Chapter 4: The Grievance (part two)
WRITING THE GRIEVANCE
Proper writing of grievances is very important and may determine whether a grievance is won or lost.
There is a difference in writing a grievance for presentation to the employer and writing an investigative fact sheet for the union’s record. The official grievance should contain only facts and a statement of claim – as distinct from your “facts sheet” which is for your use only.
Tips for writing the formal grievance
If you specify the clause of the collective agreement in dispute, always include the phrase “and/or any other clause in the collective agreement which may be applicable.” This will give you more flexibility later.
What do you want? Full redress. Write “full redress” on the grievance form, which should cover all aspects of the grievor’s claim.
- Be organized
- Be neat
- Make copies (one for employer, union, employee, yourself)
Sample grievance
A grievance might be written like the following:
Statement of Grievance: The union is grieving because the actions of management violate Article 10.01 and/or any other clause in the collective agreement which may be applicable.
Settlement Required: Full redress.
Grievance jitters?
Sometimes, members may not want to submit a grievance. That is normal. They might be fearful for their job. They don’t want to upset their supervisor. Maybe they don’t want to be branded a “trouble-maker”.
It can be sticky. But it’s your job as steward to safeguard and uphold the contract. If you allow a bad practice to continue, it can eventually be considered a past practice and, therefore, damaging to the contract. Sometimes, this means filing a grievance even if the worker involved doesn’t want to.
What if the worker wants to drop their complaint?
Investigate it as you normally would do with any other grievance. If you find it justified, sign it yourself, or get the grievance committee or union executive to sign it.
You can do this under your authority as a steward. It is an effective method, as it gets around the workers’ fear of signing or pulling their grievance. But it may place a heavy responsibility on you as a working employee. The employer may try to pressure you into withdrawing the complaint.
There is power in the union
An even better solution may be to present the written grievance as authorized by the local through an authorized membership meeting. In this manner, the steward, or president, or secretary of the grievance committee can sign it “authorized by the Local above the signature.”
When the grievance is filed in this manner, it comes from the large, impersonal union and the employer cannot put pressure on either you or your member. If you press a grievance that a worker won’t sign or wants to drop, your decision to carry it should be based on one dominant factor – what is best for all the membership!
SOME REMINDERS
Be comprehensive and keep it simple. The grievance should state the nature of the complaint, allege that the employer’s action is contrary to specific articles of the contract, and demand full redress. The written grievance should be no more than a clear short statement of the main facts and the claim.
Keep working unless unsafe. Generally speaking, employees should be advised to “obey orders now and grieve later” unless the order is illegal, unhealthy or unsafe.
Stay within time limits. But, if you miss the timeline, don’t abandon the grievance. You may be able to overcome the employer’s objection to timeliness upon a number of legal grounds. The employer should advise the union and the grievor at the time the grievance is presented if they object. If the employer receives the grievance and processes it without stating a position that the time limits have been breached, an arbitrator would likely deem the employer has waived their right to object. If time limits have been breached and the employer specifically refuses to accept the grievance for this reason, it does not mean that the grievance is automatically lost. The grievor still has the right to request that the case proceed to arbitration at which time the arbitrator would decide whether or not the board had jurisdiction in view of the late filing. If you seek an extension of time limits from management, get their agreement in writing. Should management fail to comply with the time limits, move the grievance to the next step.
Investigate promptly. People forget.
- Get the grievor’s statement in full. Have it signed and dated. Get the grievor’s full employment history and disciplinary record.
- Compile relevant documents. Gather all available documents, e.g. letters, doctor’s notes, etc.
- Check in. Ask the grievor if there are other reasons for management’s actions other than what management has stated.
- Take notes. Make notes of meetings with management and write down their response. Sign and date these notes and pass them to the union representative who will be at the arbitration hearing.
- Withdraw properly. If you are going to withdraw a grievance, do so “without prejudice.” You may indicate that you disapprove of the employer’s action but, for example, don’t wish to pursue the grievance because the grievor has quit and moved away.
- Be in good faith. Remember that unions have a duty to represent employees in good faith. You do not have to carry every grievance to arbitration but you must make that judgment to carry a grievance or not in good faith. You cannot ignore the grievance or drop it for discriminatory or arbitrary reasons.
- Be militant and reasonable. The steward has the right to do their job properly without fear of retaliation but there are some limits on their behaviour. The steward cannot, for example, counsel employees to disobey management orders – unless the request is unsafe or illegal, of course.
- Keep things confidential. The grievance will be used by the union to build a case for the grievor. The confidentiality of this investigation cannot be stressed enough. In grievance meetings, management will received a copy of the written grievance form and whatever oral arguments are necessary to prove the union’s case. Background information in the grievance report is to be used in the preparation of oral arguments by the union. In many cases, it could be detrimental to the grievance if all the information contained in the report were to be made known to management.
- Be wise. Grievances are often like court cases. One only admits what one has to admit. If a grievor is being disciplined for having been caught sleeping on the job by a supervisor, it would not be helpful to their case if the union were to inform management that the grievor often sleeps on the job and this is the first time they were caught.
THE GRIEVANCE PROCEDURE
[[{“fid”:”643″,”view_mode”:”default”,”fields”:{“format”:”default”,”field_file_image_alt_text[und][0][value]”:”grievance”,”field_file_image_title_text[und][0][value]”:”grievance”},”type”:”media”,”link_text”:null,”attributes”:{“alt”:”grievance”,”title”:”grievance”,”height”:”300″,”width”:”300″,”style”:”width: 300px; height: 300px; float: left; margin: 10px; border-width: 1px; border-style: solid;”,”class”:”media-element file-default”}}]]Every contract contains a section called the grievance procedure. Study it. Grievances can be lost by not following the correct procedure and by not observing time limits.
A typical grievance procedure might have three or four steps. These steps will tell you which level of management is to be approached at each step, the time you have to submit the grievance and appeal to the next stage where necessary. Those closest to the dispute, both on behalf of the union and of management, should first try to reach a settlement. If they are unsuccessful, then representatives with more authority from both sides are brought in as the grievance progresses through the steps, ending in arbitration.
There are advantages to settling the grievance at the lowest step possible. For the steward, settling a grievance at the first stage will add to your reputation and authority with the members and your supervisor. The higher up you go in the grievance procedure, the harder it will be to settle the grievance because each side will have more to lose. Management does not like to have to overrule their personnel and will stand behind them. This could lead to a time-consuming and expensive fight in arbitration.
TIP: Steward be nimble, steward be quick!
- Try to settle the grievance as soon as possible. If there is a time limitation on grievances don’t be afraid to invoke it. If none exist, keep after the supervisor or file a grievance charging the supervisor with stalling. If you ask to have the settlement applied retroactively to the date the grievance was presented, this will reduce any tendency on the part of management to stall.
- Each step of the grievance procedure will likely have a time limit. Management has a stated period of time within which it must give a reply to the union; the union has a stated period of time within which it must announce any intention to appeal the grievance. If management fails to comply with the time limits, move the grievance to the next step.
- Sometimes, however, you will find that either the union or management may raise a point during a grievance hearing that requires further investigation and may make it difficult to reply or proceed to the next stage within the time limits. In this case, either party may request an extension or waiver of the time limits, subject to the other party’s agreement – always in writing.
In some contracts the first stage of the grievance procedure is a verbal presentation involving the steward, the grievor and the supervisor. The grievance is only presented in writing if settlement is not reached at the verbal stage, or if either party considers it necessary. When proceeding to the second stage, the written grievance must be submitted within the time limitations set out in your agreement for the first stage.
Even if settlement is reached verbally, however, it is still important for the steward to keep a record of the grievance for union files – it might prove useful should the same or similar situation arise once more. This is handy information for the committee in negotiations.
In some contracts, the first stage of the grievance procedure might require formal presentation of a written grievance when you, the grievor, and the supervisor meet.
TIPS: PRESENTING A GRIEVANCE
- Settle the grievance on the spot whenever possible
- Know the facts and stick to them
- Plan carefully and be decisive
- Keep within the grievance process time limit
- Never skip a step – management might seek dismissal from an arbitrator and say the process wasn’t followed
- Anticipate the employer’s objections
- Be confident and positive
- Be militant – and reasonable
- Stick to the point
- Have notes or any memory aides at hand
- Throw the burden of proof on management
- Try to understand the other side’s point of view, but never lose sight of your own
- Disagree with dignity
- Avoid threats, insults and bluffs
- Control your temper – but feel free to give as good as you get
- Maintain unity if you bring the grievor to the meeting. Use your discretion if the situation warrants meeting with management alone
- Don’t rush to “trade” this grievance outcome for that one; consult your union reps
- Don’t reveal facts prematurely; wait until the right moment. That moment might be at Step 2 of the process, or even 3
- Remember, stewards are equal in status to the employer
- Don’t brag about victories over management. Give the other person a chance to save face – you may want to save yours someday
- Take notes. Take all the notes
Remember, workers don’t file and process grievances, the union does. Employees usually don’t have the requisite experience. They may not know the process and they may not know how to handle the supervisor (plus they don’t have the protection of being a union representative). They might be “too close” to the complaint and get locked into a personal conflict. Lastly, management may scare the grievor into dropping it by bringing up some other irrelevant matter.
A note on the steward-supervisor relationship
A good working relationship between steward and supervisor makes both your jobs easier. In union-management relationships, the supervisor (backed by management) and the steward (backed by the union) are equals – sharing responsibility for successful labour relations.
The two of you will have to discuss and settle many knotty problems. A friendly but business-like relationship right from the start will help a lot. But of course, your first aim in any grievance session is to win justice for your fellow workers whose rights have been violated.
Remember, supervisors are people too! They respond to pressure – and to common sense.