Using Grievances for Bargaining

The interplay between grievances and the contract during and after the term of the agreement

Hi folks! Sorry for my month-long absence, but I was traveling and frankly, I forgot all about work a few weeks. I highly recommend doing this. Go on vacation for a minimum of two weeks. Set your “out of office” message and forget all about your job. Any shorter than two weeks and people will wait for you to come back to lay their worries at your doorstep, but if you are gone for longer than two weeks, they will deal with it themselves or they will bring it to a different doorstep. Either way: not your problem.

Anyway, back to the blog. Usually I write about labor arbitration, and I promise, this will link back to that in a moment. But I want to talk a little bit about collective bargaining and the role of grievances in that process.

I believe collective bargaining is the best way for unions, employers, and workers to get the best possible conditions for the success of all three. But a collective bargaining agreement cannot cover every single imaginable situation that arises in a workplace. Believe me, some parties try to bargain about everything. As a result there are master agreements that run hundreds of pages and have interpretation manuals to provide guidance about the CBA itself. Don’t worry, that doesn’t put us arbitrators out of the job; it just means there’s more work than ever!

During the term of CBA, however, new topics will arise which the parties wish they could address. And of course, they can. Parties can create side letters, addendum, and policies that address new circumstances. More often, however, one party takes some unilateral action about the issue, such as creating a new unbargained policy change or filing a grievance. Those grievances make their way to the arbitrator and may settle before a decision is rendered. The settlement might be a withdrawal, a new policy, a “meet and confer”, a new side letter - you get the idea. Or you might get a decision. I’m probably not telling you something you don’t already know.

But let’s talk about regular collective bargaining. The grievances that get filed during the term of the agreement are probably one of the best resources for deciding what a party’s bargaining proposals should be. I am not just referring to the grievances that are pending at the time of bargaining. I mean, ALL the grievances.

Reviewing all the grievances prior to bargaining will illustrate trends in the workplace, areas of disagreement that the contract simply wasn’t prepared to address. And in a lot of cases, the CBA may not be the best place to address the issues. An uptick in discipline for cell phone usage during work is an indicator that there may need to be some discussion about those rules/policy, but the CBA probably doesn’t need to be amended to address cell phone usage. A grievance is a point of friction, and bargaining is the period of the contract when the maintenance happens. The points of friction can get a little WD-40, so to speak.

Talking about the grievances at the bargaining table may help the parties find efficiencies in the grievance procedure. Are all the step 2 responses getting hung up because frontline supervisors haven’t been trained? Is the “service by mail” requirement causing timeliness problems?

This isn’t just advice for the union; the employer should also be thinking constructively about what the grievances can teach them about their own processes? Did they have to settle too many grievances because no one in HR has the authority to adjust a grievance at an earlier stage in the process? Does the just cause provision fail to capture the infractions which are unique to this workplace? There are a lot of secrets about your operations that your grievances can teach you.

There are other messages to be found in the existence of the grievances themselves. Unions might choose to file more grievances closer to the end of the agreement so that they have leverage in bargaining or are becoming more adversarial in anticipation of difficult negotiations. Employers may do something similar: refuse to adjust those grievances in order to extract more concessions at the table.

No one needs to wait until bargaining to review the grievances that have been filed since the beginning of the contract term. Mid-contract discussions about the grievance procedure are valuable to improving labor relations and reducing the likelihood that grievances will aggravate bargaining or lead to arbitration. Near the end of a contract term, many arbitrators are reluctant to resolve a grievance that will inflame bargaining. I know I’ve written decisions that say, in essence, go bargain over this. Or “Here’s what the agreement says, and if you don’t like it, you are free to bargain something new in a few months.”

I hope this has given you some food for thought. I’m curious to know if you have any questions! Feel free to send me a message if you do.