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What Does "No" Really Mean?
Many stewards hear the word "no" more often than they would like. It might happen like this.
A member comes to you with what seems like a clean grievance. They have been bypassed for overtime and according to your investigation they were at the top of the list, but were never asked. Simple?
You decide to meet and discuss the issue with management because it appears that the supervisor committed some oversight here. But when you get into the supervisor's office, he begins to talk about emergency work and needing to assign an available employee without going to the list. Your jaw begins to drop, the muscles tighten and it takes all your effort not to explode. You have just entered the world of grievance denial.
What happened?
Bad decisions
Chances are the supervisor on duty made a poor decision and management is now using the emergency work excuse as a cover. Of course the member has been wronged, but management doesn't like to admit it made mistakes. So it compounds the mistake and gets the union members angry.
Here's another scenario. Your shop has enjoyed a practice for many years. There is nothing in the contract that deals with the practice but a new supervisor decides to end it. You protest through the grievance procedure and are told the grievance is denied. When you ask why, the supervisor reads you the management rights clause of the agreement.
Don't take no for an answer
We have to live with bad answers and grievance denials but that doesn't mean the process ends. Your first move is to explain to the grievant what just happened and make it clear that the union will not allow management to play games with his/her grievance.
Next, you must research and document the grievance thoroughly, if you have not already done so. Make sure that your notes of the first level meeting go into the union's file in case the second step appeal is handled by a different union officer. Insure that record is complete. Talk to the chief shop steward, executive board member, or local officer so that the proper person can make the strongest case on appeal to the next step.
Always consider the reason for the denial but your rebuttal is not necessarily the primary argument. If a member is passed over for overtime and there was no real emergency, stick to your guns about the bypass. If the supervisor hides behind the management rights clause--and they often will--insist that the employer consider the practice as part of the unwritten agreement between both sides. Show that the practice has been ongoing for a long enough time period that it appears to reasonable people that this is the way both sides conduct their business.
What about no answer?
Let's take a variation of this case. Suppose the supervisor doesn't answer your written grievance within the time limits set out in the agreement. The union must then choose to move the grievance up on appeal to the next step.
In the space on the form for management's reply, write in that still empty space, "not answered in a timely manner," and appeal to step 2. Do not miss out on the time limits.
When a supervisor does not reply to a grievance, it is usually because he or she is overworked, negligent, can't make a decision or won't make a decision. I have heard senior management complain that their worst nightmare in the grievance process is to go to arbitration where their lower people did not answer the appeals and the union progressed the grievance. Most of the time, they would settle the grievance to save face.
Employers will go to the issue of time limits first when responding to a grievance. And the language that justifies a rejection of the grievance on the basis of missing the time limit is usually found in the labor agreement. Good grievances--grievances with merit--can be lost when management sees that the union has missed time limits.
Keep appealing
The key is not to let management control the grievance procedure through denial or refusals to reply. Their hope is that denial or silence might make the grievance go away.
As frustrating as these tactics are, they cannot be allowed to divert the union from its primary task of defending members' rights on the job.
Writing a Grievance
One of the most difficult jobs of any grievance representative is writing a grievance. Many of our contracts provide for the steward or representative to write the grievance on behalf of the member. By having the steward write the grievance, the union is better able to track the issue and control the grievance procedure. The member is better represented and the process is used to build solidarity in the local union.
Your grievance form
The first step of the grievance process is an informal meet and discuss meeting involving the member, steward, and first line supervisor. Your goal is to settle issues early. In order to be effective towards this goal you must make advance preparation. Use your investigation form when interviewing the member, and follow the steps in the "Grievance Interview" section. Review the section "A Dozen Points on Grievance Presentation". Take a pad and pencil with you when you meet with the supervisor for the first step grievance meeting, and take notes of each participants statements. If you are unable to resolve the issue at this meeting, let the supervisor know that you will need a verbal response by the second working day after the grievance was presented.
If the grievance is denied, complete the first step grievance form including the company's response and submit it to your Local President. Include a copy of the investigation form and any pertinent notes. Your Local President will assign a number to the grievance and submit a 2nd step grievance form to the company. The contract states that, "If the Union does not carry a grievance to the next higher Step within ten working days after the Company has rendered its decision, the grievance shall be considered settled in favor of the Company." Be aware of timeliness issues and mark deadlines on your calendar for follow-ups.
Be timely
You must be timely in the presentation of your grievance. That means you should file it within the proper amount of time that is stipulated in your contract. Be careful of contract language. Working days and calendar days are different. Filing after the knowledge of the occurrence is different from having to file after the date of the incident.
When you write the grievance, limit the statement to basic information. Provide only enough information to identify the grievance so that management understands what the basic problem is, what violations have occurred and how the problem should be fixed.
Be brief
You are not obligated to tell management in a grievance all of the results of your investigation. Don't do their work for them.
Omit the union's arguments, evidence and justification for its position. You should save that for the grievance meeting. You don't need to tip your hand before you get to that grievance meeting. Avoid personal remarks. State the position of the union not opinions. Opinion words include "I think," or "I believe." Avoid them.
When stating why there is a grievance use the phrase "management's action is in violation of the contract including Article VIII, Section 4 and 5." (Example) Allow for the possibility that there could be other violations.
The remedy
You need a remedy in every grievance. By filing a grievance you are demanding that management right an injustice. Management will not give you anything. You've got to tell them what you want.
When you write your remedy, don't limit it. In grievances that involve money, benefits, or protests of discipline, use the phrase "the grievant should be made whole in every way including . . . ." Then ask for what you want.
The general phrase "made whole in every way," means that the grievant should receive any and all losses due to management's action. The word "including" allows you to add specific remedies later on in writing or in oral discussion with management.
Just because you use the phrase "made whole in every way," does not mean that management or even an arbitrator will search out the specific benefits management has denied your grievant. It is up to you to list verbally or in writing any remedies not noted in the original grievance.
Keep the grievant up to date on the process of the grievance. Your job doesn't end when the form is filed.
