GRIEVANCES ARE WON and lost based on how well they are investigated. A thorough investigation gives you the tools you need to build a strong argument. Every grievance is different, so every investigation will lead you in different directions, but employing a few basic strategies can improve your investigations and thereby improve your chances of winning.
Stewards often ask how much they should investigate. The answer is that you really need to look at anything and everything that management might use in the grievance meeting. Even in a relatively simple grievance, it can take some time to request and review company records or track down and interview witnesses, so you will need to start your investigation promptly — as soon as you realize you may have a grievance.
Start with the basics:
- Who was involved?
- What happened?
- Where exactly did it happen?
- When did it happen?
- Why might it be considered a grievance?
Investigate your grievance before you file it. Merely talking to the member and the supervisor does not give you the information you need to file a grievance. The grievant’s and the supervisor’s accounts will usually differ significantly as to the facts of the case as well as their interpretation. Investigating will give you a clearer picture of what actually happened.
Filing before investigating can clog the grievance system with frivolous or unsupported cases. Not only are you wasting the company’s time, you are wasting your own time. Soon your credibility is gone, making it far less likely the company will work with you to resolve a case.
Begin with the grievant. Spend enough time interviewing the grievant to get a clear picture of his or her complaint. Ask lots of questions and assume nothing. If he says, “I was late getting to my station,” ask “How late?” If he says, “The supervisor has always let us do it that way in the past,” ask, “What about the previous supervisor? What about supervisors on other shifts?”
Interview the supervisor. In most grievance procedures, your first contact with the supervisor is not part of the grievance process. You are only learning the facts of the case, not arguing the merits of the grievance. Sometimes the supervisor (or you) might offer a simple solution that solves the problem without your having to file and argue a grievance, but don’t count on that. Get the facts from the supervisor’s perspective, and write them down so the company can’t later invent new facts.
Plan your investigation. It’s a good idea to stop here and think about all of the additional information you will need in order to go forward. Planning helps ensure you do a thorough job. It is no fun to lose a grievance simply because you forgot to look into one key issue. Pay special attention to any facts that are in dispute. Wherever possible, figure out what is most likely to have actually happened.
Make a list of the things you need to learn and where you might get that information. You may need to look at company documents such as attendance reports, shift handover notes, incident reports, minutes of team meetings, emails, letters, and training records. Always request company documents in writing, so you have evidence if the records aren’t forthcoming.
If the grievance is based on an incident, such as misbehavior on the job, you’ll need to interview anyone who may have seen or heard the incident, or who has other knowledge of what happened. You may also need to visit the site so you can visualize how things must have occurred — maybe even draw a sketch or take a photo of the area.
How to interview witnesses
WITNESSES ARE OFTEN the best evidence we have of who was involved, what happened, and where and when it happened. Unfortunately, people’s memories fade quickly, and the longer you wait to interview them, the less likely you are to get accurate answers to your questions.
We all believe we have excellent memories, but thousands of psychological experiments have demonstrated that is not the case. We begin forgetting an event as soon as it ends, and our minds often rearrange the facts. Sometimes our minds mix later events with our memory of the earlier event. In addition, each person remembers different facts, and it is rare that any two witnesses will remember a complex event in exactly the same way.
That is why it is so important to try to get to the bottom of every disagreement you have with management as to the facts of the case. There is no reason to believe that what the supervisor remembers seeing is any closer to what actually happened than what your member remembers (and vice versa).
It is a good idea to draw up a list of questions beforehand. Ask each witness all of the questions, regardless of their response. When you question them, you can run down the list until you have an answer to each question. If necessary, go back to an earlier question for clarification or to elicit an answer that was not forthcoming. And of course, write down everything.
You should encourage witnesses to give details, but be sure to use open-ended questions to avoid leading the witness. Ask, What was he wearing? Not, Was he wearing a sweatshirt?
When you’ve finished the interview, it is a good idea to have the witness read your notes and sign them to indicate they are accurate. The witness can make changes to what you’ve written, if he or she sees something not quite right, but always make sure they initial these changes before signing.
Some stewards have witnesses write out their own statements, and then they go back over the written statement and ask questions for clarification. Both methods have good points as well as bad ones. Many people are better at speaking than writing; in addition, you can ask questions for clarification as you go. On the other hand, writing down the statement will force the witness to get to the point quickly — a problem some people have when speaking.
When using witnesses, numbers do count. If only one witness backs up your member’s account while five remember something very close to what the supervisor says happened, it may indicate management’s case is stronger. And vice versa, of course.
Advise witnesses that their statements and responses to questions may be made available to the employee and to management, and that they may be called to give testimony at a hearing.
Good investigators keep digging
WHEN YOU HAVE covered these basic questions, try to imagine what management will say about the case so you can begin formulating your response. Look for areas in your argument where the facts are weak and try to find back-up evidence. Perhaps you could only find one person who will testify to seeing your grievant at work during the time he is accused of being AWOL, and she was pretty far away. Can you find a witness that places your grievant far away from the scene just before the incident took place? Can you demonstrate that he performed a task on the job during that time period?
The more information you get, the more likely you are to uncover a detail that will unlock the case. Many stewards have stories about how asking one more question or looking just a little bit deeper into the issue at hand ended up turning a grievance around. For example, a college teacher was fired for alleged sexual harassment of a student. There were no witnesses, and the professor denied everything, but the student was a credible witness who gave many convincing details regarding their affair. She even told how on a certain day the teacher had driven to her apartment and demanded entry.
But the union attorney believed the teacher, and just to be thorough, he did some more investigation. That’s when he learned that during the time the professor was supposed to have driven to her house, the city was being hit by a terrible storm, and the police had blocked the roads. To make the drive as she had claimed, he would have had to go through the police barricade on a night when the police had advised against all travel. This hole in the claimant’s case made her testimony less credible, and the arbitrator reduced the discharge.