Presenting
the Grievance
3
It’s Showtime
You, the grievant and management’s representative: some procedural basics about presenting the grievance.
Management Tactics in Grievance Sessions
Tricks to look out for when you go head-to-head with the opposition.
Negotiating in the Grievance Process
Don’t make it personal, negotiate over interests, keep your member’s best interest in mind, but look for mutual gain.
Unwelcome Surprises
What you don’t know can kill your case. Handling the unexpected in the grievance meeting.
Don’t Settle for Management’s “No!”
When management responds in the negative, or doesn’t respond at all, you don’t have to take it lying down. Here are some strategies for dealing with grievance denial.
Arbitration: The End of the Line
The final step in the grievance procedure is arbitration, if the union sees its case as strong enough. There are both pluses and minuses to taking this route.
Grievances That Win at Arbitration
There are steps you can take to improve your chances of winning in the arbitration process.
Turning a Losing Grievance into a Winner
You’ll lose some, but losers can be turned into winners as you work to build the union.
Looking at the Big Picture
Sometimes there are more reasons to pursue a grievance than just one grievant’s complaint.
In the world of grievance presentation, as in the world of sports, the players who are prepared and who have done their homework are the most likely to win.
If you’ve followed the guidelines offered in Chapter 2, and done the proper investigation and research, you’re well on your way. As for presenting and arguing grievances, there’s no method that’s guaranteed to work every time, but there are some things that work well more often than not. This chapter can help you learn to spot the potholes, the slippery steps and the bear traps in presenting your case.
IT’S SHOWTIME
If the union decides to grieve, you must prepare both yourself and the grievant for the best possible presentation.
Although any grievance procedure involves facts, personalities, strategies and timing, it helps to think in basic terms. Try to keep your eye on the ball by forming a case in your mind, and by constantly revising.
After reviewing your written grievance for completeness and accuracy, evaluate it using the three rules of evidence:
1 Opinions vs. facts. Opinions are what people think; facts are what people see or hear. You need to weigh opinions differently than you weigh facts.
2 Facts vs. hearsay. Hearsay evidence (“John said he overheard Sally tell Nancy …”) is not factual. Try to talk to the original source.
3 Facts must be relevant. What relates directly to the problem at hand?
Who
Although it may seem like a strange thing to debate, some unions discourage bringing the grievant to the meeting. Others demand it, but many let the grievant and steward decide.
Taking the grievant makes strategic sense because it involves the grievant in the process and shows her exactly what happens. It gives you, the steward, an ally at the table. It shows management that workplace issues involve real people—not just an employee number.
Generally, the steward does all the talking in presenting the case to the supervisor. Sometimes it’s effective for the grievant to participate on certain points. You should discuss and agree on these issues beforehand with the grievant.
But only bring the grievant if:
■ you have prepared the grievant about what will happen at the meeting: what you will say, what you think management will say. The grievant must understand that you are conducting the meeting for the union and your lead must be followed.
■ you have prepared some nonverbal signals with which to communicate in front of each other—passing notes, a hand on the wrist, etc. If something goes awry, you and the grievant both understand you can ask for a caucus and leave the room to regroup.
■ it makes strategic sense for the grievant to talk about some aspect of the case. Rehearse with the grievant what she will say and when it will be said. Grievants are particularly effective because they can describe firsthand what happened and how it affected them.
■ the grievant can emotionally handle the situation. Weigh, as best you can, the ability of the grievant to play her role without flaming out, taking a swing at someone or becoming so emotionally out of control that your case could be hurt.
Where
No matter what the practice has been regarding where union and management convene for grievance meetings, figure out where you will feel most comfortable and confident and ask for it.
If management won’t buy your suggestion of the union hall with lots of members in the hallway, at least get a neutral area that’s not a management stronghold like a management office. Or recommend taking turns on choosing locations. The choice of room won’t win or lose the grievance, but it can help you and the grievant feel more comfortable.
How
Recognize that the grievance meeting is, in fact, a negotiation.
Determine your walk-away winning position—the best you can get and your bottom line—as well as what the union will settle for that’s still acceptable, but doesn’t undermine the contract or a member’s basic rights or seriously flaw future dealings on the issue. In accepting compromises, it’s not uncommon for the union or management to stipulate that the settlement is not intended to set a precedent.
Always devise fallback positions—particularly when the grievant hasn’t been a total innocent and the issue is serious, like a heavy suspension or termination. You’ll want to review fallback positions with the grievant, but the grievant does not have the final say on settlement. That’s because the grievance is an assault on the union and its collectively bargained agreement, not just against the individual and the settlement he or she wants. If you can’t get an acceptable compromise from management, the grievance should go to the next step.
Familiarity with these issues will increase your confidence and prepare you for the more weighty issues involved in grievance handling.
Checklist
Once you’ve formed the basis of the case, then you need to think through possible pitfalls. The following checklist will help you review your strategy:
1. BUILD YOUR BEST CASE.
Decide which facts are the most convincing; keep a list so you can refer to it; show why it’s in everyone’s best interest to settle this now.
2. ANTICIPATE MANAGEMENT.
What facts will the supervisor use? What remedies might be offered?
3. PREPARE RESPONSES.
Be ready with responses, rebuttals and compromises (regarding the remedies) that the union is willing to accept.
Your success in resolving the problem at this stage of the grievance procedure depends upon your careful preparation, your relationship with the supervisor and the strength of the union.
MANAGEMENT TACTICS IN GRIEVANCE SESSIONS
A grievance meeting should be a fair exchange between the union and management. The equity rule, long recognized by the National Labor Relations Board, points out that you are not just an employee at these meetings. As the steward, the representative of the union, you are an equal. The problem, however, is that managers often behave in ways that stack the deck against stewards.
A Typical Scenario
Your supervisor schedules a grievance meeting for 3 p.m., just half an hour before you’re due to leave work. You and the grievant meet in his office. He has you sit on low folding chairs, while he sits behind his desk. He starts talking about fishing, then spends time complaining about the economy. The phone rings. You finally get into the grievance when his secretary interrupts. Then the phone rings again. He finally gets interested in what you’re saying and starts firing questions at you when the final buzzer rings to punch out.
What’s Really Going On
Although this might seem to be just part of the game for the steward, it is important to understand what is going on and how it can work against you. As our scenario suggests, things to watch out for are:
■ Your physical relationship to management.
■ Management efforts to get you off track.
■ Interruption.
■ Pacing.
It Doesn’t Have to Be This Way
A handy rule of thumb is to ask yourself, “Would my supervisor treat another management person this way?” If the answer is no, then you should not expect to be treated that way. Here are some hints:
1 PHYSICAL SURROUNDINGS.
You should not be physically dominated by the supervisor— him in a big, high chair behind a massive desk, for example, while you don’t even get a place to sit and lay out your paperwork.
2 SMALL TALK.
A little chitchat is fine, but this can be used to distract you from the case at hand. Remind the supervisor what you are there for.
3 INTERRUPTIONS.
One interruption may be acceptable; more than that is just not necessary. Your supervisor would most likely have all calls held when meeting with another manager. He should do the same for you.
4 PACING.
Remember, this is not management’s meeting only—it’s just as much the union’s meeting. You, too, can control the pace. If your supervisor likes to ask questions, ask him one also. If he is the quiet type, then you can be quiet too.
Grievance meeting procedures aren’t written in stone, and may develop because stewards allow them to. Asserting your rights as an equal will force the supervisor to take you more seriously. It will also help you to win more grievances.
NEGOTIATING IN THE GRIEVANCE PROCESS
The real skill involved in grievance meetings—apart from preparation—is negotiating. Every steward should aim to become a shrewd negotiator—because every meeting with management about grievances is a kind of bargaining. You are trying to resolve the meaning of the contract in a particular situation as well as trying to demonstrate how management may have violated the contract. And you want the best possible settlement for the grievant and the union.
To get the results you want from grievance negotiations, try following these guidelines.
Separate the People from the Problem
Any grievance meeting has two elements—the merits of the grievance and the relationship between the parties involved. The mistake is to confuse the two.
For example, if you have a bad relationship with your supervisor, you may walk into every grievance meeting determined to show how tough you are. You become a hard negotiator, determined to win at any price. But usually such a stance triggers an equally hard response from management. Nothing gets settled—and nobody wins.
On the other hand, you don’t want to be a soft negotiator. If you have a good relationship with a supervisor, you may be tempted to give in more easily to protect that relationship. But that’s not good for the grievant, the union or yourself—because eventually you’ll end up feeling resentful and used.
The solution is to be soft on the people and hard on the merits. It may sound psychologically difficult to be tough and friendly at the same time. But with practice, you can learn the technique. And experience has shown that it works.
Remember that you want to build and maintain a good working relationship with the supervisor. There may be times when you must agree to disagree, but you still need to keep the lines of communication open.
With individual grievances, the best approach may be to set up the grievance as a problem that you and the supervisor can work on as partners, searching for a solution that may be fair to both sides. If you have a decent relationship with your supervisor, one approach might be, for example, “Can we put our heads together to find a way to fix this?” Above all, don’t let egos get in the way of a settlement that is best for the union and the grievant.
Negotiate over Interests, Not Positions
Perhaps the best way to reach such a settlement is to resist adopting a hard-and-fast position about an issue. In a negotiation, both parties start out with positions that are far from any likely settlement point. Negotiations then become a slow tug of war as each side reluctantly shifts its position closer toward settlement.
A better way is to begin by explaining your interests. For any grievance, the union’s basic interest is to find a fair settlement that upholds the contract’s integrity.
But management has interests, too. A supervisor is unlikely to settle any grievance in a way that adversely affects those interests. So it’s up to you to find out what that supervisor needs.
When you know what management’s interests are, you can focus your efforts on the next step—a search for workable solutions that meet the interests of both sides.
Invent Options for Mutual Gain
Mutual gains are often possible in negotiations because both parties share some interests. Inventing options can help you satisfy the other side’s interests as well as your own.
Assume that both sides can achieve something positive in each grievance negotiation—even if it is just an understanding or an improved relationship. At a minimum, bringing multiple options into a grievance meeting can provide some new energy and a different focus for discussion.
With experience, stewards can learn how and when to practice these guidelines most effectively. In all cases, the goal of these suggested strategies remains the same as for any negotiation: to win settlements that are consistent with the contract and add strength to the union.
UNWELCOME SURPRISES
No matter how well you’ve prepared a case, there will come a time when the unexpected happens. Here are some examples, and how you can deal with them.
The Grievant’s Story Changes
You’re sitting in a grievance meeting with a grievant whose story you have reviewed countless times. But in the middle of the meeting the grievant tells another part of the story that you have never heard, and it changes the nature of the situation entirely.
Try not to look surprised—and ask for a caucus. It’s all you can do.
Use the caucus to figure out how this new piece of information fits into the case. Apply your own “unjust” test: if what happened to the grievant still seems unjust, you may have to concede the new information to management as a minor point, but argue that overall, other facts are more important and contribute to the “unjustness” of the situation. If you can’t figure out a new strategy, ask for a postponement of the meeting. If the new information is too damaging, the union may have to drop the grievance. At a minimum, though, try to buy your side some time to regroup and consult with the chief steward or union representative.
Thorough preparation with the grievant and checking out the situation with a variety of people can help prevent this, but even the most experienced stewards report this happens to them periodically.
New Evidence Pops Up
Then there’s the memo or letter that you didn’t know existed, and management whips it out at the grievance meeting.
If you made an information request from management before the meeting and did not receive that particular item, that’s an unfair labor practice under the National Labor Relations Act and usually under other labor legislation as well.
If you didn’t request information, your strategy will depend on the nature of the “paper.” If it’s something other than a piece of correspondence to the grievant—a memo to the personnel files, for example, or a memo from one supervisor to another—minimize the contents of the communication by emphasizing that management did not make the grievant or the union aware of the issue.
If the “paper” is a disciplinary memo or letter to the grievant, you’re in a pickle if you are claiming that the grievant was not aware of a discipline. If the discipline was unjust for other reasons, focus on arguing those reasons as more important than the “awareness” issue.
What Policy Change?
The union leadership should keep stewards informed of new policies that result both from collective bargaining and from the normal labor-management exchanges that occur over the term of the contract.
But sometimes there’s a breakdown and a steward will find out about it when it’s too late—like at a grievance meeting.
When you’re caught with egg on your face, your touchstone again is your judgment on the unjustness of the situation. If it still seems unjust, is there something else you can hang it on—another policy, past practice or some other section of the contract? Your “quick recovery” line here is: “Despite that new policy, the action against the grievant is still unjust.”
If you come up short, make sure your union leadership knows the issue needs to be addressed in the next labor-management committee meeting or next round of bargaining.
Minimizing Surprises
In addition to thorough preparation (including asking the grievant point blank right before you go into the meeting, “Is there anything else I should know before we go into this room?”), requesting information from the employer and keeping abreast of new practices and policies, you can also minimize the impact of surprises by maintaining a credible reputation with management. If you have a reputation for being well prepared, an occasional “surprise” won’t totally devastate it. Nor will it be irreparably hurt if you have a strong, united workforce behind you.
Besides—don’t you have some surprises to spring on management along the way?
DON’T SETTLE FOR MANAGEMENT’S “NO!”
Many stewards hear the word “no” more often than they would like. It might happen like this:
A member comes to you with what seems like a clean grievance. She was bypassed for overtime, and your investigation reveals that she was most senior but was never asked. Seems like an open-and-shut case. You set up a meeting with management to get it straightened out. After all, it’s clear that the supervisor simply committed an oversight. But when you get into the meeting, management goes into this song and dance routine about how there was emergency work and the supervisor needed to assign someone without going to the seniority list.
Your jaw drops, your muscles tighten and it takes all your effort not to explode. You have just entered the world of grievance denial. What happened?
Bad Decisions
Chances are the supervisor on duty made a poor decision and management is now using the excuse of emergency work as a cover. Of course a member who was unfairly denied the overtime should have gotten the work, and the money for it, but management doesn’t like to admit it makes mistakes. So it compounds the mistake and gets the union and member angry.
Here’s another scenario. Your shop has enjoyed a particular practice for many years. There is nothing in the contract that deals with the practice but a new supervisor decides to end it. You protest through the grievance procedure and are told the grievance is denied. When you ask why, the supervisor reads you the management rights clause of the agreement.
Don’t Take “No”
We have to live with bad answers and grievance denials, but that doesn’t mean we have to accept them without fighting back.
First, explain to the grievant what just happened and make it clear that the union will not allow management to play games with what the union sees as a legitimate grievance.
Next, research and document the grievance thoroughly, if you have not already done so. Make sure that your notes of the first-level meeting go into the union’s file in case the second-step appeal is handled by someone else. Be sure that the record is complete. Talk to the chief shop steward, executive board member, or local officer so that the proper person can make the strongest case on appeal to the next step.
Always consider management’s reason for the denial, but remember that your rebuttal to that reason is not necessarily the union’s primary argument. If a member is passed over for overtime and there was no real emergency, stick to your guns about the contract language that calls for selection by seniority. If the supervisor hides behind the management rights clause in a past practice case—and they often will—insist that the employer consider the practice as part of the unwritten agreement between the sides. Show that the practice has been going on for long enough that it appears to reasonable people that this is the way both sides conduct their business.
What About No Answer?
Suppose the supervisor doesn’t answer your written grievance within the time limits set out in your agreement. Unless your contract says otherwise, the union must then choose to move the grievance up on appeal to the next step.
If you use a single grievance form that has a space on it for management’s reply, write in, “not answered in a timely manner,” and appeal to step 2. Be careful: don’t mess up on your own time limits.
When a supervisor does not reply to a grievance, it is usually because he or she is overworked, negligent, can’t make a decision or won’t make a decision. Senior managers frequently complain that their worst nightmare in the grievance process is going to arbitrations in which their lower people did not answer the appeals and the union progressed the grievance. Most of the time, they’ll settle the grievance rather than find themselves in that situation.
Keep Appealing
The key is not letting management control the grievance procedure through denial or refusals to reply. Their hope is that denial or silence might make the grievance go away.
As frustrating as it is for a steward confronted with these tactics, they cannot be allowed to divert the union from its primary task of defending members’ rights on the job.
ARBITRATION: THE END OF THE LINE
In most collective bargaining agreements the final step in the grievance process is arbitration. When labor and management can’t work out the problem through use of the grievance machinery, it’s agreed that they will submit the dispute to an impartial outsider—an arbitrator.
There are a number of positive things about being able to take unresolved disputes to arbitration, and a number of negatives as well. First, the good things.
The Up Side
For starters, the decision as to what rights the union has under its contract is made by a neutral third party. Unlike the steps of the grievance procedure, in which a series of closedminded management representatives can just say no, an arbitration results in a decision being issued by someone who isn’t connected financially or organizationally to either side. Second, private sector arbitration awards, and most public sector awards as well, are final and binding. For all practical purposes, there’s usually no appeal of an arbitration award.
Third, resolving a dispute through arbitration is almost always quicker, easier and less expensive than taking a case to court.
Finally, after a hard-fought legal battle, a formal outside finding that the employer has violated your contract rights packs a punch that a grievance settlement lacks.
But it’s important to recognize the limitations of arbitrating cases, as well.
The Down Side
There’s no need to quarrel with the fact that it’s better to win an arbitration than to lose one. But just the same, the focus of a steward’s efforts should be on resolving disputes at the lowest level, in the shortest time possible. Except for a rare situation where tactical considerations come into play, it’s a mistake to hold back when you argue a grievance, thinking you’d rather win the Big One at arbitration. In the eyes of your members, the faster you can deliver the goods, the better their union looks to them. Justice delayed is justice denied.
And keep in mind that you’ve got a responsibility as steward to use the union’s resources carefully. While an arbitration may be cheaper than litigating a court case, it’s incredibly more expensive than settling the dispute at the grievance level.
Remember that when a case goes to arbitration, you— and the union—lose control in a number of ways. The grievance steps are close to the workplace, where members are near the action. You and they have ready access to the facts it makes sense to present, and you’ve got a shop-floor understanding of the big picture—things like how winning with the wrong argument in this case might set a precedent that makes things worse for future cases.
An arbitration award can also be a big surprise—for both sides. When you settle a grievance, it’s on terms the union and the employer understand and find acceptable. Sometimes an arbitrator looking for a way to cut the baby in half will issue an award that doesn’t really give either side what they want. Worse yet, an arbitrator who doesn’t understand the day-to-day realities of your workplace can make an award that leaves both sides scratching their heads, with the issue that triggered the grievance still unresolved.
GRIEVANCES THAT WIN AT ARBITRATION
It’s important to anticipate that some grievances will go to arbitration, and to take the necessary steps to maximize your percentage of wins. Let’s look at each part of the grievance process to see how to build a winner.
Filing
Including too much or too little when you write up a grievance can come back to haunt you. If you specify certain articles and sections of the contract as having been violated, that can give the employer a foot in the door to argue to an arbitrator that other contract violations the union is claiming are after the fact and shouldn’t be taken seriously. And if you stake out a lot more ground than you actually can cover when putting forth your evidence at arbitration, it can make your entire case start to look shaky.
TIP
Write up your grievance to include enough specifics to be taken seriously, but don’t box yourself in; use phrases mentioned earlier, such as “including, but not necessarily limited to, the following provisions of the contract.” And after you set forth whatever specific relief you are requesting in the grievance, always add “and any other appropriate relief.”
Discovery
Once you’re at the stage of preparing for an arbitration hearing, the union has rights—usually under both contract and law—to conduct discovery. That means getting documents and other information from management that relate to the issues in the case. But human nature being what it is (and some crafty lawyers being who they are), it may be that by the time you’re scheduled for arbitration it’s too late to uncover some of the really juicy stuff. Your employer’s labor relations experts have already swept quite a bit under the rug.
TIP
Poke around for as much information as you can early on in the grievance process, perhaps by getting explanations from talkative supervisors about what’s really going on, or asking for copies of paperwork. Use the rights you have to obtain information needed to evaluate and pursue a grievance, so that you can get the goods before they’re gone.
Arguing
Either side can make things worse at arbitration by being too talkative or too closed-mouthed during grievance meetings. On the one hand, there’s no point in holding back when you might well have enough evidence to make the employer back down. On the other hand, if it doesn’t look likely that a case can be resolved, why let the boss know what you have now; better to let management witnesses be surprised by the smoking gun on the witness stand at arbitration, rather than giving advance warning and the time to think up a convincing story. Lots of times, knowing which cards to play and which to hold on to boils down to making a difficult judgment call, and then hoping for the best.
So when thinking about the smartest way to approach grievance processing, remember that just as with many things in life, sometimes you’ll be successful by starting at the end and then working your way to the beginning.
TIP
Never, ever, stop employer representatives from talking during a grievance investigation or meeting. Many a grievance is won when Dr. Arbitrator diagnoses a case of foot-in-mouth disease: when what a supervisor said at last month’s grievance meeting doesn’t square with what the employer’s lawyer is arguing at this month’s arbitration. The flip side of that coin is to make sure that you and the grievant don’t give management information that’ll come back to haunt you; don’t volunteer too much information.
Also, write it down! A dispute about what a management representative said at the time the grievance was processed may be heard at an arbitration many months away; notes you took at the time will be valuable.
TURNING A LOSING GRIEVANCE INTO A WINNER
It hurts when all your efforts to win a grievance fail. Even if you’ve won the last half dozen grievances you’ve presented, the sting of a loss can have a devastating impact on your co-workers. Swift action, though, can minimize the damage and sometimes even create an opportunity for something positive.
First, do damage control. Many stewards have a tendency to want to hide the losers, but rumors are going to spread anyway and it is best for the grievant and everyone else to hear it straight from you. Meet face to face with the grievant and take the time necessary to explain the situation. This may be one of the most difficult things you are called upon to do as a steward, but in the long run it will do much more for your reputation for integrity to honestly tell the story. In some cases this will be all you can do, but at least you have told the truth and you can move on from there.
In many cases, though, you can do a lot more. Lost grievances are often justice gone awry. They often underscore the unreasoableness of your employer, or the fact that arbitration is far from a perfect process. Most of all, lost grievances point out the importance of going beyond the traditional grievance procedure and using the power of the membership to pressure the employer to live up to both the agreement and past practice.
Use the Loss to Educate
Don’t whine about the loss; use it to teach something new to your membership. If it was a case of management denying the most senior person a job because a junior person was judged to have better qualifications, review this section of the contract with your members. Is the language strong enough? What has the past practice been? Was it a case of not enough evidence or witnesses to bolster your case? Use this as an opportunity to review the importance of grievance investigation, getting everything in writing and carefully preparing any witnesses.
Grievances often are lost at arbitration, a process many workers do not fully understand. This is an excellent time to discuss the arbitration process.
Consider Alternative Strategies
A gray area of your contract or a poor arbitrator’s decision can end up making your employer look petty, evil or worse. Rather than just complaining about the system, publicize it, have fun with it, and mobilize your members to force change. This can include button or T-shirt days, petitions and other tactics designed to show union solidarity and let the employer know that you are still not satisfied. It can also include informational picketing, working to rule and other strategies to pressure the employer to correct the problem. Remember to start with small, low-risk actions to build commitment before trying more elaborate schemes. Also, beyond very small departmental actions, you also need to coordinate any activity with other stewards and the local union leadership. Whatever tactic you use, showing management unity and solidarity after a loss is very important and will do much to minimize the temporary setback.
LOOKING AT THE BIG PICTURE
Many stewards don’t realize that you can achieve your objective even when filing a losing grievance. Consider the following.
Shine a Light
Nothing is more frustrating to a union advocate than to hear from management, “That’s just you complaining; none of the people you say you represent care.” Sometimes a grievance—or two or three or more—is necessary to get management to acknowledge that a particular problem is real, and needs to be addressed.
Fire a Warning Shot
There are times when it wouldn’t make sense to fight management to the death on a particular action—a price increase in the employer’s cafeteria, for example. By itself it may not be serious enough to take a case to arbitration, or it may be that the members just aren’t riled up enough about it. But it might make a great deal of sense to have a mass grievance filing, putting management on notice that their action has not gone unnoticed, and that if they try the same maneuver again, they may well have a serious fight on their hands.
Forge Employee Unity
It may well be that there is no immediate practical resolution of a particular problem. But a grievance—particularly a group grievance—might be just what’s needed to start building solidarity among those wronged by a particular supervisor or policy. If employees get it together enough to take a small action, like filing a grievance, maybe soon they’ll be ready to do whatever it takes to fight—and win—on this or a bigger issue.
It’s true that enforcing the provisions of a collective bargaining agreement is the most common reason for filing a grievance. But we need to keep in mind that there are other valid reasons for grieving, limited only by our own creativity.