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.
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