What is a Grievance?
Members may often think of a grievance as any disagreement they have with management. While that is not necessarily false, sometimes there are legitimate complaints that don’t meet the threshold of a grievance. Remember, grievances are disputes between a member/the union and management. We do not write grievances against fellow members or the union.
Many situations can be resolved by Stewards discussing the issue with management. We are here to get solutions for our members to the challenges they face. However, when the response from management is not acceptable it is time to file a grievance.
Management needs to explain to our member why they are taking a specific action. It is not our job to be the company’s messenger. Our job is to hold management accountable, enforce our union contract and defend our members. Our grievance procedure is designed to advance grievances that have merit and weed out those that don’t.
Two main challenges we face during the grievance procedure:
Grievances are not filed on real violations and cases of mistreatment - members may be afraid of management or may not trust the union’s ability to win. Our ability to enforce the contract is weakened if we look the other way while our contracts are violated by management.
Too many complaints that lack merit. The union loses credibility if the grievance procedure is flooded with grievances that lack merit.
Having an understanding of when a grievance exists will help you determine when to file a formal grievance.
Six Grounds for a Grievance
Generally, a grievance exists if there is a violation of one or more of the following:
1. The Collective Bargaining Agreement, including Memorandums of Agreement or Letters of Understanding
The contract is the first place to look when considering whether a grievance exists. Clear contract violations are probably the easiest grievances to settle.
2. The Law (municipal, state and/or federal laws)
Many contracts incorporate state and federal laws. Some of the most common clauses are those outlawing discrimination on the basis of sex, race, religion, disabilities, or union activities. Violations of the Civil Rights Act (CRA), the Americans with Disabilities Act (ADA), the National Labor Relations Act (NLRA), and the Occupational Safety and Health Act (OSHA) are grievable. The Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act and the Family Medical Leave Act (FMLA) are also laws that might be cited in a grievance.
3. Management Rules, Policies or Regulations
Under many contracts, management has the right to make rules or policies that workers must comply with as a condition of employment. The union, however, has the right to challenge the reasonableness of such rules.
Management must also enforce the rules in an even-handed manner and abide by their own rules and regulations.
4. Past Practice
The violation of long standing practices, accepted by both parties, is legitimate grounds for a grievance. Deciding whether a past practice does in fact exist can be difficult. This may be the most difficult argument for the union to win. Past practices must be clear, present over an extensive period of time and accepted by both the company and the union. It is almost impossible to win if clear contract language exists regardless of the practice.
5. Management’s Responsibilities
While the management’s rights clause often reserves many areas to management’s discretion, it may be inferred that, conversely, management has certain responsibilities in these same areas.
6. Just Cause for Discipline and Discharge
Most union contracts require that “just cause” must exist for management to issue discipline or to discharge an employee. Standards have emerged that most arbitrators recognize and unions should use when pursuing this type of grievance. These standards are called “the seven tests of just cause”.