MASPA HR: WE’VE GOT A PROBLEM MANAGING A GRIEVANCE TO ARBITRATION CLARK HILL PLC Barbara A Ruga...

MASPAHR: WE’VE GOT A

PROBLEM

MANAGING A GRIEVANCE TO ARBITRATIONCLARK HILL PLCBarbara A Ruga616-608-1105

[email protected] 2, 2010

Clark Hill PLC Copyright 20102

Discussion

• Importance of Grievance Handling

• General Guidelines

• Types of Grievances

• Step by Step Considerations Based on Type of Grievance

• Preparing for Arbitration


Grievance Handling

• Part of effective contract administration.• Can be used by union to re-negotiate contract during

its term.• Essential to train supervisors and building

administration in following concepts:— Know and understand your labor contract(s).— Read frequently.— Follow contract.— While reserved management rights doctrine means district

may do what contract does not restrict, no administrator may modify the contract on an individual basis or without negotiating with union.

— As District management, you are legally deemed to be agents of employer: your actions bind the board of education.


Grievances Are Part of Collective Bargaining

• Establish a centralized person or office for interpretation and enforcement and assistance in grievance handling.

• Maintain a log of grievances filed, by bargaining unit, and outcome.—In ideal world, departments would maintain

discipline history.

• Grievance history assists when evaluating what proposals need to make during next contract negotiations

• Be selective in what you take to arbitration and at same time don’t hesitate to go to arbitration when you have effectively evaluated your case.


Important Records• Bargaining History.

—Proposals, counterproposals, TAs.—Minutes of bargaining sessions.

• Grievances.—The grievance chain and related documents.—Arbitration awards.

• Letters of Agreement.• Anecdotal experiences throughout life of

contract.• Informal and formal correspondence with

union including notes of conversations regarding contract interpretation.


Understand Role of Union

• Exclusive bargaining representative –—Recognition clause and new positions.

• Right to be present during investigatory interview or when contract so requires.

• Advocate for bargaining unit members and interests of association as a whole.

• Monitor and enforce contract.• File and process grievances.• Assert, enforce and create rights of

members.


What is NOT on the prior list?

• It is NOT union’s responsibility to assist the District.• It is NOT union’s responsibility to see

your side of the situation or properly explain it to its member(s).• Hopefully, there will be mutual candor

and professionalism, even when there is disagreement.• Fine line: respectful working

relationship versus sharing the board’s rights.


Relationship Between Labor Contracts and Other Sources of Rules or

Obligations

• Individual contracts.• Board policies – try to avoid or eliminate right to

grieve board policies.• External Laws.

— School Code. Examples: 1098 instructional hours, common county calendar,

FMLA. Start Date of School. FLSA.

• Constitution; Binding case law or administrative interpretations.

• What arbitrators think about external law.


Handling Grievances To Arbitration


The Basics• Read the grievance procedure.

— Definition of grievance. Make sure the alleged violation is within the definition of grievance in the particular contract.

• Know the timelines in the grievance procedure.— If the grievance was not timely filed, or if there is some other

procedural defect (i.e., not signed, not filed by the right person, contract section not cited), state your objection to the grievance based on this defect in your initial response. Otherwise, the defect is waived.

— Still must process the grievance even if untimely or procedurally defective

• Follow the process and the timelines exactly as stated in the contract and document same.

• If there are verbal agreements to waive or extend timelines, document same in writing by email or other documentation.

• Avoid lax or sloppy practices as it makes it difficult later to reinstate/enforce the timelines and procedures.

• Use negotiated grievance form, adding attachments if needed.


General Guidelines

• Use the grievance procedure to fully understand the grievance.— Ask the grievant to cite every provision in the contract on

which he/she relies.— Ask grievant to identify every fact or event that supports

claim that contract violated.— Ask grievant to identify every witness who would support

the claim and what that witness is expected to say.— Ask grievant to explain exactly how the contract was

violated, when, by whom, etc.— Keep asking about the above until the grievant says

“that’s it.”— Take careful notes of what grievant or advocate says

during each meeting. — Do not waive these meetings as a normal course of

conduct as you deprive yourself of opportunity to learn about the grievance and be prepared for arbitration.


Two Types

• Contract Interpretation.—Burden of proof on grievant/union.

Preponderance of evidence standard.

• Discipline/Discharge.—Burden of proof on employer to show just

cause. Preponderance of evidence in most cases.

Can be clear and convincing evidence in some depending on alleged misconduct and arbitrator.


Importance of Contract Interpretation Grievances

• Erosion of management rights over time leads to reduced control over educational process and thus over educational outcomes.

• Important to analyze contract interpretation grievances.

• Tend to get short shrift.


Contract Interpretation• Start with Management Rights Article. • Generally speaking, Contract Limits Employer’s

Rights Which are Otherwise Unrestricted; if contract does not prohibit, normally can exercise discretion.

• Goal is to minimize restrictions on management rights; Regain via negotiation if unacceptable restrictions exist – not losing an arbitration.

• Avoid creating more restrictions beyond those already within the contract through the grievance procedure.

• Settling grievances can expand contractual restrictions.


Contract Interpretation

• Ask whether contract language at issue is ambiguous in grievant’s mind, and if so, in what way.• May use dictionary to determine

common and ordinary meaning of words and phrases.• Ask - How does grievant believe

contract should be interpreted and why?


More On Contract Interpretation

• If ambiguity exists or is alleged to exist:

—Ask for Proposals and counterproposals.

Prior contracts.

Prior interpretations.

Prior grievances.

Prior statements.


Standards of Contract Interpretation

• If clear and unambiguous, don’t look outside contract to interpret it.

• If ambiguous, may consider external evidence like bargaining history or intent.

• Only if language is ambiguous will “past practice” be potentially relevant.

• Even if have ignored literal language in the past, if clear and unambiguous, may follow it in the present .


More Standards for Interpreting Contract

• Follow normal or technical definition of words and phrases, context may be necessary to aid understanding.• The more specific language controls

over the general statement.• Later amendments carry more weight

if language appears to conflict.• Construed against the drafter.• Custom and past practice may be

considered if language ambiguous.


Additional Standards of Contract Construction

• Give effect to all of the words used (therefore, avoid redundancy).

• Avoid harsh or absurd results.• Unlawful interpretations will be avoided or

not enforced. May be declared void.• To express one thing, excludes another,

unless worded to the contrary – “not limited to” or “such as”.

• When all else fails, the grievant/union has to prove it’s correct!


Past Practice• Most misunderstood by management

and thus capitalized on by unions with which you deal.

• Just because it has been done this way in the past does not mean there is a binding past practice.

• Must be evidence of mutual intent to have a binding past practice.

• Never accept at face value, union rep’s assertion of a binding past practice.

• Complex analysis.


Multiple Definitions of “Past Practice”

• An unequivocal and consistent response mutually accepted and clearly enunciated over a significant period of time.

Eight Point Test.1. Does Practice concern a major condition of employment?2. Was the practice established unilaterally?3. Was the practice administered unilaterally?4. Did either party seek to include the practice within the CBA at some point and not succeed in doing so?5. What is the frequency of the repetition of the practice? 6. Is the practice long standing?

7. Is the practice specified in detail?

8. Do the employees rely on the practice?


Contract Interpretation

• Contract is a binding document. A two way street.• Cannot unilaterally change it because you don’t

agree with what it requires.• Must negotiate changes through the regular

bargaining process or through a letter of agreement in an individual case. Need to have HR or superintendent involved, not something an individual supervisor should ever do, or even explore, without first checking with HR or the superintendent.

• Cannot ask an employee to ignore the contract or in any way penalize an employee who insists that the contract as written be followed.

• At same time, the Union does not make management decisions for employer.

• Another important subject for supervisor and principal training.


Disciplinary GrievancesReview the 7 parts of the just cause standard – ask

questions to elicit which part of test not met.1. Did employer give employee fair warning of likely

disciplinary consequences of employee’s conduct?

— Work rules.

— Expectations.

— Board policies.

— Staff meetings.

— Training.

— Memos.

2. Was rule reasonably related to employer’s business needs and the performance the employer might reasonably expect?


More Just Cause Standards

3. Before discipline administered, did employer make an effort to discover whether employee did in fact violate the rule?

4. Basic Due Process.

Notice of charges. Explanation of evidence. Opportunity to respond. Union present.

5. Was employer’s preliminary investigation – before discipline administered – conducted fairly and objectively?

— Who conducted it.— Was it reasonably thorough and fair to employee.— Did employer keep open mind.

6. Was discipline proportionate to offense and employee’s work record?

7. Was discipline consistent and uniform for similar offenses?


Burden of Proof Considerations

• Employer bears burden of proving just cause by a preponderance of evidence or clear and convincing evidence, in some cases.

• Is there reasonably sufficient proof to meet one of those standards that employee did what is charged?


Using the Grievance Procedure

• Review facts & investigation.

• Elicit defenses: Evaluate defenses.

• Explore specifics of disparate treatment claims and other defenses; fix if wrong decision made, or if new facts brought forward during grievance process that warrant a change in position.

• Document if grievant or union fails or refuses to respond.


Common Questions

• Are there any witnesses who support your grievance? If so, who?• Are there any documents that support

your grievance? If so, get copies.• Is there anything else that supports

your grievance that you have not identified?• Is there anything else you want to say

in support of your grievance?


Grievance Replies• Two approaches.

—Deny without much rationale.

—Deny with rationale.

• Grant if contract violated.—Consider non-precedent setting letters of agreement

carefully drafted.

—Grant in part/Deny in part.

• Look at contract language – does it require parties to disclose all evidence, arguments, witnesses etc before arbitration?


Preparing for Arbitration

• Selecting Arbitrator.

• Time to Prepare.

• Ensure witnesses available and have time to prepare.

• Fix it if wrong or if new information or risk analysis emerges.


Last Chance Agreements

• Disciplinary grievances.— Absenteeism, Substance Abuse.

• Clearly written with unambiguous provisions on consequences of repeat conduct that constitutes “prohibited conduct”.

• The broader the better, the more conduct prohibited the better.

• Duration clauses.— The longer the better.

• Tenure waiver?• Ability to negotiate depends upon employer’s

leverage given the facts and circumstances.• Consult HR/legal counsel.• Caution against using borrowed forms!


Common Problems

• Expanding role of union representative during evaluation procedures.• Providing access to union

representative in violation of FERPA.• Settling grievances with letters of

agreement that are unclear.• Agreeing to solve a problem in a

limited context that has major ramifications later.• Cost of arbitration versus ease of LOA.


Practice Tips

• Make sure you have copy of CURRENT contracts for all union groups you manage/supervise.

• Make sure contracts are complete – letters of agreement, appendices, etc.

• Consult them if question.

• Ask for guidance if needed.

• Follow contract but don’t read into contract more than is really there.


NOTES & QUESTIONS


Thank You

Barbara A. [email protected]

(616) 608-1105


DISCLAIMER NOTICE

• This presentation discusses general concepts and strategies and is not a substitute for specific legal advice in a particular situation.

• Please consult with legal counsel about the application of these general concepts to a specific situation.

MASPA HR: WE’VE GOT A PROBLEM MANAGING A GRIEVANCE TO ARBITRATION CLARK HILL PLC Barbara A Ruga...

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