Basics of Grievance Processing

  1. Timelines: Know your contractual timelines for grievance filing and make sure you comply with them at every step of the process.
  2. In the unlikely event you miss a deadline, proceed anyway. If the employer proceeds and does not object, it may have waived any timeliness objection.
  3. Team Unity: Make sure the orchestra committee and local officers are all fully aware of the facts of the grievance and in the loop throughout the process. Caveat: If the grievance concerns highly personal information about a musician, detailed information should be shared only as needed and the privacy of the musician safeguarded.
  4. Drafting: Write a good grievance.
  5. “The [discharge/discipline] of [grievant] on [date] is not for just cause and is in violation of the CBA [specific article if applicable] [and the past practice, if applicable].”
  6. If employee claims discrimination based on sex, race, national origin, age or disability, include a claim that the Company’s actions were discriminatory.
  7. “The ____Symphony Orchestra violated the parties’ CBA, including, but not limited to Article___ [and the past practice and/or other agreement(s)], when it ______[brief description of action taken] on ___ [date].”
  8. Specify the remedy sought: use “including, but not limited to…” language.
  9. In discipline, grievant immediately reinstated and made whole for all losses s/he sustained as result of the employer’s actions; all record of the discipline removed from the employee’s file.
  10. In contract violation, “cease and desist” as well as make whole.
  11. Investigation: Conduct an investigation that is reasonably meaningful considering the facts and circumstances of the grievance or potential grievance.
  12. Interview grievant and any other witnesses
  13. Request (from both employer and grievant) and review any relevant documents
  14. Take good notes and retain records of the investigation
  15. Discussion/Resolution: Meet with the employer to discuss and attempt to resolve the grievance
  16. At the earliest stages of the grievance process, the most important thing the union and its representatives can do is to ask questions and listen to (and document) the answers.
  17. You are trying to pin down the:
  18. Factual and legal basis for the employer’s actions
  19. In discipline, what investigation the employer had performed and what it knew at the time it imposed discipline
  20. Avoid locking yourself into a position until you know all the facts.
  21. Argue both general principles and specific points
  22. In discipline, argue that the discipline was not for just cause, but also argue the specific reasons why it did not meet that test.
  23. Evaluation/Settlement: After the Union has undertaken an investigation, consider whether it is appropriate to proceed, withdraw the grievance or explore settlement.
  24. Not every grievance is a winner. There are many different situations where the best course is either to withdraw the grievance or to try to find a middle ground for settlement.
  25. If you withdraw the grievance, do so “without prejudice” to the union’s position on the general subject and on a “non-precedent-setting” basis.
  26. What this means is that the union is not conceding anything on the bigger principle but is simply deciding, on the narrow facts of this particular grievance, that it is better to withdraw the grievance and perhaps fight the battle later on slightly different turf.
  27. If you withdraw a discipline grievance, you should always get the member’s consent in writing.
  28. Argument: If you decide to proceed, frame the union’s position in terms of the legal standard an arbitrator would apply.
  29. In discipline, why the discipline will not satisfy the tests of just cause. For example:
  30. Employer’s investigation was inadequate or biased
  31. Employee not afforded progressive discipline, opportunity to correct problem
  32. Disparate treatment
  33. Given employee’s long service and work record, the amount of discipline was excessive
  34. In contract interpretation, why the union’s interpretation is the correct one
  35. Clear and unambiguous language will be given effect; words given their common meaning
  36. Goal is to ascertain and give effect to the intent of the parties
  37. Contract must be read as a whole; arbitrators favor an interpretation that gives meaning and effect to all words and provisions
  38. Noscitur a sociis: Use context to give meaning to ambiguous words or phrases
  39. Specific language controls over general language
  40. Expressio unius est exclusio alterius: to express one thing is to exclude others
  41. Past practice: where language is unclear, custom and past practice of the parties (or the industry) will prevail
  42. Bargaining history: where language is unclear, the meaning given to the language during negotiations will be given great weight