Enforcing Your Contract: Grievances, Labor-Management Committees, and Unfair Labor Practices

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AAUP Summer Institute | University of Nevada, Reno

July 21, 2022

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Facilitated by Monica Owens, AAUP, Sarah Lanius, AAUP, and

Siobhan Senier, University of New Hampshire

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You will have access to this deck after. 🙂

We will take a 10 minute break. 🙂

Feel free to use this deck

to train your colleagues.

Feel free to step away

as needed any time.

Goals for Today

Will Do:

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• Discuss methods of contract enforcement
• Review the grievance procedure
• Look at the rights of grievance officers
• Write a practice grievance statement

Might Do:

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• Generate feedback about specific contract enforcement challenges facing your chapter

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Won’t Do:

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• Prepare to file a specific grievance for your chapter

Contract Enforcement is…

What is a Grievance?

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griev·​ance | \ ˈgrē-vən(t)s \

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Definition of grievance

1 : there is no technical definition; it is whatever your

contract says it is

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2 : is defined by the grievance article in your contract

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Common Exceptions

• Performance reviews

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• Promotion or tenure decisions

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• Check your contract for exceptions

to the grievance procedure

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• Control-F is your friend 🙂

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• If the meaning is clear at face value, an arbitrator

will not look beyond the contract itself

• Words will be given their ordinary meaning unless

another or technical meaning is provided

• Words will be interpreted in the light of the law
• Words are understood in context and the agreement is “construed as a whole”
• Listing items means that only the items listed are covered
• Specific wording trumps general wording
• All words in a contract have meaning

The Four Corners of the Document

Beyond the Four Corners

• Bargaining History:
• Communications between parties before and during bargaining
• Bargaining notes
• Proposals and counters exchanged
• Language carried over from previous agreements
• Other factors:
• Prior settlements

- Industry practice

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Faculty have a right to a union representative:

• at a mandatory + “investigatory” meeting
• when it is “reasonably believed” discipline may result from meeting
• when they request a representative prior to or during the interview

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"If this discussion could in any way lead to my being disciplined or terminated, or adversely affect my personal working conditions, I respectfully request that my union representative be present at the meeting. Without representation present, I choose not to answer any questions."

Weingarten Rights - Members

• Before the meeting, the steward should, if possible:
• learn what the questioning is going to be about
• consult with the member privately

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• During the meeting, the steward has the right to:
• request the reason behind the meeting and what misconduct is being investigated
• ask for a caucus to advise the faculty member in private
• object to intimidating, confusing, or unreasonable questions
• cite any mitigating circumstances that the employer should consider before imposing discipline
• keep a written, word-for-word record of the meeting

Weingarten Rights - Stewards

• Legal duty of a union to equally represent every employee in a bargaining unit, member or not.
• The union must represent members' interests without hostility or discrimination; exercise discretion with good faith and honesty; and not act arbitrarily.
• The union is not obligated to pursue a grievance that has no merit.
• Ways to avoid a DFR charge:
• Investigate all complaints thoroughly
• Ask the employer for all relevant information
• Never refuse to file a grievance because of race, sex, religion, politics, personality, or union membership status
• Honor deadlines
• Keep records of all activities for each case
• Keep the grievant informed throughout the process
• Prepare thoroughly for all arbitrations

Duty of Fair Representation

• Interview the grievant and all witnesses
• Review the contract to see if there are any potential violations
• Keep detailed records of your investigation and notes from all meetings
• Map out the timeline
• Research the history of the problem, including bargaining history
• Consider the employer’s potential arguments and responses

Investigating Possible Grievances

• Who are the people affected by the violation?
• Who are the witnesses?
• Who are the administrators involved?

Questions to Ask

• How was the member affected?
• How is have such matters been handled in the past?

• Why is this a grievance?
• Why did the incident happen?

• When did the violation occur?

• Where did the incident occur?

• What happened or failed to happen?
• What did the administration say, do, and fail to do?
• What is the appropriate remedy?

WHO

WHAT

WHERE

WHEN

WHY

HOW

Information requests

• Under the NLRA and many state bargaining laws, the employer is obligated to furnish information needed to investigate, evaluate, and present grievances
• Must be reasonably specific and made in good faith
• Can be made at any point in the process
• Can go back several years (as many as 10 years when investigating a past practice)
• Unless very sensitive, the employer cannot assert confidentiality
• Set a clear deadline: easily accessible records should be available in 1-2 weeks

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• Discipline grievance - review grievant’s file; ask for the names of all other employees charged with the same offense over past years and a description of any penalties imposed; ask for the reasons why other employees were given lesser penalties.

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• Contract interpretation grievance - request bargaining session notes and other documents and statements the employer is relying on to support their position

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• General inquiries - request documents or records which refer to or reflect the factors causing the employer to reject the grievance

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• Other documents & data - correspondence between administration and outside entities; air quality reports; job descriptions; promotion data by race and gender; benefit plans

• Be honest and clear
• Don’t overpromise
• Work to identify the desired solution
• Involve them in the process as much as possible
• Keep them in the loop
• Explain the reasoning behind each decision
• Look at the contract together

Communicating with Grievants

Writing the grievance

Use qualifiers:

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• “on or about”
• “approximately”
• “and other relevant contract provisions”
• “including but not limited to”
• “be made whole”
• “restore the status quo ante”
• “and any other appropriate relief”

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Keep it simple and limited to the following:

1. The problem that occured
2. The articles of the contract that have been violated
3. The remedy sought

Practice Scenario: Write Your Grievance

• Briefly describe the problem

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• Cite the article(s) violated

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• Identify the remedy requested

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• Name 1-3 witnesses you would interview in this grievance

Jot down any information you would seek as part of investigating this grievance and any witnesses you would interview.

• Describe one potential counter argument from your employer

Practice Grievance Worksheet