Grievance Procedures

1. Grievance Procedures • Contract administration is heart of labor-mngt relationship • Fundamental principle: Obey now, grieve later • Functions of Grievance Procedures and Arbitration • Terms must be interpreted on day-to-day basis • Terms must be adapted to changing circumstances • Demands for adjustments to fit local conditions must be accommodated • Protects contractual rights and provides means of appeal • Keeps vast majority of employment disputes out of court

2. Issues in Contract Administration • Discipline • Discharges often grieved, regardless of merit, for political reasons • Work assignments • What job classification gets work? (Job security issue) • Individual job assignments • E.g., promotions, layoffs • Supervisors doing production work • Working conditions • Health and safety • Subcontracting • Past practice • E.g., eliminating clean-up time 15 minutes prior to end of shift

3. Grievance Procedures • Grievance Procedure Structure • Effects of Grievance Activity on Productivity • Research shows that plants w/ high grievance rates perform worse than those w/ low rates

4. Grievance Arbitration • Historical Evolution • War Labor Board (WWII) stimulated widespread adoption of grievance arbitration • “Steelworkers Trilogy” solidified role • Courts should not consider merits of G. when deciding whether case should be arbitrated • All disputes arising out of CBA should be resolved by arbitration, unless issue is specifically excluded (arbitration is quid pro quo for giving up strike) • Court should not review substantive merits of arbitration decision (only whether due process procedures were followed)

5. NLRB deferral to arbitration • G. over CBA clause may allege ULP • E.g., Er gives work to nonU Ees outside barg unit • G. would claim violation of CBA, ULP would claim discrimination • Where G. contains ULP, NLRB will defer to arbitration provided: • Parties agreed in CBA to be bound by arbitration • Proceedings were fair and regular • Result is not inconsistent w/ NLRA

6. Arbitration Procedures • Selection • Ad hoc (more common) or permanent umpire • Presentation • Comparable to court proceedings (examination and cross), rules of evidence more liberal

7. Discipline • Just Cause • Clear and convincing evidence that disciplinary offense was committed by G. • Disciplinary action taken was appropriate for offense committed • See Table 9.7: “Seven Tests” • Considerations • Purpose of Discipline • Corrective, not punitive • Work rules must be reasonable, clear, state possible consequences of violation, be administered consistently

8. Discipline • Considerations • Progressive Discipline • Discharge is final step • Burden and degree (quantum) of proof • Burden for all disciplinary actions rests w/ mngt • Degree • Beyond reasonable doubt • Clear and convincing • Preponderance

9. Discipline • Considerations • Nature of Penalty • Few offenses merit discharge for single act • Arbitrators reluctant to modify suspensions, less hesitant to reduce discharge to suspension • Arbs look to previous practices, ‘precedents’ established by other arbitrators if no previous practice

10. Discipline • Considerations • Mitigating circumstances • Mngt contributed to problem and must assume some responsibility • Ee’s work record • Long, good record might mitigate even serious offense • Patterns • In discharge cases, discharge upheld ~50% of time • Full back pay, 20% • Partial back pay, ~10% • No back pay, ~ 20%

11. Grievance Procedures • Evaluation • Wildcat strikes • G. procedures effective in avoiding • Time delays and cost • Average time from filing of G. to award over 6 months • Cost to each side of one-day arbitration may be several thousand dollars • Expedited arb developed as alternative, esp. in discipline cases • No lawyers, transcripts, briefs

12. Rights and Responsibilities • Duty of Fair Representation • In return for right to exclusive representation, U must represent all members of barg unit fairly and in good faith • Violations include arbitrarily ignoring meritorious G., processing G. in perfunctory manner, bad-faith conduct, refusal to handle due to personal hostility • Unions increasingly reluctant to drop grievances of questionable merit short of arbitration for fear of being sued • Ee’s Right to Representation • Ee who believes that discipline will result from meeting with management has right (given U.S. Supreme Court’s interpretation of Section 7) to insist that union representative be present (Weingarten rights) • NLRB in 2004 reversed NLRB’s 2000 decision to extend Weingarten rights to non-union employees

13. Non-union Workplace Dispute Resolution • Basic element of formal nonunion dispute resolution procedures is open-door policy formalized by specifying process for appealing decision of worker’s immediate manager • One or more elements sometimes added to this basic nonunion grievance procedure: ombudspersons, peer review panels, and arbitration

14. Compulsory Arbitration of Employment Disputes • U.S. Sup Ct has allowed (non-union) employers to impose as condition of employment requirement that any employment dispute be resolved by arbitration (even a dispute arising from statutory right, such as Title VII) • Issues: • Cost • Arbitrator selection • Limits on awards