lower levels. Since the option to arbitrate exists, this
managerial choice must be tempered by the risk of a costly and embarrassing defeat.
Union stewards should assess cases when they are brought to them to make sure
there is a substantive matter to pursue. Most stewards do not want to waste their time and
effort. Some stewards look for trouble. They may want to try to prove their worth, vent
their frustrations or come up with reasons to meet with their management counterparts.
Union representatives who are weak will not want to disappoint the upset employees by
telling them they have no case. Those who wish to focus on substantive issues will
honestly tell certain employees there is no way to pursue the incident that upset them
under the current contract. There are some unfair, unjust and inequitable things that occur
that are simply not covered by the labor-management agreement.
Many cases are not pressed beyond the first step. A number simply do not have a
foundation in the contract (Kuhn, 1967: 256). Even when no adjustment is made,
something still may have been accomplished. Some supervisors believe many of their
men simply want someone to listen to them (Kuhn, 1961: 26). Much like a counselor, the
supervisor has taken the time to listen to the problems of the employee and steward. The
opportunity is given for those on the lower level to express themselves. Those holding
higher offices must patiently listen, consider their arguments and provide a reply (i.e. an
explanation). This cathartic process satisfies some, but not all grievants. In some cases,
the discussion of a past problem will result in greater consideration of the workers’
interests in future supervisory decisions. Few supervisors want to have an unhappy work
group. Some stewards are more experienced and familiar with the contract than the
supervisor. This means they may have to educate the supervisor, or can “buffalo” him
(Kuhn, 1961: 29).
Some grievances are pursued for reasons others than attempting to win them.
Certain cases are pursued to highlight problems areas before an upcoming contract
negotiation, and fire up the workers (Kennedy, 1954: 282). Many union officers are
elected. These officers may pursue some matters to keep or gain the support of certain
employees. It may be very difficult for them to drop complaints shortly before a union
election (Sayles and Strauss, 1967).
Some grievances will be pursued because they are hot subjects that concern many
workers. Grievances are often filed individually, but it is possible to file group
grievances. Moreover, even when a single person files a case, other employees may take
an interest in the process and the outcome. This means great care must be taken because
of the widespread morale implications. Even if the issue cannot be won now, at least the
union is out there fighting for its members.
There may be times when a case will be filed to draw attention to a supervisor.
Detailing in writing every error of a lower-level supervisor may hurt his image with
upper-level managers, even if they formally support what was done (Kuhn, 1967: 255).
If the grievance procedure is flooded, the union can exert pressure on the managers by
consuming their time and energy. The union officers may be seeking prior consultation,
attempting to foster a greater willingness to compromise, or exacting of revenge. Albeit
some of these motives remain unspoken, the grievance procedure allows frustrations to
be expressed and channeled (Kennedy, 1954: 290). Even when the situation is not
quickly resolved, this avenue may be a superior path to turnover, absenteeism,
alcoholism, slowdowns, wildcat strikes or sabotage. Ideally, the parties will develop a
better understanding of the other side and a better ability to work together.
The Duty of Fair Representation The NLRA in 1935 established the union that
prevails in a NLRB representation election as the exclusive bargaining representative. In
the subsequent years, a judicially constructed right of “fair representation” was set forth
based on this exclusive representation. In short, the union is obligated in grievance
processing to “act fairly” and “protect equally” all of the employees in the unit. A good
summary of the duties involved in fair representation can be found in Clyde W. Summers
(1977) “The Individual Employee’s Rights under the Collective Bargaining Agreement:
What Constitutes Fair Representation?” in The Duty of Fair Representation, ed. Jean
McKelvey, pp.82-83. Ithaca, NY: New York State School of Industrial and Labor
Relations, Cornell University:
First, the individual employee has a right to have the clear and
unquestioned terms of the collective bargaining agreement which have been made
for his benefit followed and enforced until the agreement is properly amended.
Second, the individual employee has no right to insist on any particular
interpretation of an ambiguous provision in a collective bargaining agreement, for
the union must be free to settle a grievance in accordance with any reasonable
interpretation thereof. The individual has a right, however, to be guaranteed that
ambiguous provisions be applied consistently and that the provision mean the
same when applied to him as when applied to other employees. Settlement of
similar grievances on different terms is discriminatory and violates the union’s
duty to represent all employees equally.
Third, the union has no duty to carry every grievance to arbitration: it can
sift out grievances that are trivial or lacking in merit. But the individual’s right to
equal treatment includes the right to equal access to the grievance procedure and
arbitration for similar grievances of equal merit.
Fourth, settlement of grievances for improper motives such as personal
hostility, political opposition, or racial prejudice constitutes bad faith regardless of
the merits of the grievance.
Fifth, the individual employee has a right to have his grievance decided on
its own merits. The union violates its duty to represent fairly when it trades an
individual’s meritorious grievance for the benefit of another individual or group.
Sixth, the union can make good-faith judgments in determining the merits
of a grievance, but it owes the employees it represents the use of reasonable care
and diligence both in investigating grievances in order to make that judgment and
in processing and presenting grievances in their behalf.
When an employee pursues a violation of fair representation, he will normally sue
both the company and the union. For example, consider a discharge situation where the
union allegedly violated its duty of fair representation. If the plaintiff prevails, the
employer could be held liable for back pay up to the time the arbitration should remedied
the situation, and the union could be held liable for the back pay after this date.
There are many practical problems involved in an employee pursuing a violation
of fair representation suit. A suit is costly, long delays are involved, it is hard to get a
lawyer to take such cases, and there is substantial uncertainly because different courts
have reached different conclusions. Further, the plaintiff must try to obtain evidence
from the opponents, and people seldom keep records of skullduggery. Lastly, the
employee normally has fewer resources than the union and the company. Nevertheless,
some plaintiffs have pursued and won fair representation suits. This means fair
representation violations are probably more likely to occur. The drawbacks of court
cases have led some union leaders to explore alternative methods of resolving these
disputes. The UAW created a Public Review Board composed of seven neutrals to hear
fair representation cases in place of going to court. This provided a court like forum with
experts, but the process was quicker and cheaper.
Many unions have adopted the policy of taking all discharges to arbitration,
because of the severe impact on the employee’s life. Even those who are clearly guilty
may still be given the best defense the union can mount in arbitration. If this policy was
later altered to conserve resources, or unevenly applied during a period of short
resources, the union could open itself to a fair representation liability. Whereas an
employee who was clearly guilty would not have been entitled to arbitration otherwise,
the implementation of the policy to arbitrate all discharges creates an obligation to
provide equal treatment. In sum, many people have argued to expand the rights of fair
representation. Yet, few union members would vote for higher dues to support the cost,
unless they have had a grievance dropped recently that they wanted pursued.
Disciplinary Procedure Control is one of the basic elements of management.
Discipline, like other forms of control, strives to make sure work activities stay on track
to produce the targeted levels of productivity and quality. Commonly, a progressive
disciplinary system is used where the first step is an oral warning, the next is a written
warning, the next is an unpaid suspension (1-5 days), and the final step is discharge. This
being said, one must recognize the great difference that exists in the magnitude of some
offenses. One might move immediately to suspension or discharge for serious violations
such as fighting, large thefts, certain drug and alcohol violations, and serious acts of
insubordination. Less serious violations, such as absenteeism or tardiness, will slowly
move up the progressive steps listed above as the occurrences mount. Printed progressive
scales are often issued for common infractions, like absences, to enhance predictability
and remove supervisory judgment calls (i.e. uneven application).
Great differences in industry standards exist. Consider the general subject of
alcoholic beverage consumption. In coal mining, the managers realize the workers often
“wash down the dust” at a drinking establishment after a shift. Some workers will even
have a drink before a shift. If a worker has one too many before a shift, he will normally
be sent home. While no one wants an accident with the tools or explosives that may be
used, drinking is a generally accepted aspect of the culture. In some beer plants, the
employees may be allowed to have a beer during break time. Conversely, drinking is
treated as a very serious matter in the transportation industry. If a pilot or bus driver is
seen drinking in uniform, even after his workday is over, he may be discharged for cause.
Rules normally exist prohibiting drinking in uniform, because of the potential damage a
customer sighting could cause the business. In view of these nuances, one should be
cautious about using statements like “always” and “never” in the context of discipline.
When a violation takes place, it should be documented. The source of the
violation must be identified as stemming from a rule, procedure, order or well known
social standard. Documentation roughly translates into recording names, dates and
behaviors. This insures you have an incident that can be proven or disproven, rather than
mere rumor or innuendo. One might also want to set down other specifics like the time
and location. One normally does not need to have to the minute exactness.
In order to create documentation, an investigation must normally be conducted
before corrective action is implemented. Managers should not rush to judgment. If there
is some concern with regards to safety or ongoing violations, the employee may be
suspended pending the outcome of the investigation. The investigation must be complete
and unbiased. While some subsequent checking into details can be done, managers may
not be open to contradictory information once discipline is enacted. Care should thus be
taken when managers initially investigate a situation. The violator should normally be
interviewed, unless his actions were observed first hand by supervisors. One must talk to
all the witnesses, not just the ones who volunteer themselves. After interviewing the
relevant parties, one can obtain signed written statements from the direct parties and any
witnesses. Alternatively, tape recorded interviews can be conducted. In some cases,
photos can be taken for documentary reasons (accident site, injuries, etc.). This means
one needs to keep a loaded camera handy at work.
Once a substantial enough amount of evidence is obtained, the proper disciplinary
act can be considered. Ideally, discipline should be enacted quickly, impersonally (no
vendettas), and consistently. Both the severity of the infraction and the employee’s prior
disciplinary record should be considered. One normally would outline what happened,
and how it should have alternatively been handled. The disciplinary letter should have a
clear header, such as REPRIMAND. These letters are normally reviewed by several
managers before they are delivered to make sure the text is completely as it should be.
The text should indicate the step the employee is on, what step will come next if there is a
subsequent infraction, and note the action is subject to the grievance procedure.
Disciplinary actions short of discharge should deactivate after a period of time,
perhaps after one year, indicating the employee has reformed. The form will remain in
the employee’s file, but it will no longer be active in terms of the disciplinary steps.
Some organizations require supervisors to bring their superior or a human
resource manager to meetings where suspensions or discharges will be issued. This third
party can serve as a witness, and make sure the conversation does not get personalized or
argumentative. Certain companies have their human resource manager run the meeting,
while the supervisor serves as a witness, to make sure the meeting is conducted properly.
As a precautionary measure, the contact points for the security and medical personnel
should be in hand before the meeting begins.
Disciplinary meeting should be kept brief, orderly and to the point. If the
supervisor runs the meeting, he should explain the expectation (rule, order, etc.), his
experiences, the findings of the investigation and the disciplinary action. In cases
involving corrective action short of discharge, the consequences of a future violation will
be outlined. The employee should then be allowed to speak, and if he would like, attach
his signed version to the disciplinary form that will be placed in his file. Written
disciplinary forms should be signed or initialed by the employee, indicating the person
received it, not that he agrees with it. If the disciplined employee repeatedly refuses to
sign, a nearby employee who is not involved in the disciplinary situation can be asked to
sign indicating he/she witnessed the delivery. Many severe disciplinary actions will be
grieved, and the employee will enter his side via the appeal process.