GTA Union - Grievance Procedure

Transcription

1 GTA Union - Grievance Procedure What is a Grievance? Simply put, a Grievance is a written complaint. More precisely, a grievance is a written complaint as opposed to an oral one against the actions, or lack of action, of the employer in matters relating to the member's terms and conditions of employment. For a legitimate grievance to have occurred, there must have been violation of the member's rights on the job. It is your responsibility, as the Representative, to make the decision as to which rights have been violated and to determine whether or not a grievance exists. Grievances grow out of problems, dissatisfaction, complaints and hopes of the membership. By their nature they involve the worker in day-to-day unionism. While no one likes grievances, they are an opportunity to involve people in the union and to show in a real, visual manner the strength of the union to address wrong doing and solve problems in the workplace. Since the grievance occurs at work, the Representative should be the first person to take action on it. You are the union representative at the worksite and your attitude towards grievances will be reflected by your fellow workers. The collective agreement exists to protect workers, but it can only do so if it is used. If you are not the Representative for your department, your first step should be to contact your Representative. If you do not know who your Representative is, then contact your Union executive directly. If the Collective Agreement has been violated, or a member has been mistreated, then you have a grievance. Types of Grievances There are three basic types of Grievances: 1. Individual Grievances If a situation occurs which affects an individual member, such as discipline, unfair treatment by the employer, etc., then that member may file an Individual Grievance and be represented by the Union. 2. Group Grievances If a group of employees are all affected by a decision of the employer in the same way and the impact and corrective actions are the same for all of them, then you may file what is known as a Group Grievance. 3. Union Policy Grievances When the employer establishes a policy or takes an action which violates a provision of the Collective Agreement then the Union may file a Union Policy Grievance.

2 To be sure about the application of each of these types of grievances, you should consult the particular wording contained in your Collective Agreement under your Grievance Article. Every Collective Agreement defines what type of grievances are at your disposal and each Agreement can be different. Grievance Procedures Every Collective Agreement contains a section on the Grievance Procedure. Read it and study it. Grievances can be lost by not following the correct procedures or by not observing the time limitations. Under most Labour Jurisdictions in Canada, the procedure with respect to grievances is developed by the Union and Employer through the bargaining process. The only requirement in law is that the employer and the union find some peaceful means to resolve disputes that arise during the life of a Collective Agreement. From this requirement has arisen the Grievance Procedures and third party Arbitration. Grievance Procedures in Collective Agreements provide for one or more internal steps in order to resolve a grievance, prior to submitting the issue to third party Arbitration. Underlying this procedure is the belief that those closest to the dispute, both on behalf of the union and management, should first try to reach a settlement. If they are unsuccessful, then the representatives with more authority from both sides are brought in as the grievance progresses through the steps ending in Arbitration. There are advantages to settling the grievance at the lowest step possible. As the representative, settling a grievance at the first stage will add to your reputation and authority with your members and management. For the Union, settling a grievance at an early stage will leave more time for the Local and the PSAC to work on other major issues. The higher up you go in the grievance procedure the harder it will be to settle the grievance because each side will have more to lose. Writing the Grievance You are now ready to write the grievance. Refer to the Collective Agreement. The Union may have negotiated the use of special forms. However, if a form is not in use or is not available, a written grievance presented by letter is equally valid. In writing the grievance, special attention should be paid to the statement of the Details of the Grievance and the Corrective Action Requested. Details of the Grievance This statement should be short and to the point. Reference to the Collective Agreement should be general so as not to restrict the arbitrator/arbitration board to the application or interpretation of a single clause or section of the agreement. Since many clauses and sections are inter-related, failure to remain general can cause the case to be lost. An example is: I grieve the employer's decision to deny me sick leave for February 16, 200_. I grieve violation of Article 18 of the Collective Agreement and any other related articles. Do not use the grievance form to argue the case. That is the purpose of the Grievance Hearing. Use the "KISS" principle. That's "KEEP IT SIMPLE STEWARD!"

3 Corrective Action Requested This portion of the grievance must state precisely what the grievor wants done to correct the situation which gave rise to the grievance. Make sure to include any and all redresses which are required to return the grievor to whole. If you don't request a specific corrective action here, an Arbitrator cannot grant it later. For example in the case above: I request that I be granted the sick leave requested for February 16, 200_, that the employer reimburse me for any and all lost pay and benefits, and that any and all prejudicial records regarding this matter be removed from any and all files and destroyed. Whenever the grievor wishes to be represented by the Union, the Representative will sign the grievance. This would apply to matters that arise outside of the Collective Agreement, such as discipline. With respect to a grievance which relates to the interpretation or application of the collective agreement, the union representative must sign the grievance in order for it to proceed. This is because the Collective Agreement is an Agreement between the Employer and the Union on behalf of all the members. In some Collective Agreements, any violation of the Collective Agreement are automatically Union Policy Grievances. Once the form is completed, the grievance is transmitted to the individual or position named by the Employer in the Collective Agreement. This is normally the immediate supervisor of the grievor, but could also be some other Employer designated person. Normally the Collective Agreement provides for the Union Representative to receive a signed and dated copy of the grievance at the time of presentation. If not specifically provided for in the Collective Agreement, ensure that you get a copy anyway before you leave this individual. If the Employer representative refuses to accept a grievance, then you can send it to him by registered mail, and the date that the mail is signed for becomes the date of receipt. This date becomes the date on which the grievance was received, and is the date from which the time limits in the Collective Agreement commence. It is also important to note that Collective Agreements also establish the time limit for the filing of the grievance. Read your agreement carefully. It is the representative's responsibility to forward a copy of the grievance to the local, along with all the facts and arguments recorded on the matter. To be aware that a grievance has been presented, the Local needs to be provided with all relevent information as they are constitutionally responsible for grievances. Further to that, they may be required to represent the grievance at subsequent levels, if the grievance is not resolved at the first level. The employer's reply to the grievance will be in writing and sent to both the grievor and the Union representative for that level. It is the representative's responsibility to forward a copy of the employer's written response to the Local. As the representative, you should always keep the grievor informed about the status of their grievance. Transmittal of the Grievance Where the employer's decision or settlement is not satisfactory to the grievor and within the prescribed time limits as indicated in the collective agreement, you will transmit the grievance to the next level in the grievance process. Always indicate the name and address of the union representative responsible for representing the grievor at subsequent levels. The grievance shall be transmitted either on a designated form, or in letter format to the employer's representative as outlined in the Collective agreement. Again be very mindful of the time limits for transmittal, as most agreements deem a grievance to be null and void if not transmitted within the

4 time limits provided. Arbitration Arbitration is the final stage of the grievance procedure and is a hearing before an impartial third party. This third party may be a single arbitrator as agreed to by the Union and the Employer or named in the Collective Agreement or it may be a Tribunal consisting of one Union nominee, one Employer nominee and an impartial Chair agreed to by the Union and Employer nominees. This third party hears the case then writes a decision which is binding on the parties. This decision can only be challenged if the third party makes an error in law or a capricious decision, in which case their decision may be reviewed by the courts. The third party only has authority to interpret the agreement as written. They are not allowed to amend, alter add to or take away any provisions contained within the agreement. The Arbitrator/Arbitration Board is also restricted to dealing with the grievances as presented. For this reason, the Union requires only a general statement of the grievance on grievance forms so they are not restricted to a single clause or section of the agreement. The decision is given as a written decision. In the case of an Arbitration Board, the decision is written by the Chair and the Union and Employer Nominees can agree with that decision or write dissenting opinions, however only the Chair's decision applies to the case. Investigation of a Complaint or Grievance As a representative, it is your job to listen to the alleged grievance, decide on its merits and investigate it in order to prepare your case. Not all problems brought to you can be dealt with under the Grievance procedure. There may be no basis for the complaint, it may be a complaint against another worker, a matter that should be dealt with through the Union-Management Committee or even a problem best solved by referring the member to an appropriate community agency or counsellor. Whatever the problem however, it is your job to listen, investigate and decide on the appropriate steps to take to resolve that problem. Getting the Facts When you are approached with an alleged grievance or complaint, you should write down all of the pertinent information immediately. You need to collect and record all the relevent facts related to a complaint or a grievance, clearly, completely and accurately. The information you are collecting is invaluable in resolving the complaint. When conducting your interview with the member who has a grievance or complaint: Listen carefully to the members statement Write down the information and points to be made Ask questions for clarification or additional information Distinguish between facts and opinion Determine which facts are relevent to the matter under discussion Note management and union records you will want to check Note people you will want to interview Check and recheck the Collective Agreement Determine what additional documentation and information is available. Facts Win Grievances

5 Gather all the facts necessary. Facts are your ammunition. The 7 "W's" Who - Who is involved? The member's full name, address and phone numbers for contact. Their work location and the name and title of their immediate supervisor. The name and phone numbers of anyone else involved. The names and phone numbers of any witnesses. What - What happened that caused the violation? Withholding of leave? Safety problem? Disciplinary problem? Unfair treatment? Harassment? When - When did the act or omission which led to the grievance or complaint occur? Include times and dates, and if applicable, how often and how long? Where - Where did it occur? Give exact locations, department, worksite? Give distances between locations if it has a bearing on the grievance? Why - Why is this considered to be a grievance? Has there been a violation of the Collective Agreement, a law, employer policy, personal rights, past practices, etc? This "W" directs your attention to that something which has been violated. Want - This relates to adjustments that are necessary to correct the injustice. That is, to place the aggrieved member in the same position in which they would have been had the act or omission not occurred. Ask for redress in full - money back, files cleared, etc. Whoa! - Review your case. Have I checked all the facts with the member? Other sources of information to check: Fellow workers Witnesses Supervisor - it is usually best to speak to the supervisor about a problem before you actually complain or grieve the case. Get the supervisor's views so you will have a better idea of the

6 Employer's reasoning. You will have a clearer picture of the facts after hearing them from both the member and the supervisor. This is neither the time nor place to argue your case. You are getting some more facts Other union representatives - they can supply ideas about similar grievances in the past PSAC staff Member's personal file - if it is a discipline or work performance case. Remember to get the member's permission, in writing, to review the file Union records The Collective Agreement Local grievance files for precedent cases Any other relevent documents Finally, prepare answers to all the arguments likely to be raised by the Employer and agree with the grievor on the redress required. When you have checked all the facts and are ready to prepare the grievance you may wish to discuss the complaint informally with the supervisors and give them the chance to solve the problem without the need for needless paperwork. Some Collective Agreements require you to proceed to an Informal Step prior to filing a grievance, others merely encourage it. Always discourage the grievor from discussing their problem with the supervisor unless you are present. This will prevent any potential intimidation which could lead to the grievor wishing to drop/abandon the grievance. If you cannot resolve the problem as a complaint, it must be presented in writing as a grievance. The Grievance Hearing Basic Points to Remember In Preparing Your Case 1. In preparing your case, remember - if you don't have the facts to back your case, you don't have a case. 2. Make sure that every statement of fact raised by the Employer is checked thoroughly before you attempt to answer it. 3. When a contradiction in a statement of facts exists, try to obtain witnesses from other members if you are sure in your own mind that your facts are correct. 4. Get all the facts into the case at the earliest possible step in the grievance procedure. Do not attempt to withhold pertinent information until the final step. It is important to try to settle the grievance as close to the source and as soon as possible. Some arbitrator's have refused new evidence if it was available and not used at lower levels in the grievance procedure. 5. Support your facts and contentions, if possible, by contract language, previous arbitration awards and past practice. 6. Recheck your case to make sure the 7 W's have all been answered. Remember some Arbitrators have rejected new evidence at Arbitration hearings. 7. Recheck the collective agreement carefully. 8. Before approaching the Employer's representative at the first level, determine the extent of their authority. Even if there is only limited authority, discussing the matter at that level may bolster their ego and defuse any resentment which may create future difficulties. 9. If you can't reach a settlement with the first level, then proceed to the next, but tell first level you are doing so and keep the member informed about what you and the Union are doing. 10. Keep complete written records of information and actions. This will provide valuable resource materials in the Local for future cases and will be necessary if the grievance proceeds to

7 higher levels. Basic Points to Remember In Presenting Your Case 1. When you and the Employer's representative meet to discuss a complaint or grievance, you are of equal status. You are the Union Representative and not an employee!!! 2. In presenting the case to the Employer, never say "I contend", "It is my position", etc., say rather "It is the Union's position", or "The position or contention of the Union...", etc. 3. A good chronology to follow in presenting your case is to: o State the facts. Raise no contentions, simply tell the story of what happened. o Answer all the contentions raised by the Employer to date, whether they are verbal or written. o You are now on the offense and can advance your supporting position raising the proper contentions relative to the collective agreement, previous arbitrations, past practices, etc. 4. Anticipate the Employer's objections. Try to figure out ahead of time how management will answer your complaint and be prepared to give the right answers to any objections. Management may have information about the grievance that you don't have, no matter how carefully you collected the facts. Ask calmly, just why this grievance happened. Then listen to the answer. Even when you don't agree with their point of view, it is good psychology to let them talk and get it off their chest. 5. Let the Employer's representative talk. Be a good listener. Many representatives talk themselves out of a case by not knowing when to listen and when to talk. It is up to the Employer to prove that their action or lack of action was right. Don't be afraid to ask "Why?". Demand to be heard without interruption when it is your turn to carry the ball. Give them the facts. If they disagree, don't retreat. Agree on all the facts and then explain carefully the exact issue or issues on which you disagree. 6. Stick to the point. Management may try to sidetrack you by leading the discussion off into another issue. It is best to let them talk themselves out, but don't be misled. When they have finished, bring them back to the facts of the grievance at hand and when you talk, stick to the issue 7. Don't lose your temper. Few people can think straight when they are angry. It is okay for the other side to get angry, but you stay cool. 8. Don't bluff. It won't help your image or the Union's because you might not be able to carry it off. 9. Don't discuss personalities. Stay away from discussing personalities as much as possible. Avoid using general arguments and belittling remarks which have nothing to do with the grievance at hand. 10. Know when to stop arguing/talking. Once management agrees with you don't continue to hash it over. 11. Don't gloat and brag about your victories, but that doesn't mean that you can't inform the members that we won the grievance. Whatever the outcome, be sure to advise the grievor of the results as soon as possible. The Representative and the Grievor You will attend the complaint/grievance hearing as the Union representative. The grievor may attend the hearing as well. By taking grievor's with you, they are able to check the supervisor's story as the case is presented and testify on their own behalf where necessary. They will also gain confidence in you and in the Union. When both the representative and the grievor attend the hearing, it shows a unified front.

8 When you are accompanied by the grievor, explain how you will handle the case and answer any questions the grievor may have before the hearing. This will avoid any disagreements during the presentation of the case. Don't make promises as to the settlement of the grievance. Be sure to inform the grievor not to talk during the hearing unless it is to give evidence. Don't allow any attempts by the Employer's representative to talk directly to the grievor or shut you out of the hearing. Emphasize that you are that representative and spokesperson at this hearing. On some occasions, it will be necessary for you to present the case by yourself. If you present the case alone, then report back to the grievor as soon as possible, tell the grievor of the actions taken and the outcome. Be prepared to answer any questions the grievor may have. It is never a good idea for grievors to process their own grievances or represent themselves. There is an old adage about this; Any person who represents themselves has a FOOL for a Lawyer!!! The grievor is emotionally involved in the situation and may not be objective. Remember, the Collective Agreement is not the property of any one member, it is the property of all the members of the Bargaining Unit. Hence, any grievance should be handled by a representative of the union. A grievance processed by an individual may result in a settlement which could hurt the rights of all the members in the future. By law, the Union must represent all members in the Bargaining Unit; failure to do so could result in charges being laid against the union. Thus, it is doubly important for the union representative to be involved in the resolution of grievances. This information was taken from Art Curtis' training material on Grievance Handling (PSAC).