grievances: 101 for barneys 2015 acsa personnel institute october 8, 2015 – irvine, california...

GRIEVANCES: 101 FOR BARNEYS

2015 ACSA Personnel InstituteOctober 8, 2015 – Irvine, California

Presented by:Sally J. Dutcher

WHAT’S A BARNEY?

A surfer term for beginner or novice

The goal of this presentation is to help you become “Rad” at handling grievances

Another surfer term of experienced and excellent

PURPOSE

To prepare you to:• Implement employee contracts to prevent

grievances• Handle grievances effectively• Understand arbitration, how to decide to

go there and what to do to prepare for it

WHAT IS A GRIEVANCE?

A grievance is a formal complaint that can be initiated by one or more representedemployees concerning:

1. An alleged breach of the terms and conditions of the labor agreement; -or- 2. An overall dissatisfaction relating to the interpretation, application, administration, and/or practice of a provision of the agreement that the grievant(s) believes has resulted in inconsistent and unfair treatment of an employee or group of employees

WHAT IS ARBITRATION?

Arbitration is a proceeding voluntarily chosen by the parties:who want a dispute determined by an impartial judge of their own mutual selection, whose decision, based on the merits of the case, they agree in advance to accept as final and binding.No dispute is taken to arbitration before grievance procedures have been exhausted.

BEFORE A GRIEVANCE IS FILED

ROLE OF THE SITE ADMINISTRATOR/DIRECT SUPERVISOR

Implement and protect management rights. Carry out obligations imposed on management by

the collective bargaining agreement (CBA). Supervisors must know the contents of the CBA. Failure to carry out and exercise fundamental

management rights and contract terms will create an unfavorable past practice.

MANAGEMENT RIGHTS

“Management rights" refers to those areas that are not the subject of negotiation.

“Scope of Bargaining” refers to all matters relating to employment conditions and employer /employee relations, including but not limited to wages, hours, and other terms and conditions of employment."

EXAMPLES OF MANAGEMENT RIGHTS

Determining the standards and levels of service, operations to be performed, utilization of technology and equipment, means and method of operation, and overall budgetary matters.

Hiring, promoting, transferring, assigning and retaining employees and suspending, demoting, discharging or taking disciplinary action against employees of any district or department.

Establishing performance standards for employees.

MANAGEMENT RIGHTS

CBA’s may or may not include a management rights clause.

Even though the examples are generally accepted management rights and prerogatives, this does not mean they will not be challenged.

The unique adversary nature of collective bargaining means public managers must remain alert to such challenges at all times.

WORKPLACE MORALE

Public managers must always balance preserving fundamental management rights while at the same time developing and maintaining a positive perspective toward dealing with employee organizations.

Positive attitudes toward employee organizations will be essential for successful grievance resolutions.

THE FILING OF A GRIEVANCE

APPROACH TO THE GRIEVANCE PROCESS

The grievance process was designed to resolve disputes at the earliest possible level.

The parties’ attitude in handling grievances is the most important indicator of good faith.

Settlements at the beginning stages can be facilitated by honest, open disclosure of each parties 'position and rationale

Grievances get magnified as they progress up the procedural ladder

GRIEVANCE PROCEDUREPURPOSE OF GRIEVANCE PROCEDURE:• To provide an orderly method for processing employee

concerns regarding:– Interpretation of Agreement– Application of Agreement– Compliance with Agreement– Past Practice

• Keeps Lines of Communication Open• Provides a Safety valve• Improves relationships

GRIEVANCE STEPS

The number of steps in the grievance process differaccording to the collective bargaining agreement involved, but each contain the following:

1. Verbal Grievance• Informal Level

2. Written Grievance• Formal Level I, II, III…

3. Mediation (sometimes)4. Arbitration

GRIEVANCE TIMELINES

• Refer to the appropriate CBA article/section titled “Grievance Procedure” for the applicable time limits for receiving and responding to grievances.

• Additionally, look to your contract’s definition of a grievance.

• Note:Any grievance not answered by you within the time limits specified shall be submitted to the next step.

GRIEVANCE CHECKLIST

Check the Contract’s Key Elements– Verbal or written?

– Allegation or other?

– Who can grieve?

– What has to be shown? (Adverse effect?)

– What has to be violated?

GRIEVANCE CHECKLIST

Initial Considerations:

– Is Grievance timely?

– What specific article & section?

– What is the factual statement in the grievance?

– Signature of grievant(s) present?

– What remedy is/are grievant(s) seeking?

GRIEVANCE CHECKLIST

Investigate:– Check timelines

– Question all witnesses

– Review all relevant contract language

– Review relevant policies, procedures and the law

– Check past practices

– Check disposition of similar grievances

– Review with management

– Status of the Contract

CONTRACT INTERPRETATION

Grievances often involve the meaning or intent of express contract language. Some contract interpretation rules used to determine meaning include:

• Plain meaning • Negotiations history• Prior grievances, MOU’s, settlement agreements

related to the same or similar contract language

PAST PRACTICE

Where the collective bargaining agreement is silent on an issue, or where the language is ambiguous, courts may consider the past practice of the parties to establish their respective rights.

To be binding, a past practice must be: Unequivocal Clearly enunciated and acted upon; and Readily ascertainable over a reasonable period of time

and established practice accepted by both parties.

PAST PRACTICE

PERB has described a valid past practice as one that is "regular and consistent" or "historic and accepted."

Most common areas associated with the past practice argument include:

Benefits or working conditions such as procedures for granting personal leave.

Overtime. Seniority rights. Call back procedures. Lunch and other breaks.

BINDING PAST PRACTICE CHECKLIST

Does CBA address the issue? If so, in clear and unambiguous

terms? If contract language not absolutely

clear, can intent of parties be ascertained from negotiating history (prior CBAs, negotiating notes)?

BINDING PAST PRACTICE CHECKLIST

If CBA is silent on issue, is it a matter subject to collective bargaining under the EERA?

If yes, is there a binding practice? Has the alleged practice been clear and consistently

applied? Has the practice been followed with a reasonable degree

of frequency (as opposed to a few isolated instances) and for a reasonable period of time?

Did employees and supervisors have knowledge of the alleged practice and regard it as the customary means of handling the issue?

If these standards were met, are the factual circumstances of the claim similar to the circumstances that gave rise to the binding past practice?

REVISITING A PAST PRACTICE

Needs to be negotiated. Publicize the intent to curtail or correct

the practice. Consider the time element.

RESPONDING TO THE GRIEVANCE

GRIEVANCE RESPONSE

Informal Level:Employee presents oral grievance to immediate supervisor within timeframe specified in Contract.

Employee may have union steward present.

Informal Level Response:Attempt to rectify problems presented, but do not negotiate with grievant(s).

Wait until a formal grievance Level 1 is filed to formally respond.

** Note: See Supervisor’s Checklist for Handling Grievances at the Initial Step Worksheet **

GRIEVANCE MEETING

– Before discussion, do your homework

– Review the grievance with the grievant(s) and the representative

– Get the facts

– Get the contract provisions allegedly violated

– Be certain to have all the information you need before responding

– Do not respond to a demand for an immediate answer

GRIEVANCE MEETING

– Check previous grievance settlements for precedent

– Talk to witnesses

– Check district records

Give a clear answer:

– State your position orally

Follow up:

– Make sure any action promised was carried out

GRIEVANCE RESPONSE

Formal Level 1:If oral grievance is not satisfactorily adjusted, grievant can submit grievance in writing stating the issues involved, citation of the specific article in the contract being grieved, and citing the decision at the informal level.

Formal Level 1 Response:– Respond to issue(s) raised in grievance

– Review with central “keeper of knowledge”

– Respond within timelines

– Sign and date

– Distribute

GRIEVANCE RESPONSEFormal Level 2:If the grievant is not satisfied with the decision in Formal Level 1, an appeal to Formal Level 2 can be made.

The appeal should include a copy of the original grievance, decision rendered at Level 1, and reasons for

the appeal.

Level 2 Response:– Respond to issue(s) raised in grievance

– Review with central “keeper of knowledge”

– Respond within timelines

– Sign and date

– Distribute

EMPLOYER’S REFUSAL TO AGREE TO A RESOLUTION?

ARBITRATION

PERB’S JURISDICTION

ARBITRATION STEPS

1.Decision to Arbitrate

2.Arbitrator Selection

3.Preparation

4.Hearing

1. DECISION: COST

– Arbitrator

– Your attorney

– Court reporter

– Witnesses

– Staff time

– Award

1. DECISION: COST/BENEFIT ANALYSIS

– How critical is the decision?

– What are the chances of winning?

– Objective review of the case• Review grievance file• Review contract language• Examine known facts

– What can be proven?

1. DECISION: CONSEQUENCES OF LOSS

– Ramifications beyond present grievance?

– Purpose met with favorable award?

– Will decision settle continuing dispute?

– Will significant management rights be lost by unfavorable award?

– What are long-term consequences if unfavorable award?

SETTLE IF…

– High probability of losing

– Consequences of loss are significant

– Negotiation/mediation is possible.

SETTLEMENT AGREEMENT

– Union needs to be a party

– Consideration • Withdrawal of grievance with prejudice

– Not precedent - setting

– Full understanding

– Conclusion of agreement

2. ARBITRATOR SELECTION

– Contractual Requirements

– Sources• Ad-hoc selection• (CSMCS, FMCS, AAA, JAMS)

– Permanent panel

– Single umpire

2. ARBITRATOR SELECTION: WHAT TO LOOK FOR

– Not who won/lost

– Awards in similar cases

– Reasoning

– Predictability

– Bias

2. ARBITRATOR SELECTION: WHERE TO LOOK

– Biographical sketches

– Published decisions

– Trade associations

– Networking

– Your attorney’s files and sources

2. ARBITRATOR SELECTION: PICKING THE ARBITRATOR

BEWARE: MAJOR DECISION– Rank names

– Strike names

– Negotiate who

– First available

3. PREPARATION: PRE-ARBITRATION STEPS

– Identify precise issue(s)

– Develop theory of your case

– Anticipate union cases

– Types of evidence

– Organize evidence

3. PREPARATION: PRE-ARBITRATION STEPS

– Types of witnesses

– Witness evaluation

– Select best witness

– Witness preparation

– Order of witnesses

3. PREPARATION: PRE-ARBITRATION STEPS

– Anticipate union’s case

– Prepare opening statement

– Hearing notebook

– Court reporter/audio tape

4. HEARING STEPS: HEARING SEQUENCE

– Open

– Submission of issue(s)

– Stipulations, motions & objections

– Opening statements

4. HEARING STEPS: HEARING SEQUENCE

– Union’s case in chief

– Employer’s case in chief

– Close

4. HEARING STEPS: AWARD

– Time limit

– Hearing close

– Retained jurisdiction

– Appeals

– Implementation

– Payment

PERB’S JURISDICTION

ARBITRATION AWARDS REPUGNANT TO EERA

RECORD RETENTION

– Types of grievances and arbitration cases, disposition and cost

– Labor savings through elimination of costly past practices

PREVENTING GRIEVANCES

Know the collective bargaining agreement.

Maintain a positive work relationship with shop stewards and labor representatives.

PREVENTING GRIEVANCES

In order to prevent a grievance: • Identify potential problems and causes

• Correct problems promptly

• Encourage corrective suggestions

• Establish and reaffirm work policies and rules

• Communicate often and give advance notice of changes

• Be objective

• Be consistent• Listen well

Thank You!

For more information about our Full-Service Education Law Practice please visit us at www.kmtg.com