Grievance Preparation

One of the problems that union stewards face is that most cases are open and shut. And of course that most of the disciplinary grievants have put themselves into situations that can’t be helped. The union representative may be forgiven if he occasionally wishes he could deliver a blow to the head of every member who whimpers about being docked for attending the third funeral of the same grandmother.

My old friend Pete used to deal with this problem in a way that will help to illustrate the steps of the grievance process and the options available therein.

Many a time I sat in the desk behind Pete and watched how he handled grievances. Pete got around the plant a lot and usually knew what was going on before anybody came around to see him. Our agreement had a three-step grievance process. Step One involved interviewing the affected employees and filling out a form to be sent to management via the HR department. The form called for a description of the alleged violation and the correction sought. At the first step the resolutions possible were to cease the practice, adhere to the conditions of the agreement and make employee(s) whole for the losses incurred. The steward had only to jot down a few particulars and check some boxes, obtain a signature and turn in the form.

The second step procedure was a bit more complex, calling for more details, higher level signatures and the record of what had been discussed and decided at the first-step proceeding.
The third step included a request for information from the company, meaning records of previous discipline for the grievant and perhaps others, and quite a bit of other stuff; this was because the third step was reached only when the parties could not come to agreement over the matter and the item was intended for arbitration under the terms of the agreement.
As we have seen, Pete was a very poor writer. This being true, he tried to avoid doing paperwork at all if possible, and managed to achieve this goal in most cases. He did this by disposing of grievances at the first step—and in his own unique fashion.

Let’s say you the company docked you an hour’s pay because you didn’t clock out for lunch. And let’s also say that the actual circumstances were that your supervisor told you to pick up some parts at a vendor’s shop, which prevented you from clocking out. Definitely a legitimate subject and issue for a grievance by the employee. Pete would have heard your complaint, scribbled a few doodles on the first-step form and then told you, “I’ll look into this.” ‘Looking into this’ consisted of having a very brief chat, usually by phone, with the supervisor of the affected area, and then informing the grievant that the matter had reached the end of its course.

Pete knew that the only obligation he had was to pursue the matter to the end of the first step. And so that’s exactly what he would do. If the company didn’t give in at that point—and they almost never did—he would just fold his hand and leave the table.

The reason he usually quit then and there was because he wasn’t prepared to go further. Part of the reason for this was that Pete had avoided attending the union’s grievance preparation meetings, which all stewards were encouraged to attend. The classes went step-by-step through the process, but they were held on a Sunday morning before the monthly general meeting, and Pete declined to rouse himself that early. These classes were offered by the union, which would bring its labor counsel down to show how the process was supposed to work. I sat in on some of those sessions and the lawyer did a good job of explaining the steps and procedures.

But it was only after I’d had a good deal of experience in other fields before I found my own way to go about the grievance process.

Working as a probation officer, I discovered that the entire system was geared toward getting probationers off the books—either by releasing them at the first moment after they’d satisfied the requirements of the court, or by sending them to jail for refusal to comply. In either case the court required considerable documentation.

Working as an investigator for the Department of Labor, I discovered the same system in place: every activity was structured on the assumption that the whole matter might go before a federal judge, even though the proportion of cases that actually did so was small. In sum, the investigator put together evidence for a prosecution from the start; if the violator gave in early and paid the back wages, so much the better.

Both experiences got me to thinking about grievance handling. The nature of the process is that it follows the path of progressive discipline which is common to both union and nonunion workplaces; in either case the design intends to provide due process rights to all concerned, as well as a method for correction of behavior to avoid further difficulty.

The customary grievance process calls for an increasing amount of information and documentation as the matter proceeds from initial contact through the first and subsequent steps. As the distance from the underlying events increases, the requirements of form and content also increase. The difficulty with this situation is best understood in the humorous advice given by doctors to those seeking to live long lives: Choose your parents carefully.
Consider this in light of the perfunctory documentation of grievances which from their outset appear to merit no more effort than an initial conference. Occasionally such grievances will contain the seed of a larger issue, or undiscovered facts will later emerge to enlarge the scope and significance of the matter.

A sample situation:

A union construction work complains that his tools have been stolen from a job site. The tools, valued at several thousand dollars, were in a locked steel case that was removed by thieves.
The union business agent files a grievance based on the testimony of the member. The grievance states, “Worker wants company to reimburse $3,000 for loss of equipment and storage box per Section 3(a)1 of agreement.”

The grievance goes to step one, which consists of a meeting between the firm and the union agent. The company representative simply refuses to pay for the tools. The second step of the procedure is reached, and the grievance is submitted per the rules of the agreement. The company replies with a simple refusal, and the file goes back to the union side.

At this point the union must decide to take the matter to arbitration or accept defeat. The union’s grievance committee at this point decides to go forward.

The arbitrator hears the parties and renders a decision in favor of management, reasoning as follows:

1. The union’s case essentially rested upon a provision of the contract which had not been in effect since expiring with the previous contract.

2. In place of the cited provision the parties had agreed to rely upon the language of the comprehensive national agreement which provided for reimbursement in cases of theft or other loss of tools or equipment upon the filing of a claim with the firm through the associated contractor association.

3. The worker in question had been offered compensation pending reimbursement but had turned down the offer, preferring to pursue the grievance.

In essence, the union had filed for arbitration of an issue based on a dead provision, while ignoring the possibility of filing a claim under the national agreement.

There are a number of problems with this grievance, but all of them could have been avoided if the union side had worked the grievance from the far end rather than the near.

The union had the obligation to cite the agreement correctly; management did not have the burden of correcting their misapprehension. They did so in their arbitration testimony, taking advantage of previous research as well as the understanding that the union side would not at that point be able to alter its original filing to encompass more appropriate contract provisions. In fact, the management side’s arbitration testimony was loaded with minutes from bargaining sessions in which the parties had agreed to replace the old loss compensation language with the national agreement’s provision.

Had the union foreseen the refusal of management to concede in the early stages, it might have done the research necessary to compose a successful case. The labor side threw a weak first step grievance at their opponent, and sat on their hands waiting for a result. They didn’t plan further ahead than the second step. The union grievance committee worked to rubber-stamp the original paperwork without additional effort or research when this could have made a difference. Consider the result from the standpoint of the grievant, the least informed of all parties and the one with the most to lose. Next, think of this outcome as it affects the reputation of the union among all members. Not a pretty scene.

In grievances as in war, many battles are lost though poor preparation, though their details, viewed in hindsight, suggest an imbalance of forces. If every grievance were planned and prepared as though the business agent expected the matter to be examined by an arbitrator, the union side would win more often than it does. Perhaps the best product of careful planning is the decision not to pursue a grievance. Certainly the example above is one such case. The grievance process is like a gun: once fired it is impossible to recall the bullet and difficult to predict its final landing place.

Michael McGrorty