You most likely will be called upon to file periodic grievances. This right is to be protected, but not abused and good judgment should be exercised in applying our responsibilities of providing due process. To help assess the validity of a potential grievance consider the following "Just Cause" standards.
Seven Key Tests to Just Cause:
The basic elements of just cause which different arbitrators have emphasized have been reduced by Arbitrator Carroll R. Daugherty to seven tests. These tests, in the form of questions, represent the most specifically articulated analysis of the just cause standard as well as an extremely practical approach.
A "no" answer to one or more of the questions means that just cause either was not satisfied or at least was seriously weakened in that some arbitrary, capricious, or discriminatory element was present.
1. NOTICE: "Did the Employer give to the employee forewarning or foreknowledge of the possible consequences of the employee's disciplinary conduct?"
2. REASONABLE RULE OR ORDER: "Was the Employer's rules or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the Employer's business, and (b) the performance that the Employer might properly expect of the Employee?"
3. INVESTIGATION: "Did the Employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?"
4. FAIR INVESTIGATION: "Was the Employer's investigation conducted fairly and objectively?"
5. PROOF: "At the investigation, did the 'judge' obtain substantial evidence or proof that the employee was guilty as charged?"
6. EQUAL TREATMENT: "Has the Employer applied its rules, orders and penalties even-handedly and without discrimination to all employees?"
7. PENALTY: "Was the degree of discipline administered by the Employer in a particular case reasonably related to (a) the seriousness of the employee's proven offense, and (b) the record of the employee in his service with the Employer?"
Investigating the Grievance:
Take note of the basics when investigating a grievance. Ask the 6 W's:
Timing is everything. The sooner you look into a matter the fresher it will be in everyone's mind. Being on top of things and moving quickly to gather information is a virtue, but not however at the expense of thoroughness. Be detailed as you look into the concerns of the member. Who are the individuals involved in the case? Write them down and gather statements from them as appropriate. First hand information is strong, second hand information is weak by comparison. What exactly occurred? Remember, often times emotion will cloud the issue so take time and get the details and repeat them back for clarity. See what other members know about the case. Where the violation or infraction occurred is sometimes persuasive so be detailed. When will be important for a couple of reasons. First of all the sooner we gather information the more accurate it typically will be. But more importantly, we need to watch the time elements contained within our labor agreements. These time elements require certain processing steps in order to properly move the grievance along and if we fail to watch those time elements we could lose the right to grieve all together.
- Never Refuse To File A Grievance
- WHEN IN DOUBT FILE
- IF SHORT TIME PERIODS REMAIN - HAND-CARRY THE GRIEVANCE TO MANAGEMENT
Determine why the grievance or event occurred and if appropriate what provisions of the labor agreement are violated. If no contract provision is obvious you can file anyway by explaining the concern itself. Interview all known witnesses as soon as possible and record their statements. Listen more than you talk and repeat back to the witness and grievant what you understand them saying.
Not all grievance matters are contract violations. Sometimes there might be a violation of a company policy, state, federal or municipal law, past practice, or a consequence of disparate treatment.
In most grievance matters our stewards and the grievant are encouraged to have a preliminary discussion with the first level of management to determine if they understand the concerns or alleged violation of either party. If this is unsuccessful then a more formal step is to follow.
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