Chapter 3 – Grievance Investigation

Table of Contents

The 5 W’s, Who, What, When, Where and Why
Each of the 5 W’s covers a special part of the investigative process. Standing alone they will not help you. Their power is in what they offer as a cohesive group. The results of your investigation are as strong as the weakest link, so be sure each is done thoroughly, and to the best of your ability. It takes time, understanding and a dedication to get the last detail that makes the process work. One last point to remember, there are no short cuts to doing this job well.

WHO is involved? Here you want to make sure you identify the employee, the supervisor involved, all witnesses and anyone else that may be able to shed information on your investigation. Remember to not only get their name, what their relationship to the grievance is, but how you can contact them in the future.

WHAT YOU NEED TO DO AT THIS STEP: names and address of everyone that is involved somehow in the situation. Remember this includes the employee, the manager, and everyone who has information on the problem.

WHAT really happened? Not only do you want to get the sequence of events, but what was the background leading to the problem which led up to you being called? Is there a long history of problems here, and are they based on something that can be readily identified?

WHAT YOU NEED TO DO AT THIS STEP. This step will take some time and require you to both ask good questions and listen closely to the answers. As you begin to interview the employee, be sure to begin keeping notes on what they say. Your initial questions will be very general, but as you become more acquainted with the problem, your questions will become more precise.

WHEN did it happen? Here it is important to be very specific in identifying when it happened, including day, date, and hour. Can you give some reasons why this type of detail is important? For example, how important would it be in a case on the payment of overtime?

WHAT YOU NEED TO DO AT THIS STEP. In the course of beginning your questioning, this will be amongst the first questions asked, when did this take place? Please be sure to get precise answers, you know how important this can be. Depending upon the nature of the problem, you may wish to ask this same question of management and all witnesses.

WHERE did it take place?

WHAT YOU NEED TO DO AT THIS STEP: In most cases, this will not be an area where there is a lot of disagreement. Still, in some cases, it is one that you must get an exact answer to from all the parties.

WHY is it a grievance? Just because something is not right, unfair, or out and out wrong, does NOT automatically mean that you have a grievance. Remember; in order to support your contention you must be able to show how the activity you grieving violated the contract, the law or a past practice. Without out one of those for a foundation, your grievance will fail.

WHAT YOU NEED TO DO AT THIS STEP: This is the first time in the procedure where you will be making decisions based upon the material you have uncovered. This is the time you will be applying what you have uncovered to the contract, the law or past practice. This is also where you may wish to get some advice from your chief steward or president of the local. This is also a time to set aside your pride and in the interest of doing the best job possible ask for advice from those with more experience.

Oh, yes there is one more, and it’s an H;

HOW can the problem be resolved? This is a crucial question, but often overlooked as we rush in and try to do the best we can at investigating the grievance. Once we have shown there is a grievance, we must also identify what we see as a solution. Now, many times the solution will be self-evident. Identifying the solution to someone whose paycheck is short is much easier than taking care of the problem involving someone being denied a promotional opportunity.

WHAT YOU NEED TO DO AT THIS STEP: Once again, this is a time when you should really consider seeking the input and advice of those that have more experience. It is your job to make sure the employee is represented well, and at this stage, you must make sure that the bargaining unit is also protected.

One last suggestion. Always ask for the member “to be made whole”. This guarantees that the successful grievant will have all the effects of this violation wiped from their record.

13 POINTS ON WRITING THE GRIEVANCE

    • Know your rights, under the contract and elsewhere. Avoid letting the employer tell you how to handle and write your grievances.
    • Ask at the beginning: Is it necessary to write this grievance? In some cases, writing will make the management take the problem more seriously. In others it might lock them into a “no” attitude where the grievance could otherwise have been resolved with justice to the employee(s).
    • In writing the grievance, don’t go into much detail. Use the Five W’s in putting in only enough information to identify the grievance. Check your union’s policy on practice here.
    • Generally you want to limit your statement to the bare essentials of what happened. This means omitting personal judgements, the nature of the evidence that the union might use later on, and the full justification for the union position. In many cases this information might only be used by management to prepare a better case against the union.

Example: Better than “the grievant, Bill Brown, has been abused and discriminated against by the supervisor, and the Union has three witnesses to this treatment, in addition to work assignment records…”

would be:

“The grievant, Bill Brown, has been treated unfairly by supervision in assigning work. This treatment violates the working agreement, including but not limited to Article 7 governing rotation of work assignments.”

    • As in the above example, in stating the “Why” grounds for the grievance don’t limit the union position to a single section of the contract.

Example: Better than “the foreman’s action violates Section 12 of the contract…”

would be:

The foreman’s action in this case violates the collective bargaining agreement, including but not limited to Article 7, Section 12.”

  • Cover yourself when stating specifics, especially in cases where technicalities have been used in the past to deny grievances.

Example: Better than “On January 13 , 16 , and February 2 , the grievant was bypassed in selecting workers for overtime…”

might better have been (in a case where there was an error on one of the dates):

“On or about January 13th, etc., etc.”

    • 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 the phrase such as “made whole”.

Example: Better than “the Union requests that the grievant be reinstated”.

“The Union requests that the grievant be made whole in every way, including full back pay and reinstatement with no loss of seniority.”

8. Don’t get personal. Remember, you are hopefully stating a Union position.

Example: Better than “I demand that the foreman, Jack Joke, stop taking out his frustrations on the men in Department B…”

would be:

“The Union demands that the foreman stop the above practice.”

    • Thoroughly discuss the grievance with the grievant. Explain what you are doing. Explain the requested settlement and get his full understanding and agreement. Have him sign the grievance.
    • Don’t wait for the grievant to come to you to find out what’s happening with the grievance you wrote. Keep the grievant posted on each action.
    • If you’re new at it, consult with chief stewards, committeemen, etc. in writing the grievance. Show the final to them before submitting it. Don’t be a burden, but don’t be afraid to ask for help.
    • Learn to identify facts or arguments that should be in the written grievance, in case the grievance is heard by an arbitrator.
  • Don’t automatically assume that you are locked in to the original phrasing of the written grievance. In most cases, there are possibilities for amending the grievance at various steps in the procedure.

THE GRIEVANCE FILE

    • Maintains continuity through steward turnovers and office changes.
    • Enables stewards and leaders to locate “lost” facts.

3. Enables steward to identify past grievance patterns and settlements.

4. Useful in spotting problems to be introduced in contract negotiations.

Even where informal settlement is reached before a grievance is written, a brief notation should be made for the file. One way to establish a file is to cut up the contract and paste each section on a separate card. Grievances can then be filed under the section they relate to. Additional for grievances that don’t tie in with the contract directly.

The Grievance Hearing
Here are a few pointers that will help make the grievance hearing go well.

Remember, you are management’s equal. Under the law, you are on a par with the person you are dealing with, even if it is the president of the company, or the mayor of the city.

Ask management questions. Remember, you are there to represent the member as best you can, and you can only do that with ALL the information. By asking them questions you may also begin to expose some of their weak points.

You are there to discuss a specific grievance. Being personable, and carrying on sociable chit chat is fine, but you must remember that the real objective of the meeting is to address the issue of the grievance. Keep them on target by brining them back to the grievance.

Only discuss issues. Remember, personalities have no place in the handing of grievances, so keep it on an even keel by staying away from discussion of any personalities.

A friendly, positive approach is fine and probably the best to employ.

Listen carefully for management’s main points. This will give you the first hint if there is a possible solution.

Avoid becoming excited. Becoming angry or hostile will do nothing for your case that is positive, but may in fact put you at a disadvantage. Do you think more clearly when you are all worked up, or do you do better under less stressful conditions? Now, this is not saying that you never work up a sweat, what it does mean is that you should always be in control.

Never argue with the grievant in front of management. If a question arises and you need to speak with the grievant, or they need to speak with you, so it in private. NEVER disagree in front of management.

Don’t make threats. What purpose does it serve to make threats? Absolutely none at all. If there is something else you can do that will encourage management to go with your solution, then do it!

Disagreement is fine, but keep it at a professional level. You will in all likelihood hear arguments and positions from management that will really be bothersome. Don’t fall for one of the oldest tricks in the book! Keep your cool, and disagree in a professional manner. In the long run, this strategy will serve you very well.

Always try to resolve the grievance at the earliest step possible. Why expend you effort, time and money to achieve a solution at the second step, when that same solution was available at the informal step?

Keep accurate notes of what is said, and by whom. These will serve you well if the case goes to subsequent steps. Think how often we have heard of witnesses changing their testimony, even slightly, as a case winds through the legal system. What happens to that witness, and their testimony? They are usually set aside and ignored at best. Remember Mark Furman?

Never “horse trade” grievances. If you stay in this line of work for any length of time you will be offered to win one grievance, inevitably a difficult one that you really want to win, if you will give management another grievance that you know is a winner for the union. DON’T ever trade!! Not only should every grievance stand on its own, but you will quickly find yourself in a DFR case if you do begin to trade.

The final settlement MUST be in writing. It does no good to come to a solution, shake hands on it and then walk away without it in writing. Can you purchase a house without documentation? Can you get married without documentation. Well, why then should you settle a grievance without it in writing. Putting it in writing is the professional thing to do that will assure that all parties are protected.

WHAT DO YOU DO WHEN……
A MEMBER DOES NOT HAVE A GRIEVANCE??
OK, you’ve done your thorough investigation. checked all leads, got all the information from management’s files, and still, you don’t see a grievance. Yes, you’ve gone back to the member asking them to help understand why they feel they have a grievance, and still, you just don’t see

Is this unusual, only happening rarely? Not really, for we all have experienced things in life that are “wrong” or “shouldn’t happen,” but those circumstances don’t always have the makings of a grievance. So, what is your job now, as a steward, when you have determined that the member does NOT have a grievance?

“Strategies”

    • File a grievance anyway so as to get it “on the record.”
    • File a grievance so as to get the member off your back.

3. File a grievance, since it is the right of every member to grieve everything.

4. File a grievance, and hope that management doesn’t see that it really isn’t a grievance.

Let’s stop here and examine what each of these four strategies will do to you, the steward, the union, and the member you are charged with representing.

Strategy #1

By treating the grievance procedure as a lottery, you are diminishing the role and power of the union. As we all know, the story “The Boy Who Cried Wolf,” teaches us that we must be believable when it comes to crying out for help, or sending out a warning about an impending threat. Filing grievances to “get them on the record” puts you in this position quickly, and just as quickly diminishes you in the eyes of your membership. Why should they trust your judgment on anything when they know every complaint, good or bad, becomes a grievance?

Strategy # 2

If this selection ever crosses your mind, please, immediately reconsider being a steward. It is obviously not for you. Pressure, questions, and complaints are the lifeblood of a steward. If you can’t handle it, follow the directive of President Truman; “If you can’t stand the heat, get out of the kitchen.”

Strategy # 3

Yes, we all have the right to use the grievance process, but not abuse it. As a steward, it is your responsibility to make sure that the problem is grievable and then do a top flight, professional job representing your member. To take all complaints to the grievances process will once again dilute your integrity, raise the expectations of your members, and at the same time overload the process. An overloaded process will not serve your best interests, for then even the solid well researched grievance will be caught in the administrative undertow. Your membership will become more and more disenchanted as you produce fewer and fewer successful resolutions to grievances. Eventually, the usefulness of the organization will be so minimized on all fronts that it will be totally powerless.

Strategy #4

If you are really serious about this as a strategy, it is time for a reality check. As we head towards the end of the 20th century you really can’t seriously think that this is a strategy that has any chance of working. Desperate circumstances sometimes create the atmosphere where really desperate moves appear to be reasonable. Don’t even give this strategy a second thought for it will only defeat you and your organization in short order.

What you should do is ask the member to once again give you their rational on why it should be a grievance. If in the end it still does not hold water, you will have to inform them of that fact. Be sure to say that all complaints are not grievance, but all complaints do help form the bargaining demands of the next contract, so all is not lost. Being straightforward and truthful about the status of their complaint is the very best policy for you as a steward and the union. It not only sets the record straight, but also will raise the status of the union in the eyes of your membership as only legitimate, supportable grievances are taken through the process.

WRITING THE GRIEVANCE
EACH WRITTEN GRIEVANCE MUST

    • Clearly state the nature of the complaint.
    • Allege that the action of the employer is in violation.
    • Set out the specific relief in full.

Using Your Contract Language

    • In writing the grievance be sure to cite the contract language you feel was violated and include the phrase:

“and/or any other language in the agreement which may be applicable.”
Not only does this give you flexibility, it also is a fail-safe mechanism for you.

ADDITIONAL POINTERS

    • Be brief, keeping your written statement to the bare essentials. Background and detail will come in your arguments.
    • Clearly state what the UNION wants to settle the grievance.
    • Take the time to organize your thoughts before writing the grievance. A well written, clearly stated grievance will always have more impact.

SOME STANDARD LANGUAGE
Nature of the Grievance:

The union is grieving because the actions of management violate XXIX and/or any other clause in the collective bargaining agreement that may be applicable.

Settlement Required:

The union demands that the grievant be made whole.

KEEP A COPY OF EVERYTHING!!
1. your notes of the interview with the member;

2. your notes from interviews with witnesses;

3. your notes from interviews with management;

4. your notes and copies of personnel file data;

5. your written requests to management;

6. your letters to the member keeping them up to date;

7. your notes from any discussions involving this problem;

8. the formal grievance;

9. all responses from management;

    • and EVERYTHING else.

GRIEVANCE CHECK LIST
“GENERAL DISCIPLINE”

    • Was there sufficient PROOF or was management’s action based on hearsay?
  • Did management INVESTIGATE and VERIFY the charge BEFORE taking action or did they “shoot from the hip” first and investigate after the fact?

a. Did Grievant get “his/her day in court”?

    • Was management’s charge PREMATURE?
    • Did management selectively STACK THE DECK by over-emphasizing certain facts and points (perhaps taken out of context) while playing down those factors which would favor the Grievant so as to belatedly justify a charge?

4. Did management OVER-REACT (i.e. react drastically or emotionally rather than objectively)?

5. Was the discipline PUNITIVE and VINDICTIVE rather than CORRECTIVE and REMEDIAL?

6. Was the discipline TIMELY?

a. Did it follow the alleged commission or omission within a logical and reasonable time?

b. Did management wait until an incident occurred before suddenly clamping down?

    • Was the penalty consistent with the principle of PROGRESSIVE DISCIPLINE?
    • Was Grievant adequately INFORMED as to what level of PERFORMANCE or COMPLIANCE would be expected of him or her?

9. Did the penalty violate any applicable and relevant provisions of:

– The Agreement? (“Contract”)

– An Addendum to the Agreement?

– A supplementary Letter of Understanding?

(“Side Letter”)

– A Board Policy?

– An Administrative Directive?

– A past practice?

– An applicable and relevant Arbitration Award?

– An applicable Law?

* Or was penalty arbitrary, capricious, unjust, unfair, unreasonable, inequitable or discriminatory?

* Or did the penalty otherwise adversely affect the welfare of the Grievant, Union or the individual or collective rights of the employees in the bargaining unit?

    • Did management apply its rules, orders and penalties EVENHANDEDLY?

11. Did management punish EVERYONE for the infractions and deficiencies of a FEW?

    • Did management MAKE KNOWN to the Grievant prior to disciplining him/her what the RULE was that they charged him/her with violating?

GRIEVANCE CHECK LIST – INSUBORDINATION
(WHAT THE ARBITRATOR LOOKS FOR, AND YOU MUST PREPARE FOR)

    • Was Grievant actually given a DIRECT ORDER (or merely instructions, suggestions, or advice)?

2. Was Grievant AWARE that he was given a direct order?

3. If so, was the order CLEAR?

4. Was grievant’s alleged failure to comply INTENTIONAL?

  • Was Grievant given adequate FOREWARNING of the possible consequences of his alleged refusal to carry out the order?
    • Was the order reasonable and necessary to the SAFE, ORDERLY and EFFICIENT operation of the School, Department, College/University, District/System?

a. Did it violate:

– The Agreement? (“Contract”).

– An addendum to the Agreement?

– A supplementary letter of understanding? (“Side Letter”).

– Board Policy?

– An Administrative Directive?

– A Past Practice?

– An applicable and relevant arbitration award?

– An applicable law?

 

b. Did the order threaten to cause undue hardship or irreparable harm?

c. Did the order threaten to endanger the health or safety of the Grievant?

d. Would the order force the Grievant to violate a law?

e. Was the order arbitrary? capricious? unjust? unfair? inequitable? unreasonable?

f. Did the order otherwise adversely affect the welfare of the Grievant or the Union?

GRIEVANCE CHECKLIST – NON-DISCIPLINE
WHAT THE ARBITRATOR LOOKS FOR, THE STEWARD SHOULD PREPARE FOR, OR …… “ALMOST EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT ARBITRATION, BUT WERE AFRAID TO ASK.”

1. What CONTRACT Provision(s) is Relevant?

    • -What part of the Agreement has been violated? How? BY omission? Commission? Misapplication? Misinterpretation?
    • -Is there a more specific provision that could apply?
    • -Has an addendum to the Agreement or a side letter been violated?

Note: – A reasonable interpretation of the contract will usually prevail over an unreasonable one.

    • -When two or more contract provisions conflict or deal with the same subject, the more/most specific will prevail.
  • What REGULATION(S), BOARD POLICY(IS), or ADMINISTRATIVE DIRECTIVE(S), is (are) Relevant?

– Has any Regulation, Board Policy or Administrative Directive been violated?

      • How? by Omission? Commission? Misapplication? Misinterpretation? Supersedence over the Agreement?
  • What APPLICABLE LAW(S) IS Relevant?
  • Has any applicable law been violated? How? By Omission? Commission? Misapplication? Misinterpretation?

b. Does the violation also cause a provision of the National or Local Contract to be violated?

  • What PAST PRACTICES are Relevant? (Best when contract is not clear or silent on the

issue.)

a. Has any past practice been violated?

b. Can you prove that the practice has actually been followed for a certain period of time?

5. What PRECEDENTS are Relevant?

a. What past rulings provide guidance?

b. Are they helpful or adverse to your grievance?

c. Which party’s position is consistent with the precedent(s), Union or Management?

INVESTIGATION PROCEDURES AND PREPARATION
FOR DISCIPLINE AND DISCHARGE CASES
Credibility Tests

Discipline and discharge cases often deal with questions of credibility. The question is whom to believe. In order to make certain your case is well prepared, you should test your grievant and all other witnesses vigorously to make certain you know exactly what happened.

Witnesses sometimes “see” situations differently than what actually happened. A grievant is emotionally involved and therefore sometimes misjudges the facts. Occasionally, there are lies to cover up mistakes. In your investigation, you should take the following steps in your preparation:

    • Go over the witness’s story thoroughly. Check every aspect of it. When you do not trust its credibility, challenge it! If you do not believe the story, you should not expect the arbitrator to believe it either.
    • Any part of the story that “stretches” the rational imagination should be thoroughly checked.
    • Try to find other credible witnesses who can support the grievant’s story. Different witnesses see the same event differently. Do not be surprised at this.
    • Use questions and techniques that you anticipate in cross-examination. In other words, play the Devil’s Advocate! If you set up a more vigorous test of the witness’s story than the employer and it is passed, there is a better chance of it being believed by the arbitrator.

5. Check personnel (or medical) records if they are involved. Do not take the grievant’s word.

6. Check out the story or the supervisor and other employer witnesses beforehand – obviously they might be in error also.

Record Tests

Often employers’ discipline and discharge actions are based on records of employees. Make certain that records are accurate. Look them up. Find out who make the entries and if possible interview those who made the entries. Often the person who did it tells a different story now or has long departed.

Consistency Tests

Compare the grievant’s action with others. Make certain he/she did not do things any different or worse than others who were not disciplined at all, or were less severely disciplined. In this respect the employer may have acted in a “discriminatory” or inconsistent manner and you stand a better chance of winning your case.

Check the Contract, Rules, etc.

Often the grievant may have been wrong, but should not be disciplined because there was no violation of a rule or the agreement. In this regard you should make certain that even if there was a rule violation, it must have been a reasonable rule and well publicized. While ignorance of a rule per se is no excuse, ignorance because of bad or improper communication may be defensible. Also if the rules are unreasonable or not related to the work, safety of others, or employer’s image the grievant may not be held culpable.

Study the Grievance

Sometimes the reason for the disciplinary action or discharge was predicated on a specific act. If the employer later tries to base its action on other more broad charges, they may be prohibited because of the initial charge. Moreover, the rule of reason based on time should be considered. In other words, past charges which are “stale” may not be used against the grievant. (Be careful on this point. For example, if you want to introduce evidence to show the grievant has been a good worker for 5 years, you may open a “Pandora’s box” to allow the company to introduce evidence which shows the bad aspects of the grievant’s work history.)

Look for Motive

Where fights or insubordination, profanity, etc., are involved, check to see if the grievant was provoked or trying to defend him/herself Being an initiator of an action vis-a-vis defending one’s self is different.

Look also to supervisory motive. If you can show that a supervisor had reason to “do in” the grievant, that should be brought out.

Credits: Council #4 Labor Education Department

UCONN Labor Education Center, Thanks to Mark Sullivan & Wayne Marshall