Contract Enforcement Overview – The Enforcer “Grievance”
Provided by Pat Shaw AAUP
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Background and Context
A. Collective Bargaining Agreements as Enforceable Contracts.
The differences between a grievance procedure that provides for the ultimate disposition
of a contractual dispute by a third-party, neutral decision-maker and one which provides for an
“in-house” disposition include the integrity of the process itself and the degree of confidence in
its outcome.
The power of the typical grievance procedure to encourage and promote resolution of
disputes is, in the main, the ability of either party to insist that the dispute be resolved by a
neutral third-party, an arbitrator.
State laws regarding arbitration and the enforceability of labor arbitration awards
differ one from another and from Federal law. However, especially in those states for
which public employee bargaining has a well-developed history, state laws have followed
the lead of the Federal scheme.
2. Organization and Protocol
Every union has its own dictates, protocols, and practices relating to the processing of
grievances and decisions regarding the disposition of grievances.
One must first turn to the union’s constitution and bylaws to determine whether and how
the union’s prime governance documents address the topic of grievance processing. In addition,
there are policies and practices that pertain to grievance handling and that affect the work of a
grievance officer and the distribution of authority within the union of decision-making regarding
grievances.
Grievance officers and the other elected leaders should have a clear understanding their
respective roles and authority.
Examples: Who or what body decides the matter of moving a grievance to arbitration?
Of withdrawing a grievance? Does the grievance officer have the authority to settle the
grievance without prior consent of the executive committee? Because UNAC represents faculty
at three MAU’s, conflicting or inconsistent positions on a contract issue might emerge. Who or
what body finally decides the union’s position on the issue?
The first source to examine regarding the distribution of authority within the union
pertaining to grievances is the union’s constitution and bylaws. Although the constitution is
silent on the matter, the bylaws address it.
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Article IV (Officers), Section 1.a.ii instructs that the officers of the UNAC include
“Three (3) Organizational Vice-Presidents who will also serve as Grievance Officer, one each
from the University of Alaska Anchorage, the University of Alaska Fairbanks, and the
University of Alaska Southeast.”
Article IV, Section 2.c.i adds that the Organizational Vice Presidents “coordinate contract
development, grievances, communications and public relations, benefits, professional
development, social, legislative, and political education activities at each campus.”
Actual practice and established expectations regarding grievance handling authority often
varies from the literal reading of governance documents. Because I do not yet know the facts, I
cannot contribute to our collective understanding until we are together and we spend some time
discussing this important matter.
3. Parsing the Grievance Procedure
There is one overarching goal of any grievance procedure: solving problems. Most of the
rest ---how elaborate or simple the process is or how many steps there are or who meets with
whom--- is subordinate to the question of whether the procedures work in solving problems and
resolving disputes.
Rule 1, 2, and 3 of grievance processing is “never give the administration two bites of the
apple.” That is, assure that any grievance you are shepherding is procedurally exact. Do not
miss a time limit. Otherwise, the day will come in an arbitration or perhaps in an earlier step
when the administration will assert that the grievance must be dismissed because of some
procedural flaw.
Arbitrators, who earn their living arbitrating, appreciate the opportunity of being more
Solomonic than Solomon and they may be prone to actually splitting the baby: holding that the
grievance is arbitrable but denying it on its merits. Deviation from the procedural requirements
of the contract might afford the administration a second bite of the apple.
Please review Article 7 (Resolution of Disputes) very carefully. Also, please have a look
at Article 8 (Construction of the Agreement).
4. Processing the Grievance
A. Identification: Does the matter constitute a “grievance,” a “complaint,” or neither?
B. Investigation: typically an ongoing process, from the first communication with
the potential grievant to and beyond the earlier steps of the grievance procedure. Goal: to know
the facts more completely than anyone including the grievant but certainly better than the
involved administration grievance representatives.
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C. Drafting the Grievance (which may precede even the initial investigation depending
upon the circumstances).
D. Presentation. The primary purpose of a grievance meeting at any step is to resolve it
or, at the least, to lay the groundwork for its resolution. A second but important purpose is to
gather information, of two sorts: relevant facts which, more often than not, will be more and, in
one degree or another, different than what you know going in to the meeting; and, a clear
understanding of the administration’s position on the grievance.
5. A Legal Detour
A. Weingarten rights and Weingarten “rights.”
Here is the short course on these rights:
The employee can request union representation before or at any time during the
interview. When an employee asks for representation, the employer must choose from among
three options : (1) Grant the request and delay questioning until the union representative arrives;
(2) Deny the request and end the interview immediately; or (3) Give the employee a choice of (a)
having the interview without representation or (b) ending the interview. If the employer denies
the request for union representation and continues the meeting, the employee can refuse to
answer questions.
B. The Duty of Fair Representation.
Commandment Number 1: Thou shalt not make a decision based solely upon concern
about DFR liability.
Commandment Number 2: Thou shalt not act in a manner that is arbitrary,
discriminatory, or in bad faith in processing or not processing a grievance.
Commandment Number 3: Thou shalt exercise sound judgment and common
sense in processing or not processing a grievance.
Too often, unions, anxious about a possible allegation of a breach of the duty of fair
representation, make expensive and misbegotten decisions. Assuming that decision to process a
grievance or not to process a grievance at all or further along in the grievance procedure is made
in good faith, that reasonable diligence and effort has been expended in investigating the merits
or lack of merits of a grievance or a potential grievance, and that the union has not acted in some
grossly negligent fashion (e.g. missing a key time limit), you have no DFR concerns. This is not
to say that a member won’t threaten to bring a DFR action or even do so. Unfortunately, there is
nearly unfettered liberty to sue or file an administrative complaint with the labor board. But, you
will have no concerns about liability.
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6. The Difficult Grievant.
It’s bound to happen. There will come a time when you are called upon to represent a
grievant who is hostile, distrustful, confrontational, irrational, or disingenuous. Then, there will
be the grievant who is represented by an attorney.
7. Disciplinary Cases
The stakes rarely get higher than when a faculty member is confronted with possible
discipline. Certainly this is so when the possible penalties include suspension or termination.
But, for both personal and professional reasons, even a formal warning or reprimand can be a
cause celebre.
Factors in Analyzing Disciplinary Problems:
Seriousness of the alleged conduct.
An isolated incident? Repeated instances? Pattern of behavior?
Work History – How long has the faculty member been employed? What is the quality of the
faculty member’s work?
Extenuating Circumstances – Are there extenuating or mitigating circumstances? For
example: are there personal or family problems? provocation?
Notice – Do the institution’s policies clearly proscribe the alleged conduct and the
disciplinary consequences of engaging in such conduct?
Past Enforcement - How have similar cases been dealt with in the past both within the
department and the entire institution? Have the rules and policies been enforced consistently?
Has the level of discipline been administered consistently?
Effects on colleagues – What effects might an administration’s decision to impose severe
discipline have on other faculty? What effects on other faculty might the union's decisions
regarding a discipline problem?
8. Arbitration
This workshop began with a discussion of the role of arbitration in the enforcement of
collective bargaining agreements. We add but a few things related to arbitration which is itself a
fine topic for a workshop.
Over the last few years, I have conducted on-site workshops on arbitration. Going back
to my early days as a union side lawyer, I urged the leaders of union clients to identify among
them one or a couple of individuals who could, with guidance and assistance, serve as the
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union’s representative in arbitrations, at least the simpler cases in which the stakes are not high.
This workshop serves two primary purposes. First, it educates those in the union’s leadership
and those directly involved in grievance handling about the basics of arbitration which, for
certain cases and with some assistance from local counsel, leaders, or staff, can be handled
within the union itself. Second, and more commonly, this workshop provides guidance in
readying a case for arbitration; thus, even if the union’s lawyer will be handling of the
arbitration, there is much the savvy union can do in reducing the costs.
I remain convinced that faculty unions include among their leaders and activists
individuals who could do a very good job in the role as advocate in an arbitration. However, I do
concede that on those relatively few occasions when academic unions do arbitrate, the cases
chosen to be arbitrated are seen as simply too important not to have a lawyer provide
representation (even if ---truth be told--- it could be done better by someone within the union).
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In its earliest days, labor arbitration was viewed as “rough, but speedy justice.” These
days, arbitration is both less rough and less speedy. By and large, those who serve as arbitrators
are professional arbitrators and are thus better qualified, more sophisticated, and more deliberate
in rendering their awards; and the “speed” part has been pretty well lost by the ubiquitous
involvement of lawyers.
To be sure, arbitration remains less costly and less time-consuming than a typical suit on
a contract, but it is surely more costly and more prolonged than it was even twenty years ago.
For both practical and policy reasons, the decision to arbitrate is weighty. As a practical
matter, those involved in the case ---the grievant(s), of course, the grievance officers, other union
leaders, potential witnesses--- will be called upon to spend a good bit of time preparing for the
hearing. Then, of course, there is the cost: lawyer’s fees; the arbitrator’s fee; the cost of a
hearing transcript if there is to be one which is far more often the case than not.
As a policy matter, because arbitration is the last step of the grievance procedure, it must
be resorted to with care. The better the quality of a union’s decisions about arbitration, over
time, the more credible the union’s threat to take a case to arbitration. And, it works the other
way around: a union’s losing record in arbitrations diminishes its credibility with the
administration and, not to be forgotten, its members.
To be sure, unions can and must take the occasional “losing” case to arbitration.
There are also instances in which employers, including academic employers, force unions
to arbitrate even the clearest cases of contract violations because the employer is seeking to drain
the union’s treasury.
In the best and most constructive bargaining relationships, arbitrations are exceptional.
The parties are looking for solutions to problems and disputes, not drawing lines too readily or
too deeply.
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9. Educating the Membership.
Most faculty covered by collective bargaining agreements have only the dimmest notion of what
a collective bargaining agreement is, what is provided in their own agreement, and how it is enforced.
The more knowledgeable the members are about their contract and its workings, the more effective and
vigorous the union. Chapters use a variety of methods for educating their members about the
contractual grievance procedure and the importance of at least a basic understanding of that procedure.
10. Questions and Problems
Contact your President for information and guidance. Keep information flowing with the
Executive Board
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