Grievances The Basics. By Judy von Kalinowski, MA

Transcription

1 Grievances The Basics By Judy von Kalinowski, MA There are many aspects of the grievance process. This paper will address areas a Human Resources Professional should understand if assigned to hear a grievance as part of the agency s internal review: What is a grievance? What can be grieved? Steps in the grievance process; Your role as a hearing officer; What to consider when making your determination; Your grievance response; Changes to the MOU; The final step of the process before litigation. What is a Grievance? A grievance is a formal complaint that can be initiated by one or more represented employees concerning an alleged breach of the terms and conditions of the labor agreement, or an overall dissatisfaction relating to the interpretation, application, administration, and/or practice of a provision of the agreement (article) that the grievant(s) believes has resulted in inconsistent and unfair treatment of an employee or group of employees. Employees have the right to representation when filing a grievance. The scope of the right to representation includes matters relating to wages, hours of employment, and other terms and conditions of employment. 1 An employee s right to representation also includes the right to representation in the presentation of the grievance. 2 When an employee files a grievance, this cannot be used as a basis for discipline against the employee. Employees have the right to file grievances without jeopardizing their position. Most organizations have language in their grievance procedures addressing this right. For example, the Memorandum Of Understanding (MOU) between the City of San Diego and San Diego Police Officers Association states: Employees have the right to use this grievance procedure without fear of reprisal. No negative employment action will be taken against any employee as a result of the use of this grievance procedure. 3 1 California Public Sector Labor Relations, Labor & Employment Law Section, California State Bar, Sec [2] Employee Organization Rights, Scope of Right to Represent 2 Id. 3 Article 24, I.A, Grievance Procedures 1

2 What Can be Grieved? Virtually any matter concerning the specific terms and conditions of a Memorandum of Understanding (MOU) can be grieved if it is clearly defined in the MOU. As Bill Kay 4 stated during a presentation of the Labor Relations Academy II (The Arbitration Process), when you receive a grievance, ask yourself: Is this dispute or disagreement grievable? If so, define the scope of the grievance to keep within the parameters as established in the MOU and avoid drifting into areas that do not relate to the grievance. Furthermore, if an MOU includes provisions covered in the Civil Service Rules or Personnel Regulations, such disputes are often resolved before the Civil Service Commission (or comparable authority). With every grievance, take care to stay within the boundaries of your jurisdiction. You might also encounter a situation where even though the subject of a dispute is in the MOU, another entity interprets or administers the subject area and you lack authority to resolve it. Under such circumstance you cannot properly determine the matter on its merits. An example of a response to this situation is provided below (See, Your Grievance Response, Example 2). Examples of matters disputed in a grievance: A denial of agency work clothes while on an unrelated assignment; Failure to compensate for an out-of-class assignment while performing a higher level of duties; Placement on a seniority list while on approved leave; Rejection of special assignment pay for performing an unauthorized assignment; Reimbursement of uniform allowance involving a dispute over purchase criteria; Change in work restructure or reassignment due to staffing reductions; Work schedule changes without proper notice. Although this short list cites matters involved in grievances, virtually any subject matter included in an MOU can be grieved. Refer to the grievance procedure in the applicable MOU to determine how to proceed. Steps in the Grievance Process Grievance procedures are normally defined in collective bargaining agreements. Although similar, other organizations procedures may vary. The initial steps of the grievance process allow the Union and/or member to engage in meaningful communication, usually with the immediate supervisor and department management, to resolve the dispute. If the grievance is not resolved at the early steps, the grievant may need to resort to other remedies such as appealing to the organization s Labor Relations/Employee Relations Office, arbitration, or other legal remedies that may become necessary for a final resolution. 4 William F. Kay, Kay & Stevens Law Firm, developer of the CALPELRA Labor Relations Academy II 2

3 Strict timelines are specified in grievance procedures for Management s response at each step. It is critical that a response be given at each grievance step within the required time frame to preserve the organization s ability to settle the matter. Failure to respond on time risks jeopardizing the outcome of the dispute at that level as the grievant then has the right to advance to the next step, or in some cases, may result in a favorable outcome for the grievant. Contrarily, if an employee fails to appeal to the next step within the required timeline, the grievance is usually considered settled and no further action can be taken by the employee. However, the parties can extend the timelines for good cause such as the need for additional investigation, approved or emergency leave, unexpected workload demands, or other reasons as agreed to in writing by all parties. The purpose of timelines is to insure that grievances are resolved in a timely manner at the lowest level. The Sample Grievance Procedure set forth in Calpelra s Labor Relations Academy II 5, begins with three internal departmental steps before proceeding to a step outside of the department. The third step proceeds to the Personnel/Employee Relations Director or City Manager Office. If unresolved at this level, the grievance can be resolved by arbitration or in the case of the City of San Diego, by the City Council. Review your grievance procedure and ask yourself, Are there sufficient or too many steps in our process? What is the right number of steps for us? Consider re-revaluating the number of grievance steps if your organization experiences: Unnecessary delays; Lack of a thorough response at the first step; Regurgitation of the same information; Failure to have an independent review of the grievance. The grievance process begins with an attempt to resolve a problem in an informal meeting between the immediate supervisor and the employee. The process then becomes increasingly more extensive and formal as the grievance progresses. Every attempt should be made to resolve the grievance at the lowest possible step, and, you should consult with your Labor Relations Office and/or your organization s employment attorneys at this level. From my own experience, labor relations staff and employment attorneys are often aware of the issues relating to a grievance, and may be able to assist with developing a resolution that will satisfy all parties until problems with a contract provision can be addressed in the next contract negotiations. However if the grievance is submitted to the Labor Relations Office for a hearing, the person hearing it should be disinterested in the matter being grieved to avoid the appearance of bias. The Role of an Internal Hearing Officer Michael T. Kolb in Effective Grievance Processing 6 lists the following when preparing for the grievance hearing: 5 Labor Relations Academy II, The Arbitration Process, Section CALPELRA Conference 3

4 Which management representatives should attend? Set the appropriate tone Allow for venting & be a good listener Narrow the issues Clarify the union s theory and arguments Stay focused and on point Test possible resolution options Should any steps be skipped? I have found it helpful to avoid contentious hearings with unnecessary arguments by beginning with a clear identification of the issue being grieved, and the role of each person in attendance, thus establishing control in a relaxed, firm manner. Inform the attendees that you will serve as the adjudicator at this level and that you will prepare an independent review of the grievance. To do so, listen to and pay close heed to the positions of both parties. Also announce that you may ask questions during the hearing and that you may conduct your own independent research. The difference between a good and great response is that a great response contains a complete understanding of the matter and leaves no room for either party to question the basis for your determination. Before the grievance hearing, conduct your own research so you have clear understanding of the grievance and to assist in asking appropriate questions. It is your duty as the hearing officer to prepare a written response that is thorough, timely and based on the facts provided during the grievance hearing and by your own research. What to Consider When Making your Determination Like any investigation, you must reach further than what you simply heard in the hearing to determine an appropriate outcome. Whether or not you utilize all of the information available to you; you need to, at a minimum, recognize and acknowledge peripheral information such as: Witnesses; Past Practices; Historical Documents; Rules, Regulations, and Policies; Internal Communications; External Communications; Side Letters; Employment Laws; The intent and spirit behind the meaning of the MOU language. 4

5 Your Grievance Response Regardless of only one issue or numerous ones involved in a grievance, keep your response simple, clear and concise. Rely on the facts and source documents to assist in fully articulating the rationale behind the use of each source document or reference. Avoid opinions, editorials, and beliefs. These distract from the issue at hand, and give an appearance of unfairness and bias. Your response should demonstrate that you understood the facts and that your research was complete, enabling you to prepare a response that was fair, unbiased, and objective. By doing this, you clarify the matter for the grieving employee and reduce the risk of the dispute escalating to the next level or becoming an issue in litigation. At times, a grievance is difficult to respond to because of a lack of documentation for you to rely on. A grievance can arise because of a change from a consistent practice or application of a provision. Employees may not be aware of an initial change in the practice due to a lack of communication. Although past practices can be ceased by the employer, the employer must give reasonable notice to the employee of the change, usually thirty days. This circumstance brings past practice into the equation and will need to be considered. A sample grievance response that was based on an alleged misinterpretation of an MOU and a perceived past practice of paying overtime or call-back pay, for training is provided (Example 1): In response to the grievant s belief that the Director issued Order to dismiss discussion over the contested language in Article 00 and to deny personnel an opportunity to be heard on this matter: I find that the Director did not issue Order to dismiss any discussion regarding Article 00 as the article speaks clearly to its purpose. It is my conclusion the grievant is not entitled to call-back or overtime pay for the training. As to overtime pay, the training was made available in the workplace and could be taken during the regularly scheduled work shift. Therefore, the Department is not required to provide overtime for the grievant as the training could be accomplished during the normal course of duty without the need for required overtime. As a result of information provided at the hearing, I understand the training was designed as computer-based training made available to be taken in the workplace or any other location that would support this type of training. Because of this, call-back pay would not apply to either Order or as the grievant was provided advanced notice of the training to allow adequate time to plan a convenient date and time to complete the training, and did not require the grievant to be called-back to the workplace. Therefore, the Department s Legal Advisor s opinion of Article 00 5

6 was correct as was stated at the August 7, 2006 meeting. Article 00 states in pertinent part, An employee who has been released from work and has left the work premises shall, if called back to duty from home and any other work location, be paid for the reasonable estimate of the time required to travel from and to his/her residence and the work areas and for the time actually worked. If the grievant had been released from work, and later notified to return to a work location for an emergency, then this would entitle the grievant to the four hour minimum for call-back pay. Although the training was created to enhance the capabilities of State and local emergency preparedness and response personnel through development of a State homeland security training program, it does not qualify as emergency call-back pay. Additionally, the Department Procedures clearly states in pertinent parts, When an officer or member from an eligible civilian classification has been released from work, has left the work premises and is called back to duty because of an emergency, the member shall receive premium compensation for the reasonable estimate of the time required to travel from and to his or her residence and the work site and for the time the member actually works. From my understanding of information provided at the hearing, I find the Director had no intention of punishing employees for grieving the training orders by requiring the training be completed during on-duty hours. Employees are only entitled to overtime or call-back pay when work assignments can not be completed during the normally assigned work schedule. Being that training could be accommodated during on-duty hours, any additional types of compensation would not apply in this case. Lastly, I find monies are not specifically dedicated for overtime compensation as a component part of grant monies associated with the training. As there was not any information provided at the hearing that would indicate otherwise, my findings are based on information provided by the Grant Program Advisor. The Grant Programs allowable training costs include, but are not limited to such costs as the development, delivery, and evaluation of training, as requested by the grievant, overtime cannot be provided because the grants do not dedicate any amount to be specifically used for overtime. Based on the information provided at the hearing and review of the training requirements, I hereby deny your grievance. 6

7 This extensive response occasioned by the type of dispute, resulted in resolution of the matter at this level. A grievance should not be viewed as something to be won or lost. Rather, both sides must view the situation as an attempt to solve a human relations problem. 7 If, after you hear a grievance, you discover you lack the required authority to respond, even though the subject is grievable, the correct response is that you lack the proper authority and jurisdiction to resolve this matter and that it should be referred to the entity with proper authority to do so. The following is a response to such a grievance (Example 2): Based on information provided at the hearing and other research, as indicated, the retirement system, by which members receive benefits, can only be established by the City Council through ordinances and therefore any amendments to incorporate XXX, or any other off-duty activity, as eligible in the Plan, must be enacted by the City Council in an ordinance. SDMC Section states that Industrial Disability Retirement benefits are payable to those who are permanently incapacitated from the performance of duty where the incapacity is the result of injury arising out of or in the course of City employment. SDCERS has taken the position that there is no authority, no ordinance, which would allow for Industrial Disability Retirement benefits to be paid for injuries occurring in the XXX program. Charter section 144 mandates that SDCERS Board of Administration shall be the sole authority and judge under such general ordinances as may be adopted by the Council as to the conditions under which persons may be admitted to benefits of any sort under the retirement system... Therefore, although the XXX Program is in the MOU, the Office of Labor Relations lacks the authority to respond to this grievance which expressly is concerned with whether or not an injury to an employee under the XXX Program is entitled Industrial Disability Retirement. Whether you uphold or deny a grievance, include all rules, regulations, policies, and laws in your decision that support your finding. Changes to the MOU If your organization finds the same MOU articles being repeatedly at issue in grievance proceedings, at the next contract negotiations, address changes to the MOU to correct this problem. Alert management of the advisability of revising the provision. Keep in mind, that even the most minor changes, such as replacing a word, can have a significant impact 7 Managing Human Resources, Chapter 14, The Dynamics of Labor Relations, pg

8 to the meaning of the language necessary to achieve clarification. Changes can be requested by either party. Before you discuss revisions to the MOU with a Union, as Bill Kay noted 8, determine the intent, meaning, and past practice behind the language. Ask yourself, What are the industry standards? What was expressed to the other party during negotiations? What was manifested by the administration of the provision? How do management, supervisors, and employees interpret the language? What about persons no longer employed by the agency? An area of caution: if another entity has jurisdiction over a program in the MOU (it interprets or administers the subject area), the entity with jurisdiction must be involved in the negotiation process when developing the associated article in the MOU. Your organization cannot negotiate items in the MOU unless they possess full and sole authority to do so. The Final Step In most agencies, the Labor Relations/Employee Relations Office is the final internal step of the grievance process, and if still unresolved, the dispute will be submitted to an arbitrator jointly selected by the parties and this arbitrator will decide the grievance. This is the last step. Although most agencies use arbitration as the final step for grievances, some organizations submit disputes to their highest discretionary authority such as the City Council. There are advantages and disadvantages to using either the City Council or arbitration as the final step prior to moving to possible litigation, and in some cases, the advantages may operate as disadvantages, depending upon one s point of view. City Council advantages and disadvantages Advantages: Minimal cost; Council should be familiar with internal functions of the organization. Disadvantages: Council may lack knowledge of employment and procedural law; Politics may influence the Council; The dispute is heard in open session; The dispute may generate unwanted media interest; PERB will hear MOU contract interpretation disputes filed by the union as an Unfair Labor Practice Charge. 8 Labor Relations Academy II, Role of Arbitration, Union-Management Relationship 8

9 Arbitration advantages and disadvantages Advantages: Resolution takes place in a private setting; The arbitrator s review of the dispute is independent and neutral; Perception of fairness; Arbitrators generally posses extensive knowledge of employment-related laws and issues; PERB will defer Unfair Labor Charges to arbitration for matters that turn on contract provisions, providing the arbitrator s decision is final. Disadvantages: The cost, sometimes significant; Arbitration generally takes longer. Unlike the process prior to arbitration where the potential for a compromise solution can be explored, the arbitrator does not have the power to negotiate a compromise unless the parties expressly give the arbitrator that authority. In grievance arbitrations, the arbitrator derives his or her authority from the contract itself. The arbitrator has no authority to amend the contract or to create rights independent of the contract. In resolving grievances over contract application or interpretation, the arbitrator is limited to deciding what the parties intended in the agreement. 9 Conclusion In conclusion, every attempt should be made to resolve a grievance during the early steps of the process. Early resolution between an employee and his/her immediate supervisor avoids loss of time and cost invested by the many individuals seeking a resolution and affects the employer-employee relationship. A common sense and fair approach in the early steps enhances respect and understanding between the parties and continues to build a more harmonious workplace. However, it is unrealistic to assume that all grievances can be resolved at an early step. In this case, the process outlined above should be followed. In some instances a satisfactory solution may not be possible at the first step because there are legitimate differences of opinion between the employee and the supervisor or because the supervisor does not have the authority to take the action required to satisfy the grievant. Personality conflicts, prejudices, emotionalism, stubbornness, or other factors may also be barriers to a satisfactory solution at the step Labor Relations Academy II, The Arbitration Process, Section I: Legal Foundation 10 Managing Human Resources, Chapter 14, The Dynamics of Labor Relations, pg

10 Although labor contracts are agreed upon by both parties, nevertheless, over a period of time, disputes arise over the interpretation of the language. This is where the grievance process can serve as a catalyst to clarify unclear and ambiguous language in the MOU and restore the true spirit and meaning of a provision. Even with the best intentions at the time MOU articles are drafted, a provision can be subject to contrary interpretations. In this case, take advantage of contract negotiations to revise problematic articles. In resolving disputes, the bottom line is that people should talk and listen to each other with mutual respect. Judy von Kalinowski, MA Labor Relations Officer 1200 Third Avenue, Suite 1316, MS 56L San Diego, CA (619) [email protected] June 2007 Rferences Kay & Stevens Law Firm, William F. Kay, 2006, Labor Relations Academy II, Role of Arbitration In Union-Management Relationship Kay & Stevens Law Firm, 2004, Labor Relations Academy II, The Arbitration Process Memorandum of Understanding, between the City of San Diego and San Diego Police Officers Associations (POA), July 2007-June 2008 Luke Leung, Michael Kolb, and Micki Callahan, 2006, Handling Grievances Effectively, CALPELRA Conference Bohlander, George, and Snell, Scott, 2004, Managing Human Resources, 13e, South- Western, United States 10