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Grievance Handling and Arbitration:

What you Need to Do and

Need to Know

Joan G. Hill

United Steelworkers International Union

Education and Membership Development Department

Pittsburgh, Pennsylvania

Public Sector

Workers Conference

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Class Environment

� Have you served as a union advocate in an arbitration hearing?

� If not, have you observed an arbitration hearing?

� What types of arbitrations? Contract vs. Disc/Disch

� What do you expect from the class?

� How does the union enforce the Contract?

� Through the grievance/arbitration procedure

� Through the court system

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The Federal Court

System

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The Collective Bargaining

Agreement

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Jobs of the Steward

1. Organize and recruit new members

2. Maintain a constructive relationship between the local and the management at the agency or installation

3. Serve as the front-line representative of the local

4. Protect conditions of employment as well as the dignity and

security of the AFGE membership

5. Act and talk trade unionism

6. Attend meetings and motivate others to attend

7. Educate other members about their rights under the contract

8. Police and enforce the agreement through grievance handling.

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What Does a Steward Need

To Know?�Know Your Contract. The contract is the agreement which sets the terms and conditions

upon which labor and management agree to cooperate for a designated period of time. It is

the set of rules which governs the behavior both of the worker on the job and the

company; and it is your job as a steward to see to it that management lives up to the terms

of the contract. A contract is subject to interpretation, and you interpret the contract to the

best interests of the people you represent. Knowing how the contract language has been

interpreted by past grievance settlements and arbitration decisions is important.

�Get familiar with your contract. Your familiarity will come from reading the contract,

from trying to resolve grievances, and from discussions at steward and union meetings.

Other knowledge will come from talking over the articles and sections with the union

committee which negotiated the contract.

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Know Your Co-Workers. As a steward, maintaining

frequent personal contact with each worker in your

group is important. Make it a habit to talk one-on-

one or in small groups about the job, the workplace,

and the union. In addition, it’s important to know

what is going on in the work place, and the union.

In addition, it’s important to know what is going on

in the work units and keep in touch with the issues.

Build an up-to-date list of names, addresses and

phone numbers.

Know Your Union. It is important to know what the

union wants and what it intends to do to get what it

wants. You must know the processes in your local

and be aware that important issues to the

membership change over time depending on current

conditions in the facility and the economy.

Know Your Department and the Jobs. Most of the

grievances you are asked to adjust will have their

source in the department or area you serve. Thus,

you will want to be well acquainted with that

department. The greater your knowledge about the

workings of the department, the less chance you

have of being misled into a compromise settlement

of the grievance.

Know the Supervisors. Observe how the supervisor

acts when discharging duties, how he or she reacts to

grievances of one kind or another. Be particularly

careful to form your own judgments about a supervisor

instead of accepting another’s opinions.

Know the Employer Policies and Employer Personnel

Manual. Valuable information about agency policies

and other criteria will be found in these materials.

Know Important Labor Laws. Becoming familiar with

important laws that affect you and the membership

will help you protect your members, build the union,

and perhaps settle a problem or grievance.

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Grievances and Adverse Actions

1. IDENTIFY

2. INVESTIGATE

3. DOCUMENT

4. PREPARE

5. PRESENT

� AND YOU CAN WIN

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Complaint or Grievance

� Is there a violation of the CBA?

� Is there a violation of Law?

� Does it involve an area in which management

can be held responsible?

� Is there a violation of agency regulations

� Is there a violation of past practice?

� Has the employee been treated unfairly?

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Investigation

� Investigate the facts

� Check motives for conduct

� Check for progressive discipline

� Check the facts

• proof of guilt

• Evidence

• Length of service

• Past record

• Reasonableness of discipline

� Sources of information:

• The grievant

• Co-workers

• Witnesses to the incident

• Other union stewards and officers

• supervisors

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What records do you need?

� Agency records:

retention records

production records

absentee records

medical records

regulations

� Union records:

CBA

past grievance files - precedents

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What is an Investigatory

Interview?Employees have Weingarten Rights only during investigatory interviews. An investigatory interview occurs when a

supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an

employee to defend his or her conduct.

If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she

says, the employee has the right to request union representation.

For example, the steward can:

a. help a fearful or inarticulate employee explain what happened

b. raise extenuating factors

c. advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and

guilt

d. help prevent an employee from making fatal admissions

e. serve as a witness to prevent supervisors from giving a false account of conversation

NOTE: Stewards have no right to tell workers not to answer questions or to give false answers. Workers may be disciplined if they refuse to answer questions.

It is important to educate union members about their Weingarten Rights. The employer is under no obligation to inform workers of their right to union representation during an investigatory

interview – the member must make a clear request for a steward.

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The Duty of Fair Representation

� DUTY OF FAIR REPRESENTATION. § 7114(a)(1): "An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership."

� See NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986), where the court held that the union's duty of fair representation is limited to matters as to which the union is the exclusive representative.

� Also see 28 FLRA No. 118, where FLRA said the following: "Where the union is acting as the exclusive representative of its unit members, we will continue to require that its activities be undertaken without discrimination and without regard to union membership under section 7114(a)(1). We will not, however, extend those statutory obligations to situations where the union is not acting as the exclusive representative . . . ." See 49 FLRA No. 71 for an example of a violation of this duty (members-only poll regarding seniority-based benefit system administered by union) and 46 FLRA No. 81 where FLRA found no violation because the nonmember employee against whom discipline was proposed had a right to have a representative of her own

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Duty of Fair Representation

� To ensure that the union is fulfilling its obligation to fairly represent the workers, a

local union should follow some guidelines. These include:

1. When you are approached about a grievance, do a full investigation. Interview the

grievant and all witnesses. Review the contract to see if there are any potential

violations. Request all relevant information from management. Keep detailed

records of your investigation.

2. Do not refuse to file a grievance because of race, sex, religion, politics, personality,

or membership status. You must represent all members of the bargaining unit

regardless of your personal opinion of the worker involved in the grievance.

3. Treat grievants as you would want to be treated if it were your grievance. Keep

them up to date on the progress of their grievances. Don’t disregard a grievance

simply because the grievant has filed a number of frivolous grievances in the past.;

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Duty of Fair Representation (

cont.)

4. If you decide to drop a grievance, notify the worker prior to formally removing the grievance. Give the grievant a brief explanation of why the grievance is not being pursued, and give the grievant a specified time to provide additional relevant information. Keep records of conversations and written material used to notify the grievant that his or her case is being dropped.

5. Prepare thoroughly for all arbitrations. Simply taking a case to arbitration is not a defense against a DFR charge if the union does not prepare for the arbitration.

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Racial and Sexual

DiscriminationRacial or sexual discrimination cases require union action. A union can be found guilty of a

DFR violation if it fails to file grievances or take other steps to stop discrimination or

harassment on the job. Workers can file civil rights complaints against the union if the union

fails to enforce non-discrimination clauses in the contract, or if union officials are involved in

harassment in their union role (not as co-workers).

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WHAT happened? What was the sequence of events? What was

said?

WHO is involved? Get complete information on the grievant,

witnesses, and management?

WHEN did it occur? Include time and date?

WHERE did it occur? Location should be identified if possible or if

important.

WHY is this a grievance? Or why can it be a grievance? The clause in

the contract, the violated law, or the harm done to the member should

be spelled out so you can ask for the remedy.

WHAT REMEDY for settlement? What is needed to place the

aggrieved worker in the

same position he/she would have been in had the injustice not

occurred?

The Grievance Procedure

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Checklist for Discipline

GrievancesThe key question you must consider and investigate when handling a discipline case is “Did management have ‘just cause’ for imposing the discipline?”

� Was the employee adequately warned of the consequences of his or her conduct? The warning may be given orally or in writing. Were the employees given copies of any workplace rules or asked to sign something saying they saw copies?

� Is the employee being punished for conduct which has been allowed in the past? Management can’t suddenly begin to crack down without first warning employees.

� Was the employer’s rule or order reasonably related to efficient and safe operations?

� Did management investigate before administering discipline? Due process? Who did they talk to? Or did they just act?

� Was the investigation fair and objective?

� Did the investigation produce substantial evidence or proof of guilt?

� Was there equal treatment? Were the rules, orders, or penalties applied even-handedly and without discrimination?

� Was progressive discipline used? Was a verbal or written warning given for the offense?

� Was the discipline imposed too harsh? Was the discipline reasonably related to the seriousness of the offense?

� What does the employee’s past record look like? How many years of service does the employee have? Any past disciplinary action? If yes, when and for what?

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1) Don’t go into too much detail – use only enough information to identify the grievance.

2) In general, limit your statement to the essentials of what happened – omitting personal

judgments. If you are required to cite specific provisions in the contract that were allegedly violated, it is good practice to include a statement such as “ and any other provisions of the contract that may apply.”

3) In stating the “why” grounds for the grievance, don’t limit the union position to a single section of the contract. It would be better to say, “The supervisor’s action in this case violates the spirit of

the collective bargaining relationship, including section 8 of the agreement.”

4) Cover yourself when stating specifics, especially in cases where technicalities have been used in

the past to deny grievances. For example, don’t say “on March 8, March 10, and April 7, the grievant was bypassed in selecting workers for overtime.” Instead, say “On or about March 8, etc.”

5) Grievants have been sold short by poorly phrased remedies. In stating your demand – the requested remedy – don’t ask for anything less than full compensation for the grievant. Better still, use a phrase such as “made whole.”

6) Don’t get personal. Remember, you are stating a union position. “The union demands that the company cease and desist the above practice” (not “I demand..”).

7) Thoroughly discuss the grievance with the grievant. Explain what you are doing. Explain the requested settlement and get the grievant’s full understanding and agreement. Have the grievant

sign the grievance.

8) Don’t automatically assume that you have to file a grievance at all. Explore the possibility of getting a satisfactory settlement through informal negotiation. Once a grievance is filed, lines may harden.

Tips for Preparing to Present the Grievance

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Effective Use of Apology

� Acknowledge that you have done something wrong – the

(moral) norm has been violated.

� (this means you agree on the facts of what happened)

� Accept responsibility for the offending act – regret or

remorse

� It must be specific

� Acknowledge impact and damage (to the victim)

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� Arbitrators reduce or reverse in 15% if early

insincere or 13% if late insincere;

� Arbitrators reverse or reduce rate for all cases

where an apology is given -34% if early sincere,

31% if late sincere

� In discharge cases, the early sincere apology

affects the reduce/reverse rate by 40% and late

sincere by 35%.

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Factors Affecting Outcome

Can the grievant be rehabilitated?

Grievant’s years of service!

Selection of the Arbitrator – their age, gender and

education

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The Role of the Arbitrator

� Once chosen—facilitate scheduling the hearing

� Conduct a fair hearing

� Build a sufficient record

� Fair process

� Sufficient to make the “Right Decision”

� Make the “Right Decision” on the case issue based on the record in a timely fashion

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Who are these arbitrators?� Typical recent FMCS panel of 7

� Education

� JD 4 LLM 1

� MA in IR 1

� BS in ILR from Cornell 1

� 2000 National Academy of Arbitrators Survey

� 90% over 50 with an average of 25 years arbitrating

� Education: 97% have a graduate degree

� Master’s Degree 13%

� Law 62%

� Doctorate 22%

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Arbitrators are problem solvers

� State the problem

� Study the facts associated with the problem

� Use logic of the discipline to answer the

problem statement

� Write it up

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How to Win Cases

� State the problem for the arbitrator in such a way you have a better chance of winning

� Present all of the facts that support your side

� Give the arbitrator his logic of the case

� In other words, think like an arbitrator

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The Decision-Making Process

FACTSA fact is something that is not in dispute, such as an employee’s date of hire, age, position on the seniority list, and so forth. To establish the facts, both parties should keep accurate records that can be produced at grievance or arbitration hearings.

ALLEGATIONSAn assumption is a concept assumed to be true without proof. A large number of disagreements which result in grievances are based upon assumptions. Our assumptions are often based on our culture.

OPINIONSOpinions are conclusions arrived at by persons who have the technical or professional ability to evaluate a situation. For an opinion to be valid, the person expressing it must have expertise in the subject matter and sufficient facts on which to base the conclusion.

PERSONALITYEach human being has many characteristics which collectively determine personality. The nature of personality often determines decisions. Two individuals presented with the same set of facts will often come to different conclusions because they have different personalities.

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Elements of Critical Thinking

� Differentiating between Fact and Opinion� Recognizing and Evaluating Bias

� Determining Cause and Effect

� Determining Accuracy and Completeness� Recognizing Fallacies and Faulty Reasoning� Comparing and Contrasting Information and Points of View

� Developing Inferential Skills

� Making Judgments� Drawing Logical Conclusions

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State the Problem for the Arbitrator� The Issue Statement

� A yes or no answerable question with, “If not, what

shall the remedy be?”

� Arbitrator can not exceed authority given in the issue statement

� State it to your advantage

� Be the source of the issue statement

� Stipulate before or at the hearing

� Agree on it before the end of the hearing

� DO NOT let the arbitrator phrase it after the record closes

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Present All of the Facts� Arbitrator’s answer must be drawn from the record—cannot make up the facts

� You make the record.

� Facts are evidence.

� Argument is opinion not fact.

� Whose opinion counts?

� Win cases by putting on your case, not by shooting holes in the case of the other side.

� You win when your factually supported opinion and the arbitrator’s are the same.

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Present the Right Problem

Solving Logic

� Can the arbitrator decide any way he/she wants?

� What logic does the arbitrator use?

� Rules of Evidence to find the facts

� Common law of the workplace

�This provides the “received logic” on the issue

� The arbitrator develops a “Theory of the Case”

� Applies the problem-solving logic of that type of

case

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Arbitrator’s LogicGiven type of case, decision-making logic is not mechanistic but highly predictable. Theories of the case are in:

� Elkouri and Elkouri, How Arbitration Works

� Other BNA publications on Arbitration

� The Common Law of the Workplace: the Views of Arbitrators

� Discipline and Discharge in Arbitration

� Seven Tests of Just Cause

� Management Rights in Arbitration

� Evidence in Arbitration

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Do you have evidence?

Evidence is proof presented with the intent to convince the fact finder (arbitrator/judge/jury) of the truth of certain alleged facts.

Types of Evidence:

oral testimony observations

documents expert opinions

objects public records

photographs sworn testimony

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Do the Rules of Evidence Apply?

Debate among arbitrators to strictly apply or “take it for what it worth”

But the rules are easy to apply, for example

1. Relevant evidence defined (401)

2. Relevant evidence is admissible (402)

3. Relevant evidence can be excluded (403)

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Do other rules apply?

� Character and Habit (404)

� Settlement/Negotiations (408)

� Requirement of Personal Knowledge (602)

� Credibility of Witnesses (607)

� Cross-examination (611)

� Opinion and expert testimony (701/702)

� Hearsay defined and excluded (801/802)

� Exceptions to Hearsay (803)

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Evidence versus Hearsay

Hearsay is any evidence that is offered by a witness who does not have direct knowledge of the particular fact, event, statement or other matter,

but their testimony is based upon what some other person has told the witness.

Generally speaking, hearsay evidence is not

allowed to prove the truth of the matter.

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Overcoming the Hearsay Objection

Arbitrators will generally accept hearsay evidence, understanding its nature, and consider it as hearsay, but give it less weight or credibility.

Utilize the exceptions to the hearsay rule.

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Exceptions to Hearsay

Rule 803

� Declaration against interest – only if the declarant is unavailable.

� Admission – a statement made by a party or agent of the party (employee) that was against the party’s interest

� Present sense impressions – a statement made that describes an event and made at the time the event happened.

� Excited utterance – a spontaneous statement or exclamation, made under impulse – connected to a startling event and not made upon reflection.

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� Past recollection recorded – useful when attempting to introduce notes of a grievance meeting or encounters

with management. These notes must be prepared contemporaneously to the event.

� Business record– time cards, check stubs, accident

reports, prepared in the regular course of business, and not in anticipation of arbitration or other litigation.

� Reports of doctors or health care providers which relate

to an observed symptom or gathered in an effort to diagnose the patient or statements made for purpose of

medical diagnosis

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Use of Presumptions

Does the accused have an incentive to lie?

Does the supervisor have anything to gain from lying?

Employee has possession of stolen property.

Company rule: Published?

Employees trained?

Employee knows the rule.

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Use of Experts

Step One -- Qualifying the witness as an expert

(See Handout)

Step Two – Ask the expert to give an opinion

Examples:

� Handwriting experts

� Medical

� Safety/Health

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Using Documents or

Physical EvidenceHow to offer evidence: you have to lay a foundation and

move admission of evidence1. Business Records2. Photographs3. Diagrams

Basic steps:1. The witness is familiar with the evidence2. The witness can authenticate the evidence

3. The document is what it is4. The document/evidence is relevant to your case.

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Credibility of Witnesses

� Experience leads arbitrators to identify that a grievant’s testimony may in some

circumstances be presumed not to be credible, particularly when contradicted by a

witness who has nothing at stake in the arbitration.

� An accused employee is presumed to have an incentive for not telling the truth and

that when his/her testimony is contradicted by one who has nothing to gain or lose,

the latter is to be believed.

� An employee charged with misconduct leading to severe discipline or discharge has an

interest in avoiding the responsibility and blame and there is a recognized tendency on

the part of such individual to misstate facts and circumstances.

� Arbitrators and triers of fact always keep in consideration the fact that a witness may

be motivated to testify falsely by some self-interest. One of the most reliable factors to

be considered by an arbitrator in resolving a credibility issue is the existence or

nonexistence of bias, interest, or other motive that would influence a witness’

testimony.

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