Contract Administration

1
Contract Administration

• Bringing the Agreement to Life

2
Grievances Definitional Issues

• Definition Usually, a perceived contract
  violation that is submitted to the grievance
  procedure (GP) for resolution. A formal
  complaint. Not gripes, grumbling, whining, etc.
• Courts have often endorsed broader meaning than
  just alleged violations of what are clearly
  contract matters
• Common law of the shop
• Past practice
• External statutes or common law
• Implied management obligations
• Good faith bargaining obligation includes the
  requirement that management accept and consider
  grievances

3
Grievance Basics

• Filing usually limited to workers and unions --
  why?
• Comply, then grieve is the general rule for
  workers
• Most GPs require written grievances at an early
  stage -- though possibly after an initial verbal
  presentation
• Gives focus, prevents shifting grounds or
  changing the issue
• Provides a basis for precedents
• Reduces emotional elements, clarifies objective
  issues
• Practical value also in deterring frivolous
  grievances
• GPs are a key voice institution. Unions aim to
  give workers a voice at the workplace, and this
  is a key part of how that works (not just every
  three years at negotiations!)

4
Why Do Grievances Arise?

• Mainly, to protest perceived violations and seek
  remedies
• Labor agreements are necessarily imprecise
• Parties cant possibly anticipate everything
  (e.g., just cause)
• Might anticipate that vague language will lead to
  different views, but be unable to work out
  specific agreement. Maybe it didnt seem worth a
  strike and probably wasnt (e.g., seniority and
  ability will be considered)
• Outright violations due to ignorance, mistaken
  interpretations, or needs for expediency
  (intentional)
• But grievances also arise for other reasons
• To get something for nothing (strategists)
• To call attention to problems, whether
  contractual issues or not
• To gain personal attention -- a conspicuous
  soapbox
• To make a supervisor look bad
• To build up bargaining chips for later trades

5
Grievances About What?

• Four-organization study
• Pay 17
• Working conditions 16
• Performance and permanent job assignments 16
• Discipline 14
• Benefits 14
• Mgmt. Rights 7
• Discrimination 6

• Earlier broader-based study found discipline was
  the largest single category about 33

6
Grievance Procedure Characteristics

• Usually 3-4 steps, each subsequent step involving
  higher levels of authority for both sides, e.g.
• Step 1 Grievant and/or steward with supervisor
  (written or oral)
• Step 2 Steward or chief steward with supervisor
  and IR/HR staff rep
• Step 3 Chief steward and local pres. with IR/HR
  head and plant super.
• Step 4 Binding arbitration by a neutral third
  party
• Nearly all procedures end with arbitration, but
  some are open-ended (strikes possible), or
  open-ended on some issues
• Important quid pro quo GP w/ arbitration
  no-strike pledge. Language on both often read
  together
• Design, scope, and other specifics up to the
  parties

7
Grievance Procedures Structures Enable Certain
Functions

• Primary To resolve problems close to their
  source. This is likely to lead to appropriate
  resolution and commitment of parties to it
• Other functions (mostly unintentional)
• Provide training for union and ER staff
• Politics Higher-ups involvement lends
  importance to participants and provides a
  conspicuous role for the higher-ups
• Buck-passing Lower-level officials can dodge
  or duck issues, kick it upstairs and say they
  were overruled (letting others take the heat for
  bad news)

8
Clinical and Legalistic Approaches

• Legalistic approach
• Emphasis on whos right according to the letter
  of the law (contract)
• CYA mentality (cover your assets?)
• Can avoid bad precedents
• Problems
• May not address underlying problem
• Problem likely to fester and resurface

• Clinical approach
• Find basic causes of problems, not symptoms
• Stress fairness and communications
• Stress problem-solving
• Problems
• Fairness not well defined
• Bad precedents possible by case-by-case focus
• Fairness and open communication can fuel more
  grievances

9
Effective GPs Norms

• Clear procedure and participant roles. Waivers
  of rules (e.g., on time limits) possible by
  mutual agreement
• Supervisors need authority to resolve grievances
  near their source (but legalistic view often
  prevents this for fear of bad precedents)
• Individual, objective consideration of each
  grievance to protect individual EE rights

10
Horsetrading and Related Issues

• In reality, grievances often get traded off for
  one another in a Step 3.5 or shakeout session
• Both sides want to avoid arbitration costs and
  risks of an undesirable arbitrator decision
• Advocates A legitimate cooperative effort,
  sometimes needed to avoid or reduce backlogs
• Courts Union must have some discretion, a wide
  range of reasonableness, in deciding which cases
  to pursue, drop, or trade. Burden is on
  individual to show union violated its fair
  representation duty

11
The Duty of Fair Representation (DFR Obligation)

• Quid pro quo the union gets for right to be
  exclusive bargaining agent
• Complexities Balancing individual rights
  against majority rights and interests
• Common scenario Grievant feels the union
  violated its DFR by failing to press grievance or
  take it to arbitration
• Note DFR suit threats are part of the reason
  unions press unpopular or questionable grievances

12
Legal Guidelines for DFR

• The union must
• Consider all EEs
• Make good faith effort to serve all w/o hostility
  to any
• Exercise its discretion with good faith and
  honesty
• Vaca vs. Sipes case
• Union and Co. doctors agreed that grievant should
  not be put back on the job, so union dropped
  grievance
• Grievant filed DFR suit, lost. Court said
• Union made good faith effort and had reasonable
  grounds for its decision not to arbitrate the
  grievance
• No absolute right for grievant to arbitrate
  union owns that right
• Burden of proof is on EE to show violation

13
DFR Legal Matters, continued

• Types of conduct likely to be judged violations
• Arbitrariness -- no clear reason for decision
• Discrimination -- race, gender, loyalty, friend,
  etc.
• Negligence -- poor investigation, incompetence,
  etc.
• Dishonesty -- e.g., a payoff
• DFR issue concerns ERs too
• Joint liability for DFR violation damage possible
• Contributory negligence (e.g., bad investigation,
  faulty firing)
• Deep pockets theory (Co. has resources union
  may not)
• Implication Co. should try to ensure union does
  job well, but not interfere in internal union
  affairs
• Key case Hines vs. Anchor Motor Freight
• Drivers allegedly submitted false receipts for
  reimbursement
• Co. fired drivers. Union investigation supported
  Co. decision
• Real culprit The motel clerk. Co. and union
  liable for damages