Recently a group of experienced union reps suggested we run an article tackling some of the issues they run into most often. Here then are five common grievance situations and suggestions for how to approach them.
Work now, grieve later
When your supervisor gives you a directive you believe violates the contract or standard job procedures, it is important to point out the mistake he or she is making. “That’s a higher pay grade than I am getting.” “The _____ workers have that jurisdiction.” “I don’t have seniority.” Or whatever applies.
But if the supervisor insists that you do the work, do it. Later on, you can file a grievance; but if you refuse to comply with a direct order, you’ll be disciplined for insubordination, and an arbitrator will uphold the discipline.
Arbitrators reason that when the company and the union negotiated their grievance procedure, they did so to avoid work disruptions caused by job disputes. The work continues, productivity is maintained, and the problem gets solved later — through the grievance procedure.
The only exception to this rule is when the directive would put you at serious risk of injury. In that case, save your body now and grieve later.
Contract language prevails
Often a member will want to grieve an issue despite there being clear language in the collective bargaining agreement (CBA) that goes against his or her position. “I know the contract says we get 20 minutes for lunch,” he might say, “but we have been taking 30 minutes as long as I have been here.”
As tempting as this argument might seem, you are not likely to convince management or an arbitrator. The CBA is what both sides agreed to. What has been allowed to occur is irrelevant, regardless of how widespread the practice might have become.
Adhering to the language in the contract protects both parties. If the tables were turned, would you want to give up 10 minutes of your lunchtime just because the second shift has been taking only 20 minutes when they are allowed 30?
Unilateral changes on the job
The management rights clause of your CBA gives management broad authority to run the work in an efficient manner. But that doesn’t mean they can make any changes they want without first consulting the union.
Even if there is no specific language in your current CBA regarding the proposed change, anything involving wages, hours, and working conditions could be, by law, a mandatory subject of bargaining. Working conditions covers a lot of territory, including both economic and non-economic aspects of the job — even the company’s work rules.
As plants modernize, they often bring in new equipment or initiate new work procedures. It is important to remind the company of their obligation to negotiate with the union on any change that materially affects the bargaining unit, whether it is specifically mentioned in the CBA or not.
Subcontracting is another issue for negotiation, whether it is mentioned in the CBA or not. Contracting out work ordinarily done by workers in your bargaining unit directly affects their ability to continue to make a living. Arbitrators tend to rule that employers cannot subcontract work in order to avoid the wages promised to bargaining unit workers by the CBA.
Who has the burden of proof?
There are two types of grievances — those dealing with contract language interpretation and those involving discipline. The important distinction between them is who has the burden of proof, because the side with the burden of proof has a more difficult job.
In contract interpretations, the union has the burden of proof. We are claiming that the company has been violating the contract, so we will need to convince them (and if it goes that far, an arbitrator) that our understanding of the contract is correct.
In a discipline case, the company has the burden of proof. They have disciplined someone, and we are demanding that they prove they had just cause for the discipline. If, for example, they can’t show evidence that the worker actually did what they accuse him of, then they have not met their burden of proof, and an arbitrator will rule in our favor.
Sometimes a union will give away the advantage we have in a discipline case by claiming disparate treatment — the company is treating the worker unfairly. When that happens, the burden of proof shifts back to the union. Now the union is claiming the company did something wrong, so we have to prove our case. It’s usually best to avoid this approach.
Tell the company the remedy you are seeking
Writing up the grievance is a complex task that will be discussed in depth in a future article. But there is one very important point to remember: You can only get what you ask for, no more.
By filing a grievance, you are telling the company they have done something wrong and they must make it right. If you don’t tell them what they must do to make it right, they can admit they did something wrong, but do nothing to make it right.
Try explaining to your grievant that the company agreed they violated the contract and caused him to lose pay, but he isn’t going to get any of that back pay, because you didn’t ask for it.
A useful phrase to remember is “made whole,” as in the sentence, “The grievant should be made whole in every way, including being paid the wages not paid while he was on suspension and all benefits accruing by the payment of those wages, specifically pension contributions and sick and vacation hours earned.”
Being “made whole in every way” means the grievant should receive anything lost because of management’s action. In most situations, it is the maximum a grievant can get. And it is exactly what he or she deserves.
But if you don’t ask for it, you won’t get it. Don’t expect the company to go looking for what the grievant may have lost. Get all that information together yourself and put it all in your remedy.
