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State Employees Union
Stewards' Corner: March 1, 2005
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Summary of Rules that the Steward Should Follow While Handling the Grievance
Grievance Fact Sheet (pdf document)
The grievance procedure is the means by which a union protects the contractual rights of employees. In its simplest form, a grievance is a disagreement between one or more employees and management. Unfortunately, a grievance means different things in different instances and is not so easily understood.
As a state employee, it is necessary to look to the language of the contract between the WSEU and the State of Wisconsin. An examination of the contract shows a clearly narrow definition of a grievance. Article IV, Section 1 states: "A grievance is defined as, and limited to, a written complaint involving an alleged violation of a specific provision of the agreement."
Although this language restricts grievances to disagreements involving specific contract language, it does not preclude grievances based on work rules or established past practices or discipline for just cause.
Violations of Employer Work Rules
Article XI, Section 7 states that both the application and interpretation of work rules may be challenged through the grievance procedure. A work rule is defined as: "rules promulgated by the employer within its discretion which regulate the personal conduct of employees as it affects their employment, except that the employer may enforce these rules outside the normal work hours when the conduct of the employee would prejudice the interest of the state as an employer."
These work rules must be reasonable and not in conflict with the contract. Additionally, the rules must be applied in a reasonable and consistent manner.
Past Practice
Although certain practices are not covered in writing, they may be grievable on the basis of established past practice. Arbitrators have generally noted that a contract is not limited to the written provisions, but that a peaceful relationship is based on a pattern of conditions, practices and understandings that provide a framework for contract interpretation. These conditions, practices and understandings, therefore, will be binding on the employer.
There is no ironclad rule for determining which practices are or are not binding. There are, however, a number of general guidelines to follow.
First, the union must show that in similar circumstances the employer acted in the same way. If management can show that the present situation is unique or that similar situations often resulted in different actions, then a past practice will not exist.
Second, the situation must have occurred repeatedly. No past practice can be established as the result of an isolated incident.
Third, not only must there be repeated occurrences, they must take place over a substantial period of time.
Finally, both parties must accept and understand the practice. Employees will not be protected by past practice simply because the employer was unaware of the violation of a rule.
Past practice can be used to protect workers' rights in two ways. First, past practice may provide evidence of the appropriate interpretation for specific contract language. For example, a contract states that all discipline for minor offenses shall be progressive in nature. An employee who has been insubordinate on three separate occasions is then fired by the employer. The employer claims that his actions are progressive because the employee received a verbal warning on the first offense, a written warning on the second offense, and was fired as a result of the third offense. However, the union may be able to get the employee reinstated if it can show by past practice that the third step in discipline for similar offenses has been a suspension and not dismissal.
Second, past practice can be used to add rights where a contract is silent. For example, employees might be allowed fifteen minutes clean-up time prior to check out each day. Even if this is not provided for in the contract, the employer may not unilaterally withdraw it. Practices that are not contained in the contract are less secure than those rights established in writing.
It should be noted that where past practice is in conflict with clear and unambiguous contract language, the contract language will override past practice. Also, check the language of the contract. Language that provides the employer "shall" do something or the employer "will" provide something is called nondirective language and generally mean that "may not" is implied to the contract language if no past practice controls. For example, if the contract says "employees may be granted leaves of absence," this means the right to leave may or may not be granted by the employer depending on past practice and other considerations. It is clear that it also means that the leave cannot be unreasonably denied nor can it be absolutely guaranteed in all cases. The steward should research past practice and use common sense in interpreting such language.
The key to good presentation is preparation. The effective steward will be clear, confident, and well-informed. You must investigate the grievance, study your facts, and be prepared to present them to management.
It is desirable to outline what you wish to say before you talk to the supervisor. You should not have a detailed script, but your outline should be organized to guide your presentation, listing the facts of the case and the points you wish to cover. It is important that the steward anticipate and address the supervisor's questions or comments.
Discussions between a steward and supervisor should not be an exchange between and employee and management, but instead should be seen as negotiations between equals. As equals, your relationship should be guided by courtesy and mutual respect. This can result in efficient settlement of grievances at the earliest possible stage.
There are a number of points of strategy to remember in discussions with management.
First, the discussion should be focused on one issue. Do not allow management to concentrate on other matters - keep the discussion on track. If the supervisor questions you or the grievant on an unrelated matter, remind the supervisor of the nature of the grievance and return to the matter at hand.
Arguments and discussions between the steward and the grievant should be avoided when in the presence of management. This should be made clear by the steward to the grievant(s) before any meetings are held. If disagreements arise during a meeting, the steward should ask for a recess to caucus with the grievant.
Identify the differences between management and the union and try to eliminate as many of those differences as possible. Avoid getting excited and losing your temper. A clear head is important. If it is necessary to raise your voice, do it for good reasons, not because you lost your temper. It is natural for the inexperienced steward to be nervous during his/her first grievances. As the steward gains experience, this nervousness will be replaced with confidence.
The grievance meeting is no place for threats or bluffs. By using such tactics, the steward will in all likelihood increase the supervisor's resistance and push the grievance to the next step. A reputation for honesty and knowledge of the contract will serve the steward much better.
The grievance procedure should run smoothly and quickly. The steward should not allow the employer to delay the proceedings unless the request is based on a sincere desire to obtain information needed to settle the grievance. All time limit extensions must be placed in writing and signed by both parties (the employer and steward). Oral agreements are often unenforceable in labor law, so always get time limit extensions in writing. If necessary, do not hesitate to invoke the time limits set forth in the contract. If grievances are allowed to become stale, the steward is likely to lose the grievant's support and trust.
The steward should remember that each grievant has the right to fair representation. The steward should therefore avoid any negotiations with supervisors that involve trading grievances. Each grievance must be discussed on its own merits.
Finally, do not be pushed into abandoning your argument prematurely. the steward should maintain a position until there is clear proof to the contrary.
It is not possible to tell the steward specifically what to say in a grievance. The words and arguments will obviously change with each grievance. However, grievances generally proceed in a similar manner. The following outline may help the steward design the grievance presentation.
1. Steward's Opening Statement
The steward will generally be the first to speak. This will consist of a brief statement of the concern and a request for an explanation. The steward will state what management has done or failed to do.
2. Management's Reply
The supervisor should then justify their actions. It is important to take good notes during the supervisor's reply. Each of the points made should be addressed later in the meeting.
3. Steward Questions the Supervisor
It is important that the steward discover the whole story behind management's actions. The supervisor's reply will often be sketchy and provide the steward with only a portion of the information needed. Therefore, the steward must ask questions to press for other facts and reasons.
4. Management Replies
Again, it is important for the steward to take notes.
5. Steward Rebuts Management's Justification
Relying on the information the steward has collected, the supervisor's reasons must be rebutted and the steward must explain why the contract has been violated. It may be desirable to ask for a short recess to discuss management's statements with the grievant.
The steward must conclude the statements by returning to the central issue in the grievance and why the contract has been violated.
6. Steward's Request for Relief
The steward should state what needs to be done to remedy the grievance.
7. Management's Reply
At this point, the supervisor will probably contest some or all of the points made by the steward. The steward should listen and take notes on the state's objections.
Summary of Rules that the Steward Should Follow While Handling the Grievance
1. Do not waste time arguing over personalities. Stay away from name-calling. It is not who is right, it is what is right that counts.
2. Do not get sidetracked in your discussions. Stick to the point. Let the supervisor talk, but stick to your case and bring him/her back in a tactful but firm manner.
3. Approach the supervisor as a human being. If you antagonize him/her, he/she may not cooperate in the resolution of the issue at the pre-filing step.
4. Bluffing does not win grievances. It will pay off more in the long run to be honest and truthful. With integrity comes respect.
5. Be a good listener. listen with patient interest even when you think the grievant is wrong. Do no reject anyone's statement until it has been examined.
6. Be calm! Keep cool! Few people can think straight when they are angry.
7. If you disagree with the supervisor, do so with dignity and respect. Remember that you and the supervisor have to work together and settle other issues in the future. You seek agreement, not conquest.
8. Determine the way you will present the case before you see the supervisor. If you take the grievant with you, do not disagree in front of the supervisor. If you hit a snag, ask to caucus, you have the right to do this. Then straighten out the matter and resume the discussion with management.
9. Be objective. Keep an open mind. A prejudiced view can distort the truth and lose the case for you.
10. If you have won your case, stop talking. Do not rub it in to management.
11. Do not horse-trade grievances. That is, do not give up one grievance in order to get a favorable decision on another. Insist on settling each grievance on its merits.
12. Appeal to management's self-interest. You are appealing to common sense reasoning, not asking for favors.
13. Do not take up grievances that do not exist and do not be afraid to tell the worker that they do not have a grievance; but if a worker demands that a grievance is filed, a grievance must be filed.
14. Remember that management has rights, too. Both the union and management must live up to the terms of the agreement.
15. Keep written records of grievances.
16. Do not be afraid to admit if you are wrong. Humility is not a sign of weakness; rather it is a sign of a good leader.
17. If you cannot settle the grievance, take the case to the next step in the grievance procedure right away. Let the supervisor and the grievant know that you are going to do this.
1. Should I save my best arguments for arbitration?
No. Make all arguments at the earliest meeting. At arbitration some agencies have argued that the union has waived its right to use all elements of just cause as a defense because not all arguments were raised at the Step 2 meeting.
For example, an employee is disciplined for tardiness. At Step 2, the union may state that the tardiness did take place, but that the penalty was not consistent with progressive discipline.
Later at arbitration, management may assert that the union has waived the right to raise the argument that it was denied important information that was relevant to the case, since the union did not mention it at Step 2. Therefore, management states the union can only raise all appropriate just cause arguments that were made at Step 2, in addition to whether appropriate for the offense.
Further investigation by the steward may permit new arguments to be made at arbitration. check your pre-discipline checklist for other arguments to be incorporated into the grievance. If you think the management representative has not properly described the argument or facts presented at the hearing, notify the management representative in writing of what has been left out or been misrepresented. It could be useful if the grievance is later arbitrated.
2. Is it more effective to file separate grievances involving a specific incident when management has violated more than one section of the contract?
No. Don't file several grievances over a single management violation. It can fragment the issues in dispute.
The proper was to resolve a grievance is to file a single grievance listing all the different sections of the Contract that have been violated. Additional procedural violations committed by management in processing the grievance should be added to the original grievance. The procedural violations should not be filed as separate grievances. The same principle applies to both language and discipline grievances.
Some locals also have a practice of filing a number of grievances over a single management action and then merging the grievances at Step 2. It takes management's agreement to allow all the individual grievances to be merged. Filing separate grievances and merging them is a poor practice.
3. Is it OK to file grievances using the name of the steward?
No. File grievances under the name of the individual, or in a group or union grievance the spokesperson affected by the contract violation, not the name of the steward or chief steward. Tracking grievances for those not named on the grievance is very difficult. Be sure you are broad in your description and don't leave out employees in other work areas if they should be included.
If more than one person is covered by the grievance, try to list the affected persons or describe as specifically as possible the group of persons that you believe will be impacted by the grievance.
4. The State has failed to proved a timely Step 1 response. What should I do?
Even though the State is not holding up its end of the bargain, you should still follow the correct procedures. Don't let management's inaction stall the process. If you do not move the grievance as outlined in the Contract, and the case is finally arbitrated, management can argue that you did not adhere to procedures, potentially damaging the case before the arbitrator.
If a Step 1 meeting is not held within the period required by the Contract, and no contact has been made to extend the time periods, then the grievance must be immediately appealed to Step 2.