Alaska Public Employees Association/AFT Web Site
One of the key components of your negotiated agreement is the grievance procedure. The opportunity to use it effectively on behalf of the people you represent will probably be the most challenging, interesting and rewarding aspect of your role as an Employee Representative.
WHY A GRIEVANCE PROCEDURE? DEFINING GRIEVANCES
DUTY OF FAIR REPRESENTATION
REGIONAL GRIEVANCE COMMITTEE
Guidelines for Committee Hearings
DOCUMENTING THE GRIEVANCE
WHY A GRIEVANCE PROCEDURE?
Even with the best of intentions, there is probably no way that negotiators at the bargaining table can anticipate and resolve all possible grounds for conflict which may develop during the life of the contract. Conditions change in unexpected ways. The cost of living may increase so rapidly that per diem rates considered generous when negotiated may soon be inadequate. Changes in the practices or policies of the Employer may create entirely new grounds for complaint on the part of employees. Contract language may not be clear.
A formal grievance procedure provides an orderly, peaceful means for resolving such disputes or conflicts and for ensuring compliance with the terms of the negotiated agreement. A grievance procedure is also an important channel of communication between labor and management. Employees are able to voice complaints about working conditions without fear of reprisal, since any retaliatory action taken by management as the result of a grievance constitutes an unfair labor practice.
In some situations, the filing of a grievance may be the only or most effective way of ensuring that upper level management is made aware of problems occurring at the working level.
The substance of the grievances themselves can be evidence of inadequacies in the contract (ambiguous language, areas of concern not covered by the contract) of which negotiators should be aware before beginning work on the next agreement. Grievance settlements provide guidance for future situations and, particularly when carried through to arbitration, are a means of clarifying contract language.
For all these reasons, grievance procedures are a standard part of modern labor contracts. Despite differences, most share at least three common characteristics:
1. explicit, step-by-step procedures
2. time limits
3. arbitration as the final step (Required by Alaska's Bargaining law - PERA)
Most grievance procedures contain a series of steps stating specifically who must take what action and in what form to initiate or move forward with a grievance. Underlying most procedures is the belief that the association and management representatives closest to the dispute should try to reach a settlement. Only if they are unsuccessful are higher level representatives called into the situation. As a result, the steps in the procedure usually correspond at least roughly to the lines of management authority, beginning with the first level of supervision outside the bargaining unit.
An important feature of the grievance procedure are the time limits at each step from initial filing through arbitration. These are established to ensure that problems will be brought up in a timely manner when the facts and witnesses necessary for an equitable resolution of the grievance may be available. A method of preventing the use of stalling techniques is usually included, guaranteeing that a resolution will be achieved within a reasonable period.
Finally, all of our grievance procedures provide for arbitration as the final step in the process. When no agreement can be reached in a particular dispute, an impartial third party is brought in to render a decision that is final and binding on both parties. The arbitration clause usually provides that representatives of the association or union and management select the arbitrator either by mutual agreement or by alternatively "striking names" from a list of qualified individuals supplied by the American Arbitration Association or the Federal Mediation and Conciliation Service.
Your responsibilities as an Employee Representative include the initial processing of grievances in the manner prescribed by your contract. In order to do so you must not only know the procedures outlined in the grievance article -- the steps and time limits prescribed there -- you must also determine whether or not an employee's problem is a grievable one, investigate the circumstances, gather evidence, negotiate with management representatives, and initiate the formal written grievance.
An issue which is grievable under one contract may not be under another. In some instances, the term is defined narrowly. Grievances may be limited to disputes between the association and the employer over the interpretation or application of the agreement, or as is sometimes the case, to the disputes of individual workers concerning working conditions or personnel practices. Many contracts incorporate a broader definition in which any dispute or difference arising between an employee or the association and the employer is grievable. The 1995 - 1998 Kenai Borough Employees Association Agreement, for instance, states in Article 26, Section 1 that
"A grievance is defined as any controversy or dispute by an Employee, group of Employees, or authorized Employee Representative concerning rates of pay, hours, or other terms and conditions of employment involving the interpretation, application, or alleged violation of any provision of this Agreement or any rules and regulations adopted subsequent to the signing of this Agreement."
Under the broad definition such as that in the Kenai Borough Employees Association Agreement, grievances may be filed on hundreds of different matters. Even so, not all of the complaints you are likely to hear are legitimate grievances. Generally speaking, a legitimate grievance exists when there is a violation of one of the following:
The Contract--Most of the rules governing the relationship between employees and the employer are found in the contract. Some grievances are obvious violations of the agreement and are easy to prove, as when an employee is not permitted to take relief periods guaranteed in each shift. Grievances concerning the interpretation of the contract, particularly when the language is ambiguous or when two or more clauses appear to be in conflict with one another, are more difficult to resolve.
Past practices--A past practice can be the basis for grievances, particularly in areas where the contract is silent or unclear. However, grievances based on past practices can be quite complicated and are often difficult to win. In order to be considered valid, the practice cited must repeated over an extended period of time and must be explicitly (orally or in writing) or implicitly (by failure to object) accepted by both parties. Even if both of these conditions are met, an arbitrator may refuse to base a decision on past practice if he or she finds the practice to be bad, unsafe, or in conflict with the contract. A grievance based on past practice by its nature requires extensive investigation and documentation.
The Law--Regardless of contract provisions or past practices, an employer cannot violate federal, state or local law. In recognition of this, many contracts include a "savings clause" (see Article 35, 1990-1992 Supervisory Unit Agreement) to protect the integrity of the remainder of the contract if some part of it is found to be in conflict with the law on any level. Complaints involving alleged violations of laws--OSHA or equal employment regulations are often more readily resolved through the grievance procedure than through costly, lengthy lawsuits.
Agency Policies and Regulations--Management generally cannot violate its own rules in a manner which will harm one or more workers. Uneven enforcement of agency policies or regulations as well as management disregard for its own rules may provide grounds for a grievance.
Worker's Rights--The term "worker's rights" is a broad one, including such things as the right to a safe work environment and to be free from discrimination. Discrimination occurs whenever two people are treated differently under the same conditions in a way which is harmful or unequal to one of them. Characteristics such as age, personality, past incidents, and union activity, as well as race and sex may be the basis of grievable discriminatory actions. Such grievances are difficult to prove, and must be carefully investigated and documented.
A grievance may affect only a single individual, as in a case concerning the underpayment of a particular employee. It may extend to a larger group of employees such as all those who are required to live in employer-owned housing and are adversely affected by the employer's rental practices.
Some grievances which seem minor on the surface may involve significant principles and policies which affect all bargaining unit members and which the Association must uphold in order to prevent an injurious precedent and to defend its interpretation of the agreement.
Consider for example the following instance. The Kenai Borough Employees Association contract calls for specific actions on the part of the employee when there is a vacancy in the bargaining unit. The employer must advertise the vacancy in house for a period of ten days and then advertise to the public only if no qualified regular status employee applies. If the Borough chooses to ignore this provision, even on what may be a reasonable basis, the Association must intervene. Even if no member is interested in the vacancy the fact that the employer is attempting to make and enforce changes unilaterally involves a significant principle of negotiation and mutual agreement which the Association must defend. There are ways by mutual agreement through Letter of Agreement or Memorandum of Understanding to modify collective bargaining agreements by mutual agreement when the employer or the Association wishes to make a long term or one time change in the agreement.
Every grievance--regardless of how insignificant or clear-cut it may appear at first glance--should be evaluated in terms of its possible consequences for the membership as a whole. In addition to the principles and policies which may be involved, you should consider the questions of whether a particular grievance is divisive in its effects. A divisive grievance is one which pits bargaining unit members against one another--what one wins, another loses--and thereby weakens the Association and its ability to protect the common interests of all members. Because you work directly with the people you represent, you are in an excellent position to spot this type of complaint and to attempt to resolve it in an equitable manner without submitting it to the grievance procedure.
Your co-workers will come to you with a wide variety of complaints and problems. One of your most important tasks as an Employee Representative will be to determine which of these matters are legitimate grievances and which are not. You must be prepared to explain your conclusions to the employees involved and to assist them by initiating grievances on their behalf or by referring them to field staff if necessary.
The grounds for legitimate grievances are broad and varied, but not unlimited. Some very real complaints associated with a member's employment cannot be resolved through the grievance procedure.
Disputes between bargaining unit members, or between a member and the Association are not grievable. Problems arising out of conflicts between agency policies such as established work hours and family obligations or personal difficulties are not generally subject to the grievance procedure unless the policies are enforced in a discriminatory fashion. In some cases a complaint may be effectively ungrievable because no resolution can be compelled. In public employment, for example, a grievance which would require significant alterations in work force (i.e., large additions to meet an increase workload) may be unresolvable through the grievance procedure since this is a budgetary issue in the hands of a legislative body rather than those of management.
When employees bring complaints to you which clearly are not grievable on any of the five grounds discussed earlier, your first task is an educational one. After you have explained what can and cannot be done through the grievance procedure, attempt to resolve the problem through other means. You may be able to negotiate a flexible work schedule for an employee whose single parenting responsibilities make it difficult to be at work at 8:00 a.m., for instance, or to act as a mediator between bargaining unit members involved in an argument.
Naturally, you cannot solve all of the members' problems personally, nor should you attempt to do so. Do try to suggest some other means for dealing with problems affecting a work situation so that employees do not feel as though they have been shrugged off or left hanging. Individuals who require medical or financial assistance, for example, may be referred to local agencies designed to meet those needs. A good project for Employee Representative groups or unit chapters is to compile a directory of the agencies and services available locally. Being able to provide this kind of information when it's needed isn't a requirement of your role -- but it should enhance your reputation as a knowledgeable, helpful, concerned Representative.
Sometimes you will be able to determine almost immediately whether an employee's problem is a legitimate grievance or a nongrievable complaint. In other instances, however, none of the usual guidelines will give you a clear cut answer. Faced with a borderline case, give the benefit of the doubt to the employee and process the complaint as a grievance. If later investigation reveals that there is no real basis for a grievance, it can always be withdrawn.
Occasionally employees will ask you to file grievances which on investigation turn out to be unjustified, either because the employees misunderstand the agreement, agency regulations or the law or because they have misrepresented or failed to relate important facts. These situations can be difficult to handle and will require considerable tact on your part. Explain to the employees why their grievances are not justifiable, then refer them to the local field staff if they wish to pursue the matter further. Be sure to do so well in advance of the Step One filing deadline so that a grievance may be entered if additional information is uncovered providing a basis for the grievance.
A word of caution is in order at this point. Telling bargaining unit members that the Association will not process their grievance is a serious matter. Members who do not understand or accept the reasons for denial often feel that they have been unfairly treated. They may well be resentful, less apt to support the Association's policies and activities, and may become a source of misinformation about APEA/AFT services and accomplishments. Furthermore, if grievances are rejected in an arbitrary, capricious or discriminatory manner by any APEA/AFT representative, the Association may be sued for failure to fulfill its duty to fairly represent all bargaining unit members.
In order to protect the employees and to ensure that the Association fulfills its obligations, follow this procedure whenever you come to the conclusion that a grievance should not be filed on a complaint or that one already filed should be withdrawn:
1. Consult with the local field staff.
2. Discuss your conclusions and the reasons for them with the employee.
3. Tell the employee to contact a field staff if she or he has any questions about the manner in which the complaint was handled or wishes to pursue the grievance. Make the names, work phone numbers and addresses of the local field staff available to the employee and emphasize the importance of making contact immediately so that the time limits for filing the appropriate grievance step can be met.
4. If the employee agrees with your determination that the grievance should not be pursued, obtain a signature on a statement to that effect. (See form #1 in Section XX)
5. If the employee decides to pursue the matter, complete Form Letter #2. Send it certified or hand deliver it. If the latter, have the employee initial and date your copy. Forward a copy to your local Field Office.
6. Place our copy of the form letters in the complaint or grievance
DUTY OF FAIR
Labor law provides for a swap. The union, through certification or recognition, is established as theAexclusive@ bargaining representative for all employees in the bargaining unit. In exchange, the union must fairly represent all employees in the unit, members and non-members alike. This responsibility applies in contract negotiations and in contract administration and enforcement (grievance handling and arbitration). The legal term for this is the Aduty of fair representation.@
Perhaps the most important area in carrying out a union=s duty of fair representation is the processing of grievances. Most of the failure to represent lawsuits are filed by persons who have been discharged. Therefore, you need to be par-ticularily careful in handling discharge grievances.
Fortunately, it is easy to avoid a DFR suit. Just make sure that you do a thorough job of considering each issue and cover the following steps:
1. Consider all grievances solely on their merits. The decision about whether to proceed with a grievance must be based on the particular facts and circumstances of the issue brought before you.
2. Investigate the grievance throughly. Dig for information so that you have a firm basis from which to decide whether or not to pursue the grievance.
3. Process the grievance promptly - do not miss time lines for filing and appealing grievances. If additional time is needed, request an extension. Make sure to get this extension in writing.
4. Take notes and keep written records. Make sure to document all contact with the grievant, witnesses and management. Begin taking notes from the very beginning. Make sure to record the date, time and place of the meeting, who was present and what was discussed.
5. Keep the grievant informed. Let the grievant know where you are in the process of your investigation and make sure he or she receives copies of all relevant filings and extensions. If you determine that a grievance should not be pursued, inform the grievant in writing. This is very important because, once a grievant is notified that the union will not pursue an issue, the grievant has six months to file suit.
6. Treat all members of the bargaining unit the same. If you have a personal problem with someone who comes to you for representation, arrange to have them work with another employee representative in your chapter or with someone from the local field staff office.
7. Have a valid reason for any action taken on a grievance. Make sure you can articulate your reasons and that you can support your reasons from information gained in your investigation or with contract language.
8. If the grievance clearly lacks merit and cannot be won at the lower steps of the grievance process or in arbitration, drop it. The law requires a good faith consideration of a grievance on its merits. If you have done this, and there is no reason to go forward, notify the grievant in person and follow up in writing.
9. Settling grievances. The union has the right to settle grievances if it sees fit. Again, there should be a written record of the settlement and the reasons for settling should be explained to the grievant. Avoid any appearance of horsetrading one grievance for another. All settlements should be based on articulable facts and circumstances.
10. Arbitration. As an employee representative you will probably not be handling grievances in the arbitration phase of dispute resolution. However, you should know that a grievant does not have the right to demand a grievance proceed to arbitration. If the union does take a grievance forward to this step, the grievant has a legal right to expect prepared and competent representation in the hearing.
A thorough investigation completed prior to filing is useful in determining which complaints are legitimate grievances and also provides a foundation of evidence to support those grievances which are filed. Because you are located at or near the work site and can talk directly to those involved in a dispute, you are ideally placed to gather information and to analyze its reliability. In order to be effective in doing so, you must be a careful communicator, an attentive listener, and something of a detective.
The investigation process begins as soon as an employee tells you about a complaint or possible grievance. Remember that employees are usually upset when they first talk to you about a problem, since in most cases it will have occurred quite recently. It's generally a good policy to let them tell their stories in their own way initially, with as few interruptions as possible. This gives the employees an opportunity to release their emotions, makes you an interested and sympathetic listener, and lets you get an overview of the situation before you begin to concentrate on the details. After you have heard the whole story and have some understanding of the issues, go back over the account in order to clarify the nature of the problem or dispute and to collect the basic information which you will need to begin a complete investigation. Be sure to note at least the following:
WHO is involved in the grievance? Get the names, work locations, and working relationship of those directly involved and any witnesses so that you can contact them during the investigation.
WHEN did the incident giving rise to the grievance occur and when did the employee first have knowledge of it? This information may be critical in determining the timeliness of a grievance filing.
WHERE did the grievance take place? Under what conditions? Who may have witnessed the incident?
WHAT happened? Get details and time sequences of the important events.
WHY did it happen? Were there any extenuating circumstances that may help to explain the grievant=s or the supervisor=s action?
What Contract provisions(s) may have been violated? Knowing what you are looking for and why can save a good deal of time and effort. Take a few minutes to analyze the material you have gathered in your discussion with the employee. What is the real nature of the problem? Are there grounds here for a grievance? What contract provision(s) may have been violated? What kinds of additional information do you need in order to resolve the dispute or process the grievance? Where can you obtain the information -- from witnesses, employer records (payroll, leave accounts, SOP's) the contract, grievance files?
Obtaining copies of documents is usually not too difficult once you know where to find them, providing the documents are not confidential. Contact the appropriate person, identify yourself as an Employee Representative, explain what you want and why. If you are not allowed access to a particular document which you feel is essential to your case, contact the Field Office for advice and assistance.
Dealing with potential witnesses and with parties to the grievance itself is more difficult. Witnesses are sometimes unwilling to become involved, perhaps because they do not want to get mixed up in what they see as office politics or because they fear repercussions if they support the grievant's story rather than that of a supervisor. Try to educate a reluctant witness concerning the importance of the grievance procedure to all bargaining unit members, pointing out that all employees who take part are protected from retaliation both by law and by the terms of the contract.
Remember that perception and memory are selective and each person who observes or is involved in an incident will have a different version of what took place. If there are several witnesses to an incident, try to talk to all of them so that you can develop an accurate picture of events by comparing and evaluating the evidence they give you. Be sure that witnesses are willing to repeat their information at the appropriate time in the grievance procedure should that become necessary. In some cases, you may wish to have witnesses sign written statements, particularly if they will be unavailable for later questioning for any reason. Always remember that building your case on a weak witness -- one who isn't consistent in the facts he or she relates or is likely to back down at some point in the proceeding -- is poor strategy. You and your grievant may be left with no case at all.
When you have completed your initial investigation, review the data you have collected. Based on the information available, is this a legitimate grievance? If so, do you have all the evidence you need to make a strong case for the grievant? If no, what more do you need and where can you get it? Thorough preparation is the most effective tool for obtaining the desired resolution. Get all the necessary information before you file the grievance.
After completing your investigation, you may determine that either the issue brought forward to you by the member is not a grievance, or, that there is not enough evidence to support the member=s allegations.
A decision not to process a grievance is a serious one. Prior to making that decision, contact your the Field Staff and discuss your reasons with them. If they agree with your assessment, meet with the member and present your arguments. If the member agrees with your position, document the decision not to proceed with a letter, signed by both of you, to memorialize your conversation.
If the member disagrees, and wants to pursue the grievance further, he or she is entitled to take the issue up before the Regional Grievance Committee. The APEA/AFT by-laws allow members the opportunity to have their cases reviewed prior to a final determination being made. If the member wants to pursue this course of action, send them a letter similar to Form Letter #3, and follow the by-laws in Article XVIII.3 of the APEA/AFT constitution.
Remember, while the issue is being settled, the grievance must be kept alive with the Employer. It is vital to either seek an extension of the deadline to file at the next step, or to file at the next step of the grievance procedure. Remember, keep the grievant informed at all times of your actions.
BYLAWS SECTION XIII:
A. May direct association staff to pursue a grievance up to and including arbitration or take other actions deemed necessary.
B. Direct association staff to seek court enforcement of an arbitrator's decision, or force the employer to arbitrate. In either case the Business Manager shall have the opportunity for comment prior to entering such an order. In such an event the time limit for committee decision is extended fifteen (15) days.
C. May submit recommendations to the negotiators.
D. May conduct hearings.
2. Appointment, qualification, term of service:
A. Regional grievance committee members will be announced by the Board of Directors at the APEA/ AFT caucus. The regional committee shall be composed of three (3) members and three (3) alternates.
B. Each regional committee shall elect a Chair from among themselves.
C. Committee members shall serve a two year term.
D. All members of the Regional Grievance Committee shall be members in good standing of the association not holding a position on the Board of Directors or as President of the Association.
E. A quorum shall be two (2) members of each Regional Grievance Committee.
A. Each regional grievance committee shall submit a report on its activities and make recommendations to the APEA/AFT Caucus.
B. If association staff decides that a grievance of an Employee working under the jurisdiction of the association should not be pursued, the member may appeal that decision to the Regional Grievance Committee. Appeals shall be made to the Chairperson of the Regional Grievance Committee within seven (7) calendar days of receipt of notice of the staff position.
a. The appealing Employee may appear before the committee in person, or by teleconference, whichever is more economical. The appealing Employee may submit arguments in writing to the committee. Association staff shall comply with all procedural time limits affecting the Employee's appeal pending the committee's decision.
b. The Employee and association staff shall provide the committee with all information needed to make its decision. The committee shall reach a decision within five (5) working days of the time it received all information needed to make its decision. The committee shall then notify association staff of its decision and send written notice thereof within fifteen (15) calendar days to the Employee and association staff.
Guidelines for Committee
The following guidelines have been developed for the staff and the Committee members. Copies of these guidelines are sent to all grievants referred to the Committee.
AIf the grievant appeals to the Regional Grievance Committee, the Committee Chairperson will notify the Field Representative handling the case by telephone and in writing.
BThe grievant and the Regional Grievance Committee Chairperson will schedule the grievant to appear before a quorum of at least two Committee members, and preferably, if they are reasonably available, all three members.
CThe grievant or his/her private representative may appear before the Committee in person or the appealing grievant may waive his/her right. Teleconferencing is an acceptable alternative.
DThe grievant may present relevant oral testimony or documentary evidence. The grievant may call expert witnesses at his/her own expense.
EThe Field Representative and other staff members will be accorded an opportunity to present information forming the basis of the staff recommendation.
FBefore or after a Committee decision resulting from a hearing is rendered, either the grievant or the staff member responsible for the original recommendation may ask for the hearing to be reopened or the decision to be reconsidered, provided the contractual time limits for advancing the grievance have not expired. The bases for such requests will be limited to (a) newly discovered information (b) fraud or misrepresentation subsequently discovered.
GThe Regional Grievance Committee Chairperson will chair hearings, or appoint a Committee member to do so in his/her absence.
HNot less than five (5) work days before a hearing commences, a grievant may, for cause, request disqualification of a Committee member. The Chairperson will rule on such requests. If a substitute members is needed to assure a quorum, the Board of Director Member of the Region will appoint the substitute. Should the grievant request disqualification of the Chairperson for cause, the request will be directed to the Regional Board of Director Member, who will rule on the request. If the request is granted, the Regional Board of Director Member shall appoint a Committee member as acting Chairperson "pro tem". Substitutes will be appointed by the Regional Board of Directors as required to assure a quorum and full and fair consideration of all the facts and circumstances.
ICommittee Members may question participants in the hearing.
JThe Committee may request additional information from the grievant and/or the staff member.
KThe Committee shall consider the competing claims in closed session. The Committee may seek information, guidance or assistance from the Business Manager. The Committee may rule at the end of the hearing, or may take the matter under advisement and rule later. Five (5) working days are allowed the Committee to decide or to request more information.
LThe Committee Chairperson shall notify the Field Representative concerned by phone of any decision reached after post-hearing consideration, and send prompt written notice thereof within fifteen (15) calendar days of the decision to the Field Representative. The Field Representative shall forward a copy of the notification to the staff member assigned responsibility for review of grievance processing.
MThe Committee will perform other duties as required by the APEA By-Laws.
The method by which grievances are to be processed is prescribed in your negotiated agreement. It is absolutely essential that you study the grievance article and understand clearly what is required at each level of the procedure. If you have any questions call a Field Office for assistance.
The procedure set out in Article 10 of the 1996-1999 Supervisory Unit Agreement is fairly typical. The grievance procedure has four steps corresponding to the levels of management authority and ending in binding arbitration.
Step One-- grievances are initially filed with the first level supervisor outside the bargaining unit.
Step Two--are filed with the Commissioner of the grievant's department.
Step Three-- are filed with the Commissioner of Administration, who has final authority in personnel and labor relations matters for the state.
Step Four-- involves arbitration by a neutral third party selected in the manner described in Article 10 of the Contract.
Article 10 also specifies who may file a grievance at each step of the procedure and in what form. Step One may be filed orally or in writing by the employee alone, or by the employee with the assistance of either an Employee Representative or a Field Representative. Step Two must be submitted in writing by an Employee or Field Representative. Steps Three and Four must be filed by a Field Representative. Following Step three, APEA/AFT staff including the Field Representative who has handled the grievance at the lower levels review the entire case history and determine whether or not to submit the grievance to arbitration (Step Four). The grievant may appeal a negative decision to the Regional Grievance Committee under APEA/AFT's By-Laws if dissatisfied. The Committee may direct the staff to proceed to arbitration of the grievance.
One of the significant features of the grievance article is the set of time limits established. The 1996-1999 Supervisory Unit Agreement, for example, states that the grievance just be filed within thirty (30) working days of the effective date of the disputed action or inaction or the date the employee is made aware of the action or inaction, whichever is later, unless the grievance meets the criteria for a disciplinary grievance, in which case it must be filed within fifteen (15) working days of the effective date of the action or the date the employee becomes aware of the action, whichever is later.
You and the employees you represent must know and meet all the relevant time limits; failure to do so means that the employee and APEA/AFT loses the right to use the grievance procedure to settle the dispute. For example, if a Supervisory Unit employee or Employee Representative attempts to file a grievance contesting a termination under the 1996-1999 contract on the sixteenth working day following a termination which took place two weeks after the notification of the grievant, you should expect that the grievance will be dismissed by the employer as untimely. Regardless of how unjustified the termination, APEA/AFT would be unable to require that the employer even discuss the grievance.
Generally speaking, grievances should be settled at the lowest possible level preferably by the people who will have to put the resolution into practice. Many grievance procedures allow the employee and his or her representative to file the Step One grievances orally. If not, supervisors are often willing to engage in informal negotiations with employees and their representative. In most cases it's a good idea to take advantage of this opportunity to discuss the substance of the grievance with the supervisor. A discussion is often less threatening than a written grievance, permitting the participants to seek resolution in a problem-solving atmosphere rather than one of confrontation and conflict. Misunderstandings can be cleared up quickly, and a variety of possible solutions to the problem suggested and evaluated by the people who will have to live with them.
In order to be effective in this kind of meeting, you must be prepared. Conduct your investigation of the grievant first. Write down the important facts and an outline of the arguments you feel are essential to the case. Try to anticipate the supervisor's arguments and prepare answers to them. If necessary, talk to other Employee Representatives who have dealt with similar grievances or with this supervisor and get their ideas. Arrange for the grievant to be present at the meeting. Make sure that he or she understands what will take place -- what your approach will be and what is likely to happen. Agree not to disagree with each other in front of the supervisor.
As for the meeting itself, no one can tell you in advance exactly what to do or say. There are no hard and fast rules governing communication situations. What works well with one supervisor and grievant may be completely ineffective with two other people. Experience indicates that the following guidelines are useful in most situations, but do not be afraid to try something else if you feel it's necessary in a particular case. Be flexible.
1. Arrange to hold the meeting in a place where you will not be subject to telephone calls or other interruptions. It's often advisable to seek a neutral ground, someplace other than the private office of either party.
2. Try to establish a cooperative, business like atmosphere in which each party respects the rights and role of the other. Even though the supervisor with whom you are meeting may be your boss, in your role as Employee Representative you have equal status when discussing grievances. You have the right to speak freely and fully, and should insist on that right if necessary. Conversely, you should treat the supervisor as you would like to be treated. Be courteous, polite and positive rather than angry, hostile or accusative. Let any break in good relations with management representatives come from the other side.
3. State your position clearly and positively. It's usually a good idea to present your case once in its entirety before you begin to discuss details, or at least to provide an overview so that everyone in the meeting understands clearly the nature of the grievance. Sometimes you may wish to let the supervisor do most of the talking at first, in order to have the opportunity to find the weaknesses in his or her arguments. You will have to decide which is the best approach based upon your best guess concerning the supervisor and the strength of his or her case.
4. Try to stay on the subject. It's easy to get sidetracked into discussions of past events or problems other than the one being grieved. The time and energy wasted can be put to better use trying to solve the immediate problem. If you feel the conversation has strayed away from the main topic, point it out and suggest that everyone return to the business at hand. If necessary, agree to meet at some future time to discuss the additional problems which have surfaced in the discussion.
5. Do not lose your temper, or allow the grievant to do so. As you know from arguments with your family and friends, angry people do not think as clearly as calm ones. They may say things they do not really mean and sometimes lose the respect of the people with whom they are dealing. If emotions start to get out of hand, call a recess for a few minutes or arrange to meet again when tempers have cooled down. (Check those time limits)
6. Listen carefully. Make sure that you are responding to what the supervisor is actually saying rather than to what you expect to hear. If you are not sure you understand the argument, ask the supervisor to explain it again, or restate the argument in your own words and ask the supervisor if that's what he or she meant. In this way you may be able to save everyone from one of those long arguments ending in "Oh, that's what you meant -- well of course I agree with that!"
7. Know the bottom line that your grievant will accept as a resolution to the grievance, but be willing to explore any reasonable alternative. Sometimes the three of you working together can come up with a new and better solution.
8. Once a solution has been placed on the table, you may wish to ask for a recess so that you and the employee can talk it over. Don't let the supervisor pressure either you or the employee into making a decision "now or never." On the other hand, once you have arrived at a solution, quit talking. You aren't likely to gain anything from further discussions, and you might lose what you've negotiated if you give the supervisor the opportunity to reconsider.
9. Don't bluff, make threats you cannot carry out, or stretch the truth to gain an advantage. Remember that you will have to deal with this supervisor in the future. A reputation for honesty and fair dealing will make it easier to resolve grievances in the long run.
10. If you are unable to reach an agreement in the meeting, inform the supervisor that the grievance will be appealed.
Whether the grievance is settled at the first step or appealed be sure to follow through. Check to make sure that the terms of any agreement are being carried out. If an appeal is necessary, prepare the grievance forms and file them as required by your contract. If the next step is to be handled by a Field Representative, notify the local Field Office immediately and forward the complete grievance file, including notes about the meeting with the supervisor.
Don't forget the grievants. Take the initiative and keep them informed about what's happening all through the processing of their grievances. Give them copies of the written grievances filed in their behalf and let them know how to contact you if they have any questions. And if you have any questions about tactics or procedure or about the acceptability of a solution, contact your Field Office.
If you are unable to resolve the grievance through informal or Step One negotiations with the supervisor, or if for any reason it is inadvisable to try to do so, you must reduce the grievance to writing. Your purpose in writing the grievance is to identify the grievant and to state clearly and concisely the nature of the grievance and the desired remedy. A typical form is that used for Supervisory Unit grievances shown in the forms section.
Grievance forms such as the one shown usually ask for six types of information, all of which should be in your grievance file before you begin to write:
Who: The grievant's name, job class, work location, employees agency, etc.
When: Often information concerning more than one date is required, such as the date on which the event or action giving rise to the grievance occurred, the date on which the grievance was discussed with the supervisor, and the dates on which any previous grievance steps were filed.
Which: Contract article(s) violated.
Where: The exact place where the grievance took place--the office, desk, machine, etc.
What: What happened? All that is usually required is enough information for management to be able to identify the event or action. For example, state only that "On March 31, 1990, May McKeever was laid off from her position as a Systems Analyst I with the Department of Labor..." rather than a description of all the events leading up to the layoff. This information is usually included with the "why" in a statement of the "Nature of the Grievance."
Why: Why does the event constitute a grievance? This is the heart of the grievance, usually written under a heading such as "Nature of the Grievance." Some forms specifically ask for the sections of the contract which the grievant alleges have been violated. Remember that it is possible to have a legitimate grievance without being able to point to a specific clause of the contract. (See "Defining Grievances")
In addition, every written grievance must include the remedy or relief sought by the Association in behalf of the grievant. Developing an appropriate remedy is probably the most difficult part of writing a grievance. Remember that the purpose of the remedy statement is to declare clearly what must be done to protect the rights of the grievant and to ensure that the Employer's obligations to that employee are met. Be sure to ask for nothing less than full compensation, that the grievant be "made whole, including . . ." back pay, removal of documents, or whatever else may have been included in the grievance.
If you have any doubts about how to write up a particular grievance or remedy, call your Field Office. After the grievance form is complete, distribute copies to the appropriate people. Be sure to document receipt of the official copy by the person designated in your grievance procedure, either by sending the form by certified mail or by hand delivering it and obtaining the recipient's initials and date of receipt on your copy. Make sure the grievant gets a copy, too.
Documenting the investigation carefully as you conduct it is the best way to ensure that all the essential information is available and can be verified prior to further processing if necessary. If your records are complete and dependable, a considerable amount of wasted time and effort can be avoided by the field staff. Remember, too, that the grievance records you compile will assist APEA negotiators and staff in spotting patterns in grievances and settlements, and in identifying any problems with the contract which should be discussed during the next set of negotiations.
Your records will be complete if you follow this procedure each time you handle a potential grievance:
1. Open a grievance file by completing the "General Information" section of the APEA Grievance Log. Be sure to obtain a current mailing address and telephone number so that the grievant may be contacted easily.
2. Use the "Investigation Notes" section of the form to record all the information you collect concerning the grievance. Be sure to indicate the source of the information and the date upon which it was obtained. Record the names of all the people with whom you discuss the grievance and the content of these conversations.
3. Copies of all pertinent correspondence, documents (evaluations, leave slips, letters of warning, etc.) and agency regulations (SOP's on sick leave reporting procedures, for example) obtained in the investigation should be included in the grievance filed.
4. Retain copies of any grievance forms filed. Record date of filing, etc., in the "Grievance Processing" section of the Grievance Log.
5. Document any negotiated settlements to the complaints or grievance. Write out the terms of the agreement and have each of the parties to it sign and date the statement. Keep the original for the file.
6. If you send either Form Letter #1 (agreement not to proceed with a grievance) or Form Letter #2 (notification that a complaint is not subject to a grievance procedure, keep a signed copy. This is critical, given APEA's fair representation responsibilities.
7. Forward the file to the local Field Office after you have completed your investigation and resolved the complaint or at the point in the grievance procedure when further processing must be undertaken by a Field Representative.
Throughout your investigation of every complaint and grievance, remember this cardinal rule:
If you can't document it, you can't prove it
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Last updated on November 29, 1999