Introduction to the union grievance process and a model for all employers
Introduction to the grievance policy
A grievance policy is a process in which employees may bring complaints and have their issues resolved without escalating to the need for litigation. A policy may be formal with strict procedures, or informal with an understood process relying on past practices. Although it is wise for all employers to have a grievance policy, they are mostly found within the union environment. In most bargaining unit agreements grievance procedures are the primary source of relief for union employees. Any and all complaints must be brought following the designated grievance procedures. If a grievance policy is created subject to a bargaining agreement then, with minimal exceptions, it is governed by the Nation Labor Relations Act. 29 U.S.C.A. §§ 151-169 (NLRA) Section 8 of the NLRA deals specifically with unfair labor practices. An employers failure to recognize and take steps to fairly deal with an employee’s grievance is a violation of the National Labor Relations Act and can result in significant penalties to the employer. The National Labor Relations Board (NLRB) enforces the NLRA. The NLRB protects the rights of unionized employees and union forming activities. The National Labor Relations board exists to protect the right of employees to unionize.
Grievance procedures are one of the most common types of alternative dispute resolution. Non-union employers have also recognized the value of grievance policies and have wisely instituted similar policies. However, due to the large amount of regulation and bargained for contracts union employees usually have the most liberal grievance policies. Creating or bargaining for a grievance policy is only the first step. A thorough and fair grievance policy must be a product of both employer and employee in order to be a respected and effective tool.
The Effective Grievance
Procedure
The grievance process can be anything the employer wants to create, however the process must be manageable to be effective. Each side must be given the opportunity to accurately present their complaint. It is important to design a grievance policy that will be fair and equitable to all parties. A good grievance policy will prevent unnecessary litigation. All grievance procedures must be clearly defined in lay terms and understood by all employees. Sample Grievance Policy Generally if a policy is too complicated to be understood by the bargaining unit members the doctrine of contra-proferentum will apply and it will be construed against the party with the superior bargaining power, the employer. This can lead to additional legal problems for the employer.
The grievance process starts with defining what is a grievance and who may bring a grievance claim. An aggrieved employee should be allowed to have a representative of their choice present during any stage of the process. This removes the defensiveness and reduces the hostility of the proceedings. In a union environment the contract may require the presence of a union representative. At the very least it should be an option available to the employee.
The process usually begins with an informal meeting between the aggrieved party and lower level management. The employee as the aggrieved party must first bring the claim in writing to their direct supervisor. There should be specific time limits for each step. The employee must be given time frames to bring a complaint or pursue an appeal. In return the employer must also be held to strict response times. Typically a policy will allow an employee to bring a written grievance within thirty days of the event giving rise to the grievance. Any attempt to bring a grievance beyond the thirty-day window will be dismissed and any further action will be barred.
If after the first step of the process the matter is not resolved the aggrieved party may then continue up the chain of command. The next step would be to involve the Director of Human Resources or someone of a similar position. All decisions must be issued in writing and should be appealed approximately within 5 days of the decision.
The final step before arbitration would involve a meeting with the highest level of management, a president, or vice president depending on the environment. Any decision at this level would also be issued in writing and allow for further action if the appeal is filed timely. The next step for the aggrieved would be to request an arbitration session.
Most grievance policies allow for an independent arbitrator to hear the grievance and render a final decision. The arbitrator should be mutually selected from a list provided by the American Arbitration Association. (AAA) After an arbitrator is agreed upon the parties would commence arbitration proceedings. Arbitration, although similar to a trial, is less formal and still an effective tool to resolve disputes without costly litigation. The parties can agree to binding or non-binding arbitration. A collective bargaining agreement may however only permit one or the other. Typically the fees and expenses of the arbitrator are shared equally by both parties. The expense of witnesses however is usually the burden of the party requiring the witness testimony.
American Arbitration
Association Rules for Mediation of Union Grievances
The American Arbitration Association (AAA) has specific ethical guidelines for appointing an arbitrator and for handling union grievances. Rules for Mediation of Union Grievances. The AAA encourages resolution through non-binding mediation prior to binding arbitration. Mediation is initiated through written request containing the nature of the dispute, the names, addresses and telephone numbers of all parties and their representatives in the mediation. The moving party is required to simultaneously file two copies of the request and pay any administrative fees at the time of filing. Copies must be sent to all other involved parties. The AAA requires an administrative fee of $75 to appoint a mediator and $100 per party if a list is requested. The parties may at their option choose a different allocation of fees.
The AAA will appoint a mediator, or the parties may request a list of approved mediators to choose from. The AAA will provide the parties with a list of seven mediators upon request. Each party will preemptively eliminate two mediators from the list and return the list to the AAA. If a mediator can not be selected from the list the AAA will appoint an independent mediator subject to the AAA ethical standards. Subject to AAA rules any party may be represented by counsel or other designated representative. To expedite the processes the mediator shall choose the date, time and place of the mediation session, providing notice at least twenty-four hours prior to the session.
The mediator does not have the authority to bind either party to an agreement but will attempt to have the parties reach an agreement voluntarily. The mediator is authorized to meet with the parties separately to facilitate a settlement. The mediation sessions are conducted in private and only the parties and their representatives may attend. Any other persons who wish to attend may do so only with the permission of all parties. All activities, statements and documents divulged during the course of a mediation session shall remain confidential and will not be disclosed by the mediator or any other party. Neither party may use the information obtained during the session in any arbitral, judicial, or other proceeding. If an issue is not able to be resolved prior to trial no testimony disclosed during the mediation or arbitration may be used as evidence in court.
American Arbitration Association Rules for Labor Arbitration
If a union grievance cannot be resolved by voluntary mediation the next step is arbitration. The AAA has established rules for arbitrating labor disputes and union grievances. American Arbitration Association Labor Arbitration Rules These rules are often subject to state specific regulations.
Labor Arbitration
Rules
Amended and Effective May 1, 2004
TRADITIONAL LABOR ARBITRATION RULES
7. Initiation under an Arbitration Clause in a Collective Bargaining Agreement
8. Answer
9. Initiation under a Submission
10. Fixing of Locale
11. Qualifications of Arbitrator
13. Direct Appointment by Parties
14. Appointment of Neutral Arbitrator by Party-Appointed Arbitrators
16. Notice to Arbitrator of Appointment
17. Disclosure and Challenge Procedure
18. Vacancies
19. Date, Time, and Place of Hearing
20. Representation
21. Stenographic Record and Interpreters
23. Postponements
24. Oaths
27. Arbitration in the Absence of a Party or Representative
28. Evidence
29. Evidence by Affidavit and Filing of Documents
30. Inspection
34. Waiver of Rules
37. Time of Award
38. Form of Award
40. Delivery of Award to Parties
41. Release of Documents for Judicial Proceedings
42. Judicial Proceedings and Exclusion of Liability
44. Expenses
45. Communication with Arbitrator
46. Interpretation and Application of Rules
ADMINSTRATIVE FEES
Full Service Administrative Fee
Due to the increasing concern over the length and escalating costs associated with this type of arbitration the AAA has created an expedited set of rules for labor disputes. The American Arbitration Association Expedited Labor Arbitration Rules eliminates much of the processes that slow down the arbitration. Under the Expedited Labor Arbitration Rules there is no stenographic record, no post hearing briefs, and the arbitration is to be completed in one day absent unusual circumstances. An award is announced within seven (7) days of close of the proceedings under these streamlined rules.
EXPEDITED
LABOR ARBITRATION PROCEDURES
E2. Appointment of Neutral Arbitrator
E3. Qualifications of Neutral Arbitrator
E4.
Vacancies
E5. Date, Time, and Place Hearing
E7. Proceedings
E9. Time of Award
E10. Form of Award
Initiation of Expedited Labor Arbitration Rules
The expedited proceedings are initiated by filing with the AAA three (3) copies of a Demand for Arbitration along with the arbitration provision of the collective bargaining agreement. The Demand for Arbitration must contain the nature of the dispute and the remedy sought.
Agreement of the Parties
Both parties must agree to arbitrate under the expedited labor arbitration rules, giving the arbitrator discretion to apply non-conflicting Traditional Labor Arbitration Rules.
Appointment of a Neutral Arbitrator
The AAA shall appoint a single arbitrator from a panel of labor arbitrators who shall hear the case. Both parties will accept this appointment as final.
Qualifications of a Neutral Arbitrator
The arbitrator shall disclose any personal connection to the case or parties prior to arbitration, or any circumstance that would result in any personal or financial interest in the result of the arbitration. If there is any conflict with the appointed neutral arbitrator the AAA shall replace the arbitrator or communicate the conflict to the parties.
Vacancies
AAA is authorized to substitute an arbitrator in the event a vacancy occurs or an arbitrator is unable to serve in a timely manner.
Date, Time and Place of Proceedings
The arbitrator shall fix the date, time and place of the arbitration providing notice of at least twenty-four (24) hours to all parties. Notices may be given orally or by facsimile.
Stenographic Record
Under the Expedited Rules there is no stenographic record of the proceedings.
Proceedings
The arbitration hearing shall be conducted in the most expeditiously manner that will permit the presentation of all the evidence and arguments of the parties. Normally a hearing shall be concluded in one day. In the event of unusual circumstances the arbitrator may schedule an additional hear to be held within seven (7) days of the first hearing.
Posthearing Briefs
Under the Expedited Rules posthearing briefs are not permitted.
Time and Form of Award
An arbitrator shall render an award in writing and signed by the arbitrator no more than seven (7) days from the date of closing of the hearing. If the arbitrator determines the need for an opinion it shall be issued in summary form.
Administrative Fees
The initial administrative fee for each party due at the time of filing is $100. There is no refund of the administrative fee if the arbitration demand is withdrawn or the grievance settled. The arbitrator’s fee will be determined by the arbitrator’s individual biographical profile and will be paid for equally by the parties. Hearing rooms are available and rental fees vary by AAA offices. Both parties are subject to postponement fees of $150 per incident.
The Expedited Labor Arbitration Rules allow the parties to realize significant cost savings. In exchange for giving up certain procedures of the traditional labor arbitration rules, such as transcripts, briefs, and lengthy opinions the parties can get quick and efficient decisions.
American Arbitration
Association Labor and Employment Forms
Labor Arbitration Rules Demand for Arbitration
Employment Arbitration Rules Demand for Arbitration
California Demand for Arbitration Form for Employment Related Disputes
National Labor Relations Board
In the event a grievance cannot be resolved with mediation or arbitration the aggrieved may file a petition with The National Labor Relations Board (NLRB). The NLRB is the federal agency that administers the National Labor Relations Act. It is comprised of two sections; the board members and a General Counsel both of which are chosen by presidential appointment. The current five Members who are serving a five-year term are Robert J. Battista (Chairman), Dennis P. Walsh, Wilma B. Liebman, Peter C. Schaumber, and Ronald E. Meisburg. Arthur F. Rosenfeld is currently serving a four-year term as General Counsel.
The NLRB has two primary purposes to protect the right of employees to unionize through the democratic process of secret-ballot elections; and (2) to prevent and remedy violations of The National Labor Relations Act, (called unfair labor practices), by either employers or unions.
The National Labor Relations Board is not the exclusive remedies for all employment violations and grievances. The NLRB does not have jurisdiction over employees in the agricultural, airline, and railroad industries. Additionally it does not pertain to federal, state and local government employees. Grievance charges involving discrimination, sexual or workplace harassment (non-union activities) pension issues, or wage laws are outside the scope of the National Labor Relations Board. There are several other government agencies to handle these types of charges.
Initiation of an Unfair Labor Practice Charge Against an Employer
Filing a Charge
After an employee has exhausted their contractual remedies they may bring s charge against an employer for unfair labor practices with the NLRB. Once the NLRB has determined that employee is within their jurisdiction then it will investigate the claim.
Statute of Limitations
Absent extenuating circumstances charges need to be filed and served within six months of the event or conduct giving rise to the complaint. The National Labor Relations Board typically will not hear charges beyond the statute of limitations.
Types of Charges
Standard types of charges against employers and unions include threatening to discharge for protected union activities, failure to bargain in good faith, and unfair labor practices specifically relating to grievance procedures.
Charging Party’s Responsibilities
The charging party must provide upon request, the name, address, and telephone number of the employer or union against which the charge is being filed. Full cooperation is expected and failure to present any evidence in a timely manner may result in the dismissal of your charge.
What to Expect When a Charge is Filed
After the charging party has fully cooperated and presented all evidence of the complaint an Information Officer is assigned to investigate the charge. The Information Officer will solicit legal arguments from each side in response to the charges. The Information Officer may assign a fair but discretionary time limit for these arguments to be submitted. Generally after an investigation is completed a decision can be rendered within 7 to 12 weeks. All cases will be evaluated for a temporary court injunction to eliminate the alleged unfair practice until a decision is rendered. Statistically approximately 65 % of unfair labor practices charges are either dismissed or voluntarily withdrawn for lack of merit. If a charge is dismissed for lack of merit a dismissal letter will be issued within 7-12 weeks.
National Labor Relations Board Cases
The National Labor Relations Act (NLRA) governs unionized employers and prevents unfair labor practices. The NLRA applies to employers engaged in commerce, defined in section 152 of the Act. 29 U.S.C.A. § 152 (1935) A union that is organized subject to a collective bargaining agreement falls under the jurisdiction of the act. Even though The National Labor Relations Act is a law that was created in the early part of the 20th century it is still evolving with our changing society. In 1974 the 93rd Congress amended the National Labor Relations Act to included employees of nonprofit hospitals, nursing homes, health clinics, or other institutions devoted to the care of the sick, infirm or aged person. Act to Amend The National Labor Relations Act Pub. L. No. 93-360, 88 Stat. (1974)
Unfair labor practices under the National Labor Relations act include the failure to participate in, or obstruct the grievance process. 29 U.S.C.A. § 159 (1935) It is unfair labor practices for an employer or a union to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in the National Labor Relations Act.
In Shelbyville
Mixing Center, Inc. V Local Union No. 89, International
Brotherhood of Teamsters 339 NLRB No.11 (2003) the National Labor Relations
Board in a three-member panel ruled an employer violated the NLRA and had
committed unfair labor practices by failing to respond to a grievance. The
employer also attempted to eliminate the grievance policy without the consent of
the union. The employer,
Shelbyville Mixing Center inc. failed to respond or acknowledge filed union
grievances citing the elimination of the grievance policy. The employer refused to participate in
mediation or arbitration, bringing rise to this case. The NLRB ordered
The National Labor Relations Board has ruled that not even a pending
bankruptcy can relive an employer’s obligation of fair dealings regarding union
grievances. In Standard
Brands Paint Co. v. United Food
and Commercial Workers
The National Labor Relations Board also regulates activities between the union and it’s individual bargaining members. In National Postal Mail Handlers Union Local 329 v. Myron L. Bass 319 NLRB No. 108 (1995) the union representative refused to file and process grievances filed within the provisions of the collective bargaining agreement. Myron Bass an employee of the National Postal Mail Handlers Union Local 329 presented the union representative with a grievance to be filed and processed. Bass was restrained from exercising his right to file a grievance under the agreement for reasons unrelated to his work. The union was forced to recognize Bass’s complaint and institute arbitration proceedings. Pursuant to this decision Bass was permitted individual counsel at the grievance hearing. The union was ultimately responsible for Bass’s attorney’s fee as additional punishment for violating the National Labor relations Act.
Forms for filing a
claim with the National Labor Relations Board
NLRB Form 501- Charge Against an Employer
NLRB Form 508- Charge Against Labor Organization
NLRB Form 509- Charge Alleging Violation(s) Under Section 8 (c) of the NLRA
NLRB Form 601- Withdrawal Request
NLRB Form 4551 – Request to Proceed
NLRB Form 4701- Notice of Appearance
NLRB Form 4702- Annual Notice for Receipt of Charges,
Petitions, and Case Depositions
NLRB Form 4767- Notice of Appeal
NLRB Form 5081- Questionnaire on Commerce Information