Contract Administration

1. Contract Administration Bringing the Agreement to Life

2. Grievances: Definitional Issues • Definition: Usually, a perceived contract violation that is submitted to the grievance procedure (GP) for resolution. A formal complaint. Not gripes, grumbling, whining, etc. • Courts have often endorsed broader meaning than just alleged violations of what are clearly contract matters • Common law of the shop • Past practice • External statutes or common law • Implied management obligations • Good faith bargaining obligation includes the requirement that management accept and consider grievances

3. Grievance Basics • Filing usually limited to workers and unions -- why? • “Comply, then grieve” is the general rule for workers • Most GPs require written grievances at an early stage -- though possibly after an initial verbal presentation • Gives focus, prevents shifting grounds or changing the issue • Provides a basis for precedents • Reduces emotional elements, clarifies objective issues • Practical value also in deterring frivolous grievances • GPs are a key voice institution. Unions aim to give workers a voice at the workplace, and this is a key part of how that works (not just every three years at negotiations!)

4. Why Do Grievances Arise? • Mainly, to protest perceived violations and seek remedies • Labor agreements are necessarily imprecise • Parties can’t possibly anticipate everything (e.g., “just cause”) • Might anticipate that vague language will lead to different views, but be unable to work out specific agreement. Maybe it didn’t seem worth a strike and probably wasn’t (e.g., “seniority and ability will be considered”) • Outright violations due to ignorance, mistaken interpretations, or needs for expediency (intentional) • But grievances also arise for other reasons • To get something for nothing (“strategists”) • To call attention to problems, whether contractual issues or not • To gain personal attention -- a conspicuous soapbox • To make a supervisor look bad • To build up bargaining chips for later trades

5. Four-organization study Pay 17% Working conditions 16% Performance and permanent job assignments 16% Discipline 14% Benefits 14% Mgmt. Rights 7% Discrimination 6% Earlier broader-based study found discipline was the largest single category … about 33% Grievances About What?

6. Grievance Procedure Characteristics • Usually 3-4 steps, each subsequent step involving higher levels of authority for both sides, e.g.: • Step 1: Grievant and/or steward with supervisor (written or oral) • Step 2: Steward or chief steward with supervisor and IR/HR staff rep • Step 3: Chief steward and local pres. with IR/HR head and plant super. • Step 4: Binding arbitration by a neutral third party • Nearly all procedures end with arbitration, but some are “open-ended” (strikes possible), or open-ended on some issues • Important quid pro quo: GP w/ arbitration & no-strike pledge. Language on both often “read together” • Design, scope, and other specifics up to the parties

7. Grievance Procedures Structures Enable Certain Functions • Primary: To resolve problems close to their source. This is likely to lead to appropriate resolution and commitment of parties to it • Other functions (mostly unintentional) • Provide training for union and ER staff • Politics: Higher-ups’ involvement lends importance to participants and provides a conspicuous role for the higher-ups • “Buck-passing:” Lower-level officials can dodge or duck issues, “kick it upstairs” and say they were overruled (letting others take the heat for bad news)

8. Clinical approach Find basic causes of problems, not symptoms Stress fairness and communications Stress problem-solving Problems: Fairness not well defined Bad precedents possible by case-by-case focus Fairness and open communication can fuel more grievances Legalistic approach Emphasis on who’s right according to the “letter of the law” (contract) CYA mentality (cover your assets?) Can avoid bad precedents Problems May not address underlying problem Problem likely to fester and resurface Clinical and Legalistic Approaches

9. Effective GPs: Norms • Clear procedure and participant roles. Waivers of rules (e.g., on time limits) possible by mutual agreement • Supervisors need authority to resolve grievances near their source (but legalistic view often prevents this for fear of bad precedents) • Individual, objective consideration of each grievance to protect individual EE rights

10. “Horsetrading” and Related Issues • In reality, grievances often get traded off for one another in a “Step 3.5” or “shakeout session” • Both sides want to avoid arbitration costs and risks of an undesirable arbitrator decision • Advocates: A legitimate cooperative effort, sometimes needed to avoid or reduce backlogs • Courts: Union must have some discretion, a “wide range of reasonableness,” in deciding which cases to pursue, drop, or trade. Burden is on individual to show union violated its “fair representation” duty

11. The Duty of Fair Representation (DFR Obligation) • Quid pro quo the union gets for right to be exclusive bargaining agent • Complexities: Balancing individual rights against majority rights and interests • Common scenario: Grievant feels the union violated its DFR by failing to press grievance or take it to arbitration • Note: DFR suit threats are part of the reason unions press unpopular or questionable grievances

12. Legal Guidelines for DFR • The union must: • Consider all EEs • Make good faith effort to serve all w/o hostility to any • Exercise its discretion with good faith and honesty • Vaca vs. Sipes case • Union and Co. doctors agreed that grievant should not be put back on the job, so union dropped grievance • Grievant filed DFR suit, lost. Court said: • Union made good faith effort and had reasonable grounds for its decision not to arbitrate the grievance • No absolute right for grievant to arbitrate; union “owns” that right • Burden of proof is on EE to show violation

13. DFR Legal Matters, continued • Types of conduct likely to be judged violations • Arbitrariness -- no clear reason for decision • Discrimination -- race, gender, loyalty, friend, etc. • Negligence -- poor investigation, incompetence, etc. • Dishonesty -- e.g., a payoff • DFR issue concerns ERs too • Joint liability for DFR violation damage possible • Contributory negligence (e.g., bad investigation, faulty firing) • “Deep pockets theory” (Co. has resources; union may not) • Implication: Co. should try to ensure union does job well, but not interfere in internal union affairs • Key case: Hines vs. Anchor Motor Freight • Drivers allegedly submitted false receipts for reimbursement • Co. fired drivers. Union investigation supported Co. decision • Real culprit: The motel clerk. Co. and union liable for damages