TAB 1 GRIEVANCE PROCESSING ESTABLISHMENT OF RIGHTS
The Education Employment Relations Act (EERA), passed in 1975, provides for “Collective Bargaining” between school employees and their employer. Since July 1977, school employees have had the right to negotiate contracts which spelled out their “Terms and Conditions of Employment” and which can be enforced by the use of a grievance procedure that culminates in binding arbitration.
Prior to 1950 No Voice
1950 – 1965 Right to address the Board of Trustees
1965 – 1975 Winton Act – The professional answer to collective bargaining provided for: . Proportional representation of organizations . CEC – Certificated Employees Council . Non-members unrepresented . “Meet and confer” . Written/verbal agreement were not required
1975 All school employees get the right to bargain
1975 – to present The Rodda Act provided for: . Defined units for representation . Exclusive representation for units . PERB to oversee implementation . Right to bargain binding arbitration . Binding arbitration permitted . Impasse procedures
When the legislature passed the EERA, the relationship between Districts and employees changed. Employee rights are codified into a formal contract covering the wages, hours, and working conditions of the employees in a school district. Once negotiated, it is the Association’s responsibility to insure Management follows its bilateral agreements. That’s where the Grievance Procedure comes in.
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NEGOTIATIONS/GRIEVANCES
The negotiated contract is legally binding on the parties and can be enforced. In the absence of a binding arbitration clause, the contract can be enforced through the Public Employment Relations Board (PERB) as an Unfair Labor Practice and/or the courts as a “Breach of Contract”. Every grievance filed helps define the contract language and impacts the subsequent bargaining process.
DON’T JUDGE – DEFEND
Along with the right to serve as the “Exclusive Representative” comes the duty and responsibility to represent all members of the bargaining unit in a fair and impartial manner. The “Duty of Fair Representation” (DFR) is the most important concept that an Association Representative must understand. The role of an employee organization is to defend and protect their members from management that has all the power simply because it is Management.
Members deserve and pay dues to be protected, not tried by their organization. Members deserve an advocate. Self-assured, confident unit members build a healthy organization.
When the Association takes on Management’s role, it does so at the peril of its members. Only unit members can file grievances; management cannot. Management has the inherent power to obligate. Unit members, however, thanks to collective bargaining, have the right to file a grievance, and if no settlement is reached, go to arbitration for relief.
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MEMBER V. MEMBER
If a member has a complaint against another member, it is not the Association’s business to resolve it unless it can be turned into a complaint against management. Even though a conscientious Representative may try to mediate the dispute informally, there is no grievance if management cannot be held accountable for its resolution. The Association is an employee organization representing each unit member. It is not a counseling service.
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Duty of Fair Representation Pop Quiz
Indicate A (Agree) or D (Disagree) with each of the following statements:
1. _____ The Association is required to process grievances for non-members.
2. _____ The Association has a duty to seek out the views of non-members regarding
negotiations, and non-members have a right to vote for ratification of a contract.
3. _____ Once a site rep refers a contract issue to his/her president or CTA staff person,
he/she has completed the Duty of Fair Representation.
4. _____ If an agency fee payer wants CTA staff or legal assistance on a contract
issue/concern, the Association can say, “No, sorry.”
5. _____ It is OK for an Association to require all grievance to be processed by its
Grievance Committee.
6. _____ The Association does not have a duty to investigate grievances which are clearly
silly.
7. _____ Contractual timelines are normally extended if the site representative, grievant
or grievance chairperson is out on leave.
8. _____ The grievant must be told the Association’s decision concerning his/her request
to proceed to arbitration.
9. _____ Only lawyers may present an arbitration case.
10. _____ A grievant has the right to have his/her attorney present at an arbitration.
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Duty of Fair Representation
The EERA grants rights and powers to the exclusive representative AND also imposes some very real responsibilities. EERA Section 3544.9 states that “…the exclusive representative…shall fairly represent each and every employee in the appropriate unit”, which makes the organization legally accountable to its entire constituency.
Summary of responsibilities regarding Duty of Fair Representation
1. Duty to represent/act of behalf of ALL bargaining unit members – not just Association members – without being arbitrary, discriminatory or in bad faith. 2. Duty to negotiate on behalf of ALL bargaining unit members. Association must afford all bargaining unit members opportunity for input into contract proposals. The Association does not have to seek out non-bargaining unit member views/opinions. Non-members cannot vote for ratification of the contract. The Association should notify the employer that the two bargaining teams have reached agreement on a contract and that it will be subject to ratification by the Association. Association may allow non-members to vote. 3. Duty to be familiar with the contract. Check your Association governance documents and Contract as to who is responsible for filing and carrying through the grievance. The major impact of the Duty of Fair Representation will fall upon your Association’s Grievance Committee and grievance representatives. 4. Duty to advise bargaining unit members of their legal rights per the Contract. Must be a member to receive CTA legal counsel. 5. Duty to handle grievances for ALL bargaining unit members whether they are members of the Association or not. This does not mean that all grievances must be pursued through arbitration. Association must prove that decisions regarding proceedings to arbitration were based on the merits of the grievance, not on the grievant’s membership status.
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6. Duty to investigate grievances. Investigate each claim thoroughly. Never refuse to process a grievance without investigating first. Never express an opinion regarding the merits of a grievant’s case until a full and complete investigation has been concluded. 7. Duty to satisfy contractual timelines. Missing timelines is the most common error yet is the easiest to control. Each Association representative should be informed of all relevant timelines. Establish a calendar and grievance management system. When timelines cannot be met, obtain a joint (both parties) waiver of the timelines. 8. Duty to notify Grievant immediately of union decisions regarding the grievance. 9. Duty to present a good arbitration case. Either CTA staff or legal counsel presents arbitrations. 10. Duty to allow a Grievant to have his/her attorney present at arbitration proceedings. The grievant’s attorney, if present, may not participate, but may counsel the grievant away from the proceedings.
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TAB 2 YOUR RIGHT TO BE REPRESENTED
The Association is the exclusive representative for the bargaining unit members in your district and therefore, the only employee organization authorized to represent individual unit members in certain situations.
What are those situations in which you may want or need representation?
1. An administrator calls a conference with you and you have reason to believe that you will be subjected to reprimand or disciplinary action. 2. You receive a “does not meet standards” overall evaluation. 3. You have a grievance. You are entitled to Association representation at every step of the grievance process, including the informal conference. 4. A meeting has been arranged to resolve a complaint about you – if the complainant is someone other than your designated evaluator, and an administrators is to be present.
NOTE: An employee always has the right to halt any conference already in progress with any administrator, if the conference becomes disciplinary in nature, and may demand postponement for a reasonable amount of time to obtain representation. If you need to be represented, contact your Association representative or an Association grievance representative or call your CTA staff person.
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THE WEINGARTEN RULE An employee has the right to have a union representative at a meeting with the employer if he or she has a reasonable expectation that discipline may result. This is a private sector rule that has been made applicable to Public School employees under the EERA. (See Redwood CCD v. PERB [1984] 159 Cal.App.3d617) THE COURT’S GUIDELINES A. The employee must request the representative. The right arises only in situations where the employee requests representation. The employee may and will forfeit this right if he/she goes ahead and meets with management without an Association Representative. B. There must be a reasonable belief that discipline will result from the investigatory meeting. Regular “run-of-the-mill” conversations with management such as review of job requirements or training will not be covered. However, the right to representation exists even in cases where no discipline does result from the interview. The right to representation is based on the reasonable belief of the employee, not anyone else in the situation. C. The employer is not required to interview the employee. The employer may decide not to interview the employee, if the employee requests the presence of a union steward, but may continue the investigation. The employer does not have to justify his/her refusal to allow union representation. The employer is free to carry on the inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview and forgoing any benefits that may be derived form one. If the employee refuses to be interviewed without his/her Representative, the employer would then be free to act on the basis of information obtained from other sources.
Though this appears to leave the union and employee a choice to make, there is, in fact, nothing to be gained by meeting with management without one’s union representative. An employer who is serious about resolving a problem should welcome a union’s participation. The choice, then remains with the employer. D. The employer has no duty to bargain with the union representative at an investigatory interview. The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only
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interested, at that time, in hearing the employee’s own account of the matter under investigation. E. The employee generally has the right to his chosen representative. The employer’s refusal to allow the employee the representative of their choice when that representative is present and available is a violation of the Weingarten Rule. However, an available union appointed representative can be insisted upon by the employer over the objections of the individual employee if the employee’s chosen representative is unavailable. If using the representative chosen by the employee would result in a delay, it would not violate the Act for the employer to force the employee to accept a different representative. F. The Weingarten Rule also applies to group meetings where management confronts more than one employee at a time. G. The employee is entitled to information from the employer regarding the subject of the investigation prior to the meeting. H. The employee is entitled to consult with his/her union representative prior to the meeting. The National Labor Relations Board (NLRB) has ruled that if the employer insists on an immediate interview, the employee and his/her union representative are entitled to some time to confer in private in advance to allow the employee and the union representative to confer during non-working time. I. The union representative is allowed to request the pre-interview consultation meeting from the employer. J. The employee’s representative has to be allowed a chance to speak on behalf of the employee. The employer violates the law when the representative is told that he/she cannot say anything. The employee representative cannot, however, disrupt or obstruct the interview.
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INSUBORDINATION
Insubordination is defined in Black’s Law Dictionary as “State of being insubordinate; disobedience to constituted authority. Term imports a willful or intentional disregard of the lawful and reasonable instructions of the employer.” Webster defines insubordinate as “not submitting to authority, rebellious.”
IT CAN GET YOU FIRED! Insubordination is one of the major contributing factors in many employee dismissals and is one of the easiest charges to prove. However, it is a concept that is misunderstood by many employees and, as a result, they place themselves in the position of being insubordinate. In order to avoid this hazard, a thorough understanding of the concept is necessary.
REMEMBER WHO’S BOSS! First, it is important to understand that the principal or immediate supervisor has some management rights simply because he/she is the “boss”. Any principal or immediate supervisor has the right to exert leadership, to direct the institutional operations, to enforce rules, policies, reasonable orders and directions so long as they conform to the contract and are clear and unambiguous, not injurious to your health, applied uniformly, and justly administered.
RULE #1: The best rule to follow in regards to insubordination is “Don’t be insubordinate.”
WORK; THEN GRIEVE. If an employee questions a directive issued by the immediate supervisor or principal, advise him/her to discuss the objections with the principal/immediate supervisor. If the principal/immediate supervisor insists that the directive be obeyed, advise the employee member to comply unless it is a threat to their (or their students’) health or safety. Then file a grievance.
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TAB 3 WHAT IS A GRIEVANCE?
A grievance exists when a bargaining unit member has a reasonable allegation that a Collective Bargaining Agreement (CBA) sections(s) has/have been violated, misinterpreted or misapplied.
The Association and the bargaining unit member determine if a grievance exists, not the administration. The District may dispute the grievability of an issue, but may not refuse to hear it or respond to it or to process it through the grievance procedure.
A grievance is a dispute between an Association, through its members, and the District regarding an employment contract, rule or practice. A grievance IS NOT a dispute between employees/members, nor should it be a personal conflict between a grievant and an administrator.
It is essential that the Association assume an advocate posture when processing grievances. Members may always be supported on either the Merit of their case or their right to Due Process. An Association exists for the purpose of representing its members in their employment relations. The Association must assure Due Process for bargaining unit members and an advocate to represent them whenever they must be judged.
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CHAPTER GRIEVANCE PROGRAM
PURPOSE To keep the Association membership aware of their rights under the Collective Bargaining Agreement and to provide assistance to the membership in enforcing that Agreement.
ACTIVITIES Provide all members with a copy of the Contract (or online access to the Contract).
Provide training for grievance representatives in each building.
Answer members’ questions about the Contract.
Represent members at all steps of the grievance procedure.
Serve as an advocate for all members of the bargaining unit with the District.
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CONTRACT ENFORCEMENT CHECKLIST o Has each bargaining unit member been furnished a copy of the current contract? o Has a grievance representative(s) been appointed to serve each faculty? (On large campuses, there should be a grievance rep for every 35 – 40 members. On small campuses, the faculty site rep may do double-duty as grievance rep as well.) o Do the Association’s by-laws provide for a central grievance committee, and provide sufficient authority for it to operate effectively? o Has a central grievance committee (3 - 5 people) been appointed to handle all grievances which go beyond the initial step? o Have all chapter leaders, faculty site representatives, grievance representatives, and grievance committee members undergone training to ensure that they understand the terms of the contract? o Has a contract interpretation meeting been held in each faculty group to afford all unit members opportunity to gain a clear understanding of the contract? o Have all grievance representatives been trained in the techniques of: identifying and surfacing potential grievances, conducting grievance interviews, obtaining documentation, processing grievances through the first step, and handling those problems which do not fall within the definition of grievance? o Have all central grievance committee members received the training described above – and additional training in processing grievances through the intermediate stage(s), as well as in preparing for arbitration hearings? o Have sufficient resources been provided to the central grievance committee? o Has the central grievance committee developed guidelines and objective criteria to help it decide which cases to recommend for submission to arbitration? o Does the central grievance committee maintain complete records of all grievances formally filed, as well as a central file of all problems which
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have arisen but have been determined not to be grievable under the current contract? (These records will be particularly valuable when the time comes to renegotiate the contract.) o Does the Association’s newsletter regularly publish information about contract enforcement, including: Interpretations of key contract provisions Reminders of any contract deadlines which affect unit members (e.g. due dates for transfer applications, salary class changes, etc.) Explanation of how the grievance process works and how the Association represents members Reminders urging anyone who may have a grievance to contact his/her grievance rep Reports on grievances being processed, and grievance won? o Does the Association’s budget include sufficient funding for the contract interpretation program for the effective operation of grievance representatives and the central grievance committee, as well as for potential arbitration of a reasonable number of grievances? (A typical one-day arbitration hearing may cost up to about $1800 – arbitrator and recorder – for all Association costs.) o Has the Association taken a strong advocacy stance, and created a climate in which members step forward freely with their problems, take part willingly in processing grievances, and take pride in enforcing their contract rights and those of their colleagues?
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GRIEVANCE COMMITTEE STRUCTURE An Association must have appropriate structures in order to carry out essential grievance functions. All leaders with grievance functions should be trained.
DUTIES AND RESPONSIBILITIES
President: Oversees the establishment and operation of the grievance program. Appoints the grievance chairperson. Appoints the grievance committee (approx. 5 members including chair). Coordinates grievance program with Executive Board and governance body.
Executive Board: Advises President on the appointment of grievance committee. Aids in establishing and operating grievance program. Assists in developing or revising by-laws pertaining to grievance program. Establishes channel for appealing a decision not to arbitrate. Makes decision on whether a case goes to arbitration.
Governance Body: Adopts a policy statement on the grievance program. Adopts revised by-laws as needed. Adopts budget for grievance processing. Site Grievance Representative: Knows contract, policies, rules and regulations. Surfaces grievances. Represents members in grievance processing at Informal level. Consult with the grievance committee. Represents members in grievance processing at higher levels upon request. Starts grievance filing and documentation. Provides guidance for members with potential grievances.
Grievance Committee: Operates Association grievance program. Represents and advises members in grievance processing. Recommends grievance processing budget. Aids in securing site grievance representatives. Evaluates potential grievances. Counsels and advises members with problems. Develops Association position on grievances. Advises site grievance reps regarding Level I grievance filing and processing. Represents Association at grievance meetings.
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Makes recommendations on whether a case goes to arbitration. Utilizes staff and other resources as appropriate. Develops, secures and maintains grievance forms and records. Observes timelines in processing grievances. Helps in selection of arbitrators for the Association. Works with staff in handling the case. Prepares appropriate grievance publicity. Has thorough knowledge of contract, policies, laws and regulations. Assists in the development, negotiation and refinement of the grievance policy. Make recommendations to bargaining team on issues to be bargained.
Staff: Advises and counsels members and representatives at all phases of grievance processes. Represents members and Association in meetings where appropriate and requested. Communicates with California State Mediation and Conciliation Service or other agencies regarding mediation or arbitration. Represents members and Association in mediation and arbitration hearings. Trains Association leaders and grievance committees in grievance processing. Provides resources of CTA and NEA related to grievance processing.
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ASSOCIATION’S ROLE The role of the Association is to train its representatives to listen to the complaint of a member, devise a “best” strategy for securing his/her interest, and set about securing it. The truth and/or value of a complaint will come out during the grievance procedure. To initiate grievances properly and settle them at the lowest possible level, it is necessary for the Association Representatives to become the first line of defense for the member. Common Grievance Sources Administration: Fear of the administrator, lack of knowledge of job requirements, personality conflicts, favoritism, unclear orders without explanation, unjustified criticism, ignoring complaints, breaking promises, inadequate work instructions, use of threats, ignoring or repelling suggestions for work improvement, penalizing worker for conditions beyond his/her control, layoff without notice, ignoring good job performance. Working Conditions: Haphazard planning of work, unguarded work dangers, poor tools or equipment out of order, uncomfortable or unhealthy conditions, excessive rules and regulations, changed work schedules. Compensation: Basic pay out of line, unequal pay for same jobs, failure to promote when eligible, unexplained pay shortages, failure to review or explain lack of employee progress. Change (a prolific breeder of grievances): Change in policies, rules, methods, equipment, processes, practices, wage plans, work assignments, etc. Any change, which has an impact on people, should be a signal for the possibility of grievances. Pressure (another common source of grievances): Pressure for production, for quality, for cost reduction, for efficiency. When the employer puts pressure on people for any reason, this is a potential cause of grievance. Ignorance (often a cause of grievances): Ignorance of the employer’s reasons for decisions or actions which have an impact on people. Ignorance of the real need or necessity for decisions or actions or of the eventual benefits or advantages, or of the real impact on those who will be affected. Whenever people are in the dark on a management decision or action which will have an impact on them, there is a source of trouble. Incompatibility: Inability of some people to get along with each other. The absence of cooperation between people, and the presence of friction between them, can and often does breed grievances. Incompatibility is a definite signal for potential problems.
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TAB 4 GRIEVANCE PROCEDURE
Grievance procedure is the heart of the Collective Bargaining Agreement (CBA). It is the Article which provides the enforcement mechanism for all other Articles of the Agreement. Individual unit members of the Association may grieve actions of the District that violate the CBA.
The usual mechanism for resolution of grievances is a series of management- labor meetings in order to try to resolve the grievance at the lowest level possible. As a final step, if the parties cannot resolve their differences, the dispute is submitted to arbitration.
It is recommended that the definition of a grievance be as broad as possible, but should at least include all sections of the contract. Some Districts try to exclude certain Articles from the grievance procedure. This should be avoided.
There are two types of grievance arbitration – advisory and binding. If the Association does not have binding arbitration in its contract, which provides that a neutral party will decide disputes over a contract and his/her decision is binding, it is usually because of reluctance of the school board to give up authority.
Binding arbitration is the quid pro quo for a no strike clause.
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GRIEVANCE PROCEDURE Sample Contract Language
Sample language:
Article 10 Grievance Procedure
10.1 Definitions
10.1.1 A “grievance” is a claim by one or more unit members or the Association that there has been a violation, misinterpretation or misapplication of a protection of this Agreement, a violation of the right to fair treatment, or a violation, misapplication, misinterpretation of any law, Board policy, or regulation.
10.1.2 The “grievant” is the unit member(s) or the Association making the claim.
10.1.3 The “party in interest” is any person who might be required to take action or against whom action might be taken in order to resolve the grievance.
10.1.4 A “day” is any duty day in which the grievant is required by contract to render service.
10.2 Purpose
10.2.1 The purpose of this procedure is to secure, at the lowest possible administrative level, equitable solutions to the problems which may from time to time arise affecting the welfare or working conditions of unit members and the Association. Both parties agree that these proceedings will be kept informal and confidential as may be appropriate at any level of the procedure.
10.3 Procedure
10.3.1 Level I Immediate Supervisor
10.3.1.1 A grievance shall be presented in writing to the immediate supervisor using the grievance form with a copy simultaneously provided to the Association. The immediate supervisor shall meet with the grievant and/or designated Association representative within three (3) days of receipt of the grievance. The immediate supervisor shall provide a written disposition of the grievance, including the reasons therefore, to all parties of interest within two (2) days of such meeting.
10.3.1.2 If the grievant and/or Association is not satisfied with the disposition of the grievance, or if no disposition has occurred within two (2) days of such meeting or five (5) days from the date of presentation of grievance, the grievance may be appealed to Level II, with a copy simultaneously provided to the Association.
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10.3.2 Level II Superintendent
10.3.2.1 The Superintendent or her/his designee shall meet with the grievant and/or designated Association representative within seven (7) days of receipt of the grievance appeal and shall provide written disposition of the grievance, including reasons therefore, to all parties of interest within three (3) days of such meeting.
10.3.2.2 If the grievant and/or Association is not satisfied with the disposition of the grievance or if no disposition has occurred within five (5) days of such meeting or eight (8) days from the date of receipt of the grievance at Level II, the grievant may request the Association to submit the grievance to arbitration.
NOTE: The parties may negotiate a mediation step in the procedure (option). Most contracts do not contain this step, but those using this step often find it helpful. 10.3.3 Level III Mediation
10.3.3.1 If the grievant and/or Association is not satisfied with the disposition of the grievance, or if no disposition has occurred pursuant to the provisions of Level II, the grievance shall be referred to grievance mediation.
10.3.3.2 The Association shall request that a conciliator/mediator from the California State Mediation Conciliation Service, or from any other mutually agreeable recognized dispute resolution center, be assigned to assist the parties in the resolution of the grievance. 10.3.3.3 The mediator, within ten (10) days of the request shall meet with the grievant, the Association and the District for the purpose of resolving the grievance.
10.3.3.4 If an agreement is reached, the agreement shall be reduced to writing and shall be signed by the grievant, the Association and the District. This agreement shall be non-precedential and shall constitute a settlement of the grievance.
10.3.3.5 In the event that the grievant, the Association and the Superintendent or her/his designee have not resolved the grievance with the assistance of the conciliator/mediator within ten (10) days from the first meeting held by the conciliator/mediator, the Association may terminate Level III and the grievance may proceed to Level IV.
10.4 Level III IV Binding Arbitration
10.4.4.1 If the Association proceeds to arbitration, it shall notify the District in writing. Within ten (10) days of such notification, representatives of the District and Association shall attempt to agree upon a mutually acceptable arbitrator and obtain a commitment from said arbitrator to serve. If the parties are unable to agree upon an arbitrator within the specified period, the Association will file a Demand to Arbitrate with the American Arbitration Association (AAA) and select an arbitrator who will establish arbitration proceedings per the AAA Voluntary Labor Arbitration rules.
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10.4.4.2 The arbitrator’s decision shall be in writing and shall set forth the findings of fact, reasoning, and conclusions of the issues submitted. The arbitrator shall be without power or authority to make any decision which requires the commission of an act prohibited by law or which violates the terms of this Agreement. It is agreed, however, that the arbitrator is empowered to include n any award such financial reimbursement or other remedies as she/he judges to be proper. The arbitrator’s decision will be submitted to the Association and the Superintendent and will be final and binding upon both parties. If any question arises as to the arbitrability of the grievance, such question will be ruled upon by the arbitrator only after he/she has had an opportunity to hear the merits of the grievance.
10.4.4.3 All costs for the services of the arbitrator, including but not limited to, per diem expenses, travel and subsistence expenses and the cost of any hearing room, will be borne equally by the District and the Association. All other costs, except for released time for the grievant(s), Association representative(s) and witnesses, will be borne by the party incurring them.
10.5 Time Limits
10.5.1 Time limits provided for at each level shall begin the day following receipt of the grievance appeal or written decision.
10.5.2 Since it is important that grievance be processed as rapidly as possible, the time limits specified at each level should be considered the maximum and every effort should be made to expedite the process. The time limits may, however, be extended in writing by mutual agreement.
10.5.3 In the event a grievance is filed at such time that it cannot be processed through all the steps by the end of the school year, and if left unresolved harms a grievant, the time limits set fort herein will be reduced so that the procedure may be exhausted prior to the end of the school year or as soon as is practicable.
10.5.4 Grievances related to safety shall commence with the Superintendent Level.
10.6 Rights of Representation
10.6.1 A grievant may be represented at all stages of the grievance by a(n) Association representative(s).
10.7 No Reprisals
10.7.1 No reprisals of any kind shall be taken by the District or by any member or representative of the administration or the Board against any grievant, any party in interest, any bargaining unit member, the Association, or any other participant in the grievance procedure by reason of such participation.
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10.8. Miscellaneous
10.8.1 The Association, either in its own behalf or in behalf of more than one (1) affected member, may initiate a grievance at Level II.
10.8.2 If a grievance arises from action or inaction of the District at a level above the principal or immediate supervisor, the grievant shall submit such grievance in writing directly to the Superintendent and the Association with the processing of such grievance to commence at Level II.
10.8.3 When it is necessary for a representative designated by the Association to investigate a grievance or attend a grievance meeting or hearing during the day, she/he shall be released without loss of pay in order to permit participation in the foregoing activities. Any unit member who is requested to appear in such investigations, meetings, or hearings as a witness will be accorded the same right.
10.8.4 All documents, communications and records dealing with the processing of a grievance shall be filed in a separate grievance file and will be kept in the personnel file of any unit member.
10.8.5 Forms for filing grievances, serving notices, taking appeals, making reports and recommendations, and other necessary documents shall be prepared jointly by the District and Association and give appropriate distribution so as to facilitate operation of the grievance procedure.
10.8.6 Upon mutual agreement of the Association and the District, a grievance may be taken directly to arbitration.
10.8.7 A unit member may at any time present grievance to the employer, and have such grievances adjusted, without intervention of the Association, as long as the adjustment is reached prior to arbitration and such adjustment is not inconsistent with terms of the Agreement. If any employee presents a grievance on his/her own behalf, the Association shall have the right to be present and state its views at all grievance meetings. The District shall not agree to a resolution of the grievance until the Association has received a copy of the grievance and the proposed resolution and has been given the opportunity to file a response.
10.9 Expedited Arbitration
10.9.1 At the option of the Association, the arbitration may be held under the Expedited Rules of American Arbitration Association. Notice of such option shall accompany the Demand for Arbitration.
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** CTA Staff needs to be involved ** GRIEVANCE MEDIATION
The California State Mediation and Conciliation Service provides assistance using mediation to resolve employee grievances (and in bargaining impasses). Here is their list of low-cost services they provide:
Grievance mediation is quick and inexpensive. (Most arbitrations cost +$2000 and run approximately seven months between the request for a panel and the award.) Preparation and presentation time for all concerned is substantially reduced. No pre- or post-hearing briefs are required and there are no court reporters/recorders, transcripts or lengthy written awards.
Creative remedies can be fashioned that would be unlikely to result from arbitration. Such remedies can provide creative solutions that satisfy the grievance’s need for recognition, do not otherwise violate the Agreement, and settle the grievance.
Mediation provides a framework for resolving grievances in which the parties do not become polarized. The presence of a state mediator helps the employer and the union search for a mutually acceptable solution, and provides reassurance to the grievant that his/her issue is taken seriously and dealt with fairly. If the parties reach an agreement through this process, the grievant should sign the agreement to indicate acceptance. This takes care of any concerns of “duty of fair representation”.
Should the grievance mediation process fail to produce a solution agreement, the last resort of the grievance mediator is to provide the parties with a private, informal, non- binding assessment of how most arbitrators would decide the case. Some parties will want to continue with their desire to have their grievance heard before an arbitrator; however, this assessment frequently will induce a settlement of the grievance.
It is easy to see how grievance mediation helps assure that only quality cases reach the arbitration level. Yet, any agreement reached in mediation is far better than an award that is imposed by a third-party. The grievant and the employer also may agree that the settlement is non-precedent setting. This relieves the parties of political pressure on any similar situation in the future.
Interested parties can contact SMCS at the following offices:
Southern CA (Los Angeles) 510-873-6465 Central CA 510-873-6465 Northern CA 1515 Clay Street, Ste. 2206, Oakland, CA 94612 510-873-6465
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TAB 5 THE PROCESS
Get the Facts:
When a unit member comes to you with an alleged grievance, take time to get the facts. If there is not adequate time at that instant, schedule a time and place that will permit confidentiality and a thorough review. A member will not usually lie to you, although it has and will happen. Human nature will cause their story to be slanted. Therefore, do not be surprised if “Management” has a different perception of what happened. It is O. K. to investigate the situation by making inquiries of other unit members to check the accuracy of the complaint.
Get It in Writing:
It is always helpful to have the Grievant write down his/her interpretation of what has happened. Have the grievant formulate what he/she wants as a resolution. In any case, the Association Rep should take notes at the meeting or immediately following for later reference. This will provide background information in case the Association Rep should need assistance of the Association Grievance Representative or Primary Contact Staff. Facts win arbitrations, not emotions.
Let the Process Work:
Don’t be the judge of a grievance yourself. Let the process prove the merits of the grievance. That is what an arbitrator is paid to do. Your job is to represent the interest of the aggrieved. You may give the member your opinion about the grievance. Should it be handled through the grievance procedure or as a complaint? Use persuasion. Give the member the benefit of the doubt.
Complaint Evaluation:
The Association must investigate every complaint, obtain the information needed and make a determination of the most advantageous course to pursue to resolve the grievance. The initial fact-finding phase is conducted by answering the following six questions:
WHO are the persons involved? are the witnesses? Is the administrator in charge? Can resolve the grievance? will stand behind the claim?
WHAT is the real or imagined complaint? Is asserted to have been done or not done? Rule, regulation, or policy has been violated? Are the areas of the Contract that might apply?
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WHEN did the incident occur? (Is it within the time limits of the grievance procedure?)
WHERE is the violation alleged to have occurred? Is the appropriate level to enter the grievance?
WHY did it occur? (Is it a result of misunderstanding?) is such an incident grievable under the terms of the contract, board policy or administrative directive?
HOW is the Association affected? (Does it have a position regarding the provision violated?) has the member been affected? Have such matters been resolved in the past? Should this matter be processed?
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INTERVIEWING THE GRIEVANT
Good interviewing is an art. It cannot be learned simply by reading a book or manual. Practice and self-awareness are all important. However, here are a few suggestions:
Don’t be hurried. Be relaxed, at ease. Do your swearing afterwards.
Show you understand. Look people in the eye. Encourage the member to get out everything – not only the facts, but also the feeling. Often they will feel a lot better after that and start quieting down.
Unless you are very short of time, let the other person have their say completely before you start giving your opinion.
Look through your contract together to see if there truly is a violation, misinterpretation or misapplication of contract language.
Summarize what they have to say. This shows you understand. It also encourages the member to bring out the things they hadn’t mentioned before, but which they think are relevant. After you finish summarizing, ask, “Have I stated your case correctly?”
Use a standard interviewing report form to document the facts as stated. This creates a running record of events as presented and prevents confusion and mental recollection loss of information over time.
This forum of listening requires a great deal of time. In the long run, it saves both time and energy and helps eliminate festering grievances, which sow apathy and anti-association feeling.
Remember, lots of members contact their representative solely because they want a sympathetic ear. Perhaps they know the rep can do little to help in their particular situation, yet they feel better after they have gotten things off their chest.
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GRIEVANCE GUIDE Grievance Processing for Building Grievance Representatives
1. Listen carefully to the bargaining unit member as he/she explains the problem. Get the Who, What, When, Where and How.
2. Complete a Data Sheet to record the basic information needed. State the general nature of the problem and important details. Get names, dates, places, times, numbers.
3. Examine the contract, board policy, administrative regulations, relevant sections of the Education Code and past practice. Record on the data sheet, the article(s), section(s), and/or numbers which may have been violated, misinterpreted or misapplied.
4. Tell the bargaining unit member:
a. The Association is concerned about the problem. b. The Association will give it very careful consideration. c. The Association will do what it can to help and it can help if there are facts and/or arguments to sustain a case. d. You will contract the grievance committee and get back to the member. e. To save or locate all letters, memoranda, notes or documents relating to the problem.
5. Don’t tell the member:
a. Any evaluative or judgmental remarks about the member’s conduct. b. It’s a good case or a weak case. c. That you can deliver a quick, easy solution. d. That he/she doesn’t have a problem or grievance. e. That there’s nothing you can do to help.
6. Start a folder under the member’s name with data sheet and documents.
7. Contact Grievance Committee member______at school phone ______or home phone ______.
8. Discuss with the grievance committee member the facts and some possible arguments and positions the Association might use.
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SUGGESTIONS ON TAKING NOTES
Be Brief . Get main ideas – use only key words. . Abbreviate when possible i.e. J.D. = John Doe; P = principal; w/o = without; 11/7/09 = November 7, 2009. . Be sure you have correct meaning.
Be Accurate . Get names correctly. . Write full statements, if you feel it is very important. . Use quotation marks around direct impact statements. . Get dates, times, and places accurately. . If substitute words, be sure meaning is the same. (If in doubt, don’t substitute.) . Go over notes soon after conference with teacher; add words to clarify meaning, if needed.
Organize . Use prepared Grievance Meeting Report form. It will organize the meeting for you. . Include observations of reactions in the comments sections e.g. appeared friendly, very angry, embarrassed, lost temper, etc. . Keep notes in notebook or file folder, to be used in the grievance chain by the Association, or filed with the Association.
Discussion Your notes may make the difference between winning or losing an arbitration or unfair practice charge. These notes will be useful tools to the Grievance Committee and CTA legal counsel in preparation of cases which are not settled, or may, in fact, lead to a settlement.
Your Notes Should Seek To: 1. Narrow factual disputes. 2. Find out the employer’s position. 3. Make any requests for information. 4. Record any admissions against interest by the employer. 5. Keep an accurate record for the Association for future reference.
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SOURCES OF INFORMATION
1. People who can supply information:
. The teacher who has the grievance.
. His/her fellow teachers and employees.
. Other witnesses to the grievance.
. Fellow grievance reps and Association officers; they can supply ideas about similar grievances in the past.
. Principal or other supervisors; it is usually best to speak to the administration about a grievance before you actually fight the case. Get the administration’s views so that you will have a better ides of their reasoning. You also can get a clearer idea of the facts after hearing them from both the teacher and the administration.
2. Administrative records:
. Personal records.
. Time and attendance records.
. Medical records.
. Policies, procedures, rules and regulations.
. Personnel action forms.
. Written memoranda or letters.
3. Association records:
. Contract of policy.
. Past grievance file.
. Arbitration awards.
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GRIEVANT INTERVIEW FORM
Date:______
Grievant's Name:______
Position:______Site:______
Work Phone:______Home phone:______
I. WHAT is the Complaint?______
______
II. WHO is involved?______
Administrator?______
Witnesses?______
III.WHERE did the incident occur?______
IV. WHICH provisions are impacted? (Cite specific contract Articles and sections.)
______
V. HOW has the employee been affected?______
______
VI. WHAT remedy does the employee seek?______
______
VII.DOES the employee want to grieve? Yes or No? At what level should the grievance be filed? I II III IV Are we within the grievance timelines? Yes or No? What is the last day that we can file the grievance?______
Comments:______
______
Name of Interviewer:______
Work phone:______Home phone:______
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WRITING IT UP
The easiest to explain but most difficult to accomplish is the actual writing up of a grievance. It is the bugaboo of many local Associations and its leadership.
There are two basic rules of thumb in writing up a grievance.
K.I.S.S. Method
The secret is to “keep it simple and short”. Briefly state what has transpired.
Statement of Occurrence: The District violated Article XII, Safety, and Article III, Non-discrimination when the immediate supervisor failed to replace the light in the women’s restroom.
Remedy Requested: Adherence to the contract. Replace the bulb.
It is not necessary to write a ten (10) page dissertation on the subject. The relevant facts can be brought out at the informal or formal level.
DO assert violations of every Article and/or Section that have been even the remotest relevancy.
YOU CAN”T LOSE A GRIEVANCE AT LEVEL I.
You may not win or you may be persuaded that it has no merit, but you can always appeal the immediate supervisor’s decision.
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(Name of Association)
GRIEVANCE FORM
Grievance #______
Date:______
Name of Employee:______
Work Site:______Work phone:______Immediate Supervisor:______
Level 1 State specific contract Article and section(s) violated, misapplied or misinterpreted:______
Statement of Grievance--specifically how the contract was violated, misinterpreted or misapplied:______
Remedy Requested (must be specific):______
Signature:______Date:______Grievant shall make and retain a copy and present this completed form to his/her supervisor.
Immediate Supervisor’s Response:______Signature______Date:______Immediate supervisor return original completed form to Grievant
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GUIDELINES FOR AN ADMINISTRATIVE MEETING
1. Be cordial, business as usual, and don’t feel out of place. You have an official role. You should expect everything to be conducted in a professional manner. Don’t get emotional.
2. Do advise the administrator that you are there to assist in clarifying the issues with the purpose of seeking a resolution of the situation at this level of the grievance.
3. Sit next to the unit member or at an angle next to the unit member which will enable you to observe both the administrator(s) and the unit member, but where the dialogue with the unit member is also to you. Be within touching distance of the unit member.
4. Listen carefully, using a great deal of eye contact – make your presence felt.
5. Take notes, but not too copiously; get a feeling of what is happening. Place on the record direct factual statements or accusation. Don’t write too much of the unit member’s response. The unit member doesn’t have to respond to anything and probably shouldn’t. You both should only be asking questions and seeking clarifications. Make note of the time, place, those present and their titles, and when the meeting ends.
6. Ask for copies of documentation shown or referenced.
7. Normally at this first meeting, the representative does not need to present a defense. Dialogue should be limited to questions and paraphrases. The representative may need to nudge the unit member or state to the administrator, “We will have to take it under advisement,” or “Give us time to think about it.” or “We will get back to you on this issue.” Nudging the unit member is primarily to have the person keep quiet and not make a direct response. The only direct response should be denial, “No, that is not true.”
8. Don’t be defensive. The objective is to find out as much as possible about the situation and what the intent of the administrator is at the time and whether the issue can be settled.
9. Silence is golden. Don’t feel pressured to respond or to say something when there is a void in the conversation or when you’ve been asked a question and don’t know how to respond. You can always say you need to think about it longer, seek advice or ask, “What is the reason for the question?”
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PRESENTING THE GRIEVANCE
MAINTAIN A UNITED POSITION: Don’t go it alone, Take the grievant along with you. It is his/her grievance, not yours. It prevents mistrust and established confidence in the Association Representative. It prevents getting caught “holding the bag”.
KNOW YOUR FACTS – BE CONFIDENT: Don’t try to outsmart the immediate supervisor and don’t anticipate being outsmarted or outwitted. Don’t carry a chip on your shoulder. Know your contract, the rights under it and stick to them. State the facts plainly. Avoid opinions or hearsay evidence. Grievances are lost without facts to support it. Rarely does the actual presentation of the grievance win. IT TAKES FACTS.
STICK TO THE POINT – BE BUSINESSLIKE: As discussion progresses on a grievance, the immediate supervisor may try to side track the real issue and lead you into a discussion of irrelevant issues, or inject additional complaints against the unit member. Insist on discussing the issue raised by the grievance only…nothing else.
SETTLE THE GRIEVANCE AT THE FIRST STEP: It is most desirable to have the grievance settled at the first step. This prevents the bogging down of grievance machinery. The grievance committee may then devote more time and effort to problems of general concern to all the members. Listen to what the administration is saying and offering. Do not talk your way out of a good settlement. Do not try to prove your case once it is won.
TAKE A POSITION – DON’T BE DEFENSIVE: Don’t be timid or convey the feeling to the immediate supervisor that you are presenting the grievance solely because it is an obligation on your part. Avoid being apologetic. Impress on the supervisor that the grievance has merit and should receive equable treatment. You have the right to be there. The law and custom place you at an equal footing with the supervisor.
BURDEN OF PROOF IS ON IMMEDIATE SUPERVISOR: Let the immediate supervisor try to justify and prove that the action they have taken is correct. You don’t have to try to show the supervisor where he/she is wrong. Let the supervisor, instead, carry the burden of showing why they are right. Try not to place the immediate supervisor in a position whereby he/she can’t retreat without a great deal of embarrassment. If possible, leave the door open for an easy way out. Permit him/her to save face. Let the immediate supervisor do most of the talking. A good rule of thumb is that he/she does 75% of the talking and you 25%. Don’t respond immediately to every statement. If you have doubts on how to continue, call a caucus and talk it over with the Grievant.
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GRIEVANCE MEETING REPORT FORM
Date:______Grievance Number:______
Time: Start______Purpose of Meeting (check one):
End______Step 1 – informal
Place:______Step 2 – Supervisor meeting
Present:______Step 3 – Superintendent
______Other (explain)
______
______
Speaker Statements Your Comment
______
______
______
______
______
______
Attach more pages, if needed. Keep your notes. Go over the notes with the unit member(s) as soon as possible for accuracy. All meetings are confidential and under no conditions are these notes to be shared with the employer.
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MANAGING GRIEVANCES
There are several important aspects of grievance management. The Association must always be aware of its duty of fair representation with regard to grievances and contract enforcement. The Association must also constantly be in touch with the sites to surface grievances. Here are some things to keep in mind as you monitor the grievances in your chapter:
Establish a numbering system for all grievances. Make sure that all grievances contain the appropriate dates, contract article(s) and site code e.g. 2009-01 Establish a central location for the filing and maintenance of all grievance documents. Don’t allow grievances to be floating around the District without the Association’s knowledge. Keep a large supply of blank grievance forms and make them available to the members. Be sure that the Grievance Committee monitors all active grievances for timelines. Decide who will be ultimately responsible for the managing of the paperwork. (Office secretary, Grievance chair.) Publish the outcomes of grievances filed in your chapter newsletter. Maintain confidentiality, but let the members know that the Association is actively enforcing the Contract.
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Grievance Timetable Date:______Grievance #______
Grievant’s Name______Site______
Phone numbers (H)______(W)______(C)______
Date Filed______Issue______
Informal Level Date:______Results:______
Level I Date of Occurrence/Act of Omission:______Date Filed:______Date Response Due:______Date Given:______
Level II Appeal Due:______Date Filed:______Date Response Due:______Date Given:______
Level III Appeal Due:______Date Filed:______Date Response Due:______Date Given:______
Arbitration Date Request Due Assn:______Date Given:______Date Decision Due:______Date Given:______Date Demand Should be Made to District______Date Made:______Date of Arbitration______
General Comments:______
______
______
______
______
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THE DECISION TO ARBITRATE: THE GRIEVABILITY OF CONTRACT LANGUAGE
DETERMINING THE APPROPRIATENESS FOR ARBITRATION
1. Scope: Is the grievance within scope of the Collective Bargaining Agreement? 2. Timeliness: Is it timely (within the timelines of the grievance procedure)? 3. Validity: How valid is the position? Does the Association have credible evidence and arguments to support our position? 4. Appropriateness: Is the matter more appropriate for negotiations? 5. Effect: What is the effect of a win? Loss? 6. DFR: Is there a possible claim of breach of fair representation? 7. Feasibility: What feasible settlement is possible? 8. Justification: Can the case be justified for organizational, morale, or public relation reasons? 9. Cost: Is the cost of the arbitration worth the economic and political gains sought?
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CRITERIA OF GRIEVANCES FOR APPEAL TO ARBITRATION
The following is the objective criteria to be used when determining the suitability of grievances for appeal to arbitration. No grievant will be discriminated against by virtue of membership (or lack of it), gender, sexual preference, age, ethnicity, or positions within district employment. Individual cases will be evaluated in good faith according to rational and objective criteria.
Does the: Grievance connote a violation, misinterpret, misapply a contract provision?
Grievance connote a violation of past practice, health or safety (working conditions)?
Grievance fall within the definition in the contract and is within timelines?
Grievance have serious implications for other members?
Grievance have documents i.e. credible evidence and arguments; records available or witnesses that can testify to establish intent of contract on past practice dispute?
Grievance have political or economic gains worth the cost?
Chapter have the resources i.e. chapter financial resources available to pay for its share of the arbitration; staff available for arbitration?
Is the: Grievance precedential?
Grievance considered potentially successful in arbitration?
Internal political considerations overriding for arbitration?
Remedy obtainable and worth the time, effort, and money?
Are: There procedural defects?
Will the: Grievance change future behavior of the employer?
Grievance resolve problems or stimulate more grievances?
Grievance provide Duty of Fair Representation?
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Has: A similar grievance been resolved and (may have) set precedent?
After a grievance has been processed through all the preliminary steps, a deliberate decision must be made on whether to arbitrate. This decision is the Association’s, who must consider many factors. The Association’s Executive Body is in the best position to balance and weigh all the factors of the grievance in its context of the overall Association program. The Grievance Committee should help the Executive Body understand the factors relating exclusively to the grievance and the contract, and can provide essential input for the decision- making process. In those cases where a decision is made not to go to arbitration, the unit member, upon request, shall be given a written statement of the reasoning which led to the decision.
A circumstance may arise where the claim of one member may oppose the job standing or right of another member. This is not justification for non- involvement by the Association. The Association can base its decision on proper interpretation and enforcement of the contract and afford the adversely affected member due process.
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TAB 6 ALTERNATIVES TO GRIEVANCE LOCAL Formal Complaint Organizing
STATE Education Code Fair Employment & Housing Act Equal Pay Act Family Rights Act Labor Code
FEDERAL Family Medical Leave Act Americans with Disabilities Act Title VII of the 1964 Civil Rights Act COBRA Regulations
DISCRIMINATION or HARASSMENT can be based on: Race Age (over 40) Ancestry/National Origin Religion Gender Disability Marital Status Sexual Orientation Medical Condition
CONTACT for the ENFORCEMENT: CA Dept. of Fair Employment & Housing CA Dept. of Industrial Relations Cal/OSHA CA Employment Development Department CA Labor Commissioner US Equal Employment Opportunity Commission US Dept. of Labor
LOOK for ADDITIONAL PROTECTIONS in the Following Areas: State/Healthy workplace Threats, violence & vandalism Sexual harassment Participation in political activities Voluntary participation in drug rehabilitation Complaints about safety/health concerns Refusal to perform dangerous work
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TAB 7 GLOSSARY OF TERMS
This is a handy reference glossary with definitions of terms frequently used in employer –employee relations. It is by no means an exhaustive list of these terms, but it will serve as a guide in the understanding of some of the basic concepts of collective bargaining.
Agency: A political jurisdiction or the controlling body thereof.
Agency shop: A provision in a collective bargaining agreement requiring employees covered by such agreement who refuse to join the organization to pay a service fee to the organization. This provision is intended to compensate the organization which, by law, must give full and equal protection to all members of the bargaining unit it represents, regardless of membership status. See Fair Share Agreement.
Arbitration: A dispute settlement procedure whereby parties involved submit their differences to a third party for a final and binding decision. The costs are usually equally shared by the parties.
Arbitration, Compulsory: Arbitration compelled by order of a judicial body, law, or outside agency or, in rare instances, agreed to by prior agreement of the parties in a labor-management dispute.
Arbitration, Interest : See Impasse. (Negotiation Impasse)
Arbitration, Rights (Grievance): See Grievance.
Authorization Card: A card signed by an employee authorizing the soliciting organization to be his/her collective bargaining agent.
Back pay: Wages required to be paid to employees who have been discharged in violation of a legal right, either one based on a law or acquired by contract.
Bargaining agent: The organization legally recognized or certified to represent employees in a bargaining unit. Its’ rights and obligations are defined by various federal, state and local laws. 1-42
Bargaining unit: The designation, usually by a third party, made after hearing, of what constitutes (who is to be included in) an appropriate group of employees for purposes of conducting a representation election and constructing a basis for a collective bargaining relationship. The listing of positions, job titles or functions that defines the group of employees which an organization seeks to represent.
Bargaining unit election: See Election.
Card check: A check of authorization cards. Such cards, when signed by a majority of employees in a bargaining unit, sometimes result in winning recognition of the organization by the employer without the necessity of an election.
Certification: Official recognition by impartial labor relations board that an employee organization is, and shall remain, the exclusive representative for all of the employees in an appropriate bargaining unit for the purpose of collective bargaining until it is replaced by another employee organization, is decertified, or dissolves.
Closed shop: A collective bargaining provision whereby all employees in a bargaining unit must be association members in good standing before being hired, and new employees are hired through the association. Closed shop has been banned by the Taft-Hartley Act since 1949.
Collective bargaining: The performance of the mutual obligations of the public employer and the exclusive representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written contract embodying any agreements reached, except that by any such obligation neither party shall be compelled to agree to a proposal, or be required to make a concession.
Collective Bargaining Agreement A formal written agreement setting forth all (Contract) agreements reached between an employer or group of employers and one or more organizations or unions representing employees of the employers.
Concerted Activities: Activities undertaken jointly by employees for the purpose of union organization, collective bargaining or other mutual aid or protection.
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Such activities are “protected” under the National Labor Relations Act.
Conciliation: Efforts by a third party toward the accommodation of opposing viewpoints in a labor dispute so as to effect a voluntary settlement. (See mediation).
Confidential Employee: Any employee who is privy to information leading to decisions of agency management affecting employee relations.
Contract bar: A period of time during which an existing agreement between an employer and an association will bar a representation election sought by a union attempting to unseat an incumbent employee representative.
Decertification: Withdrawal from an association of status as exclusive bargaining agent upon vote by the employees in the unit that they no longer wish to be represented by the association.
Exclusive representative: The employee organization that, as a result of certification or recognition, has the right to be the sole collective bargaining agent of all employees in an appropriate bargaining unit without regard to employee organization membership.
Fact-finding: Identification of the major issues in a particular dispute, review of the positions of the parties and resolution of factual differences by one or more impartial fact-finders, and the making or recommendations for settlement of the dispute.
Free rider/free loader: The union term for an employee who fails to join the association that has negotiated a contract governing his/her wages ad working conditions and is legally bound to protect his/her interests in the work place.
Fringe benefits: Terms used to encompass items such as vacations, holidays, insurance, medical benefits, pensions, leaves and other similar benefits that are given to an employee under his/her employment or union contract in addition to direct wages.
Good faith bargaining: The type of bargaining an employer and a majority union must engage in to meet their bargaining obligation. The parties are required to meet at reasonable times and to bargain in good
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faith with respect to matters within the scope of bargaining. Neither party is required to agree to a proposal or to make a concession.
Grievance: An employee complaint: an allegation that a contract has been violated, misinterpreted or misapplied.
Impasse: Failure of a public employer and an exclusive representative to achieve agreement in the course of negotiations.
Injunction: Mandatory order by a court of perform or cease a specified activity usually on the grounds that otherwise the complaining party will suffer irreparable injury from unlawful action of the other party; a restraining order, issued for a temporary period without a preliminary hearing on the premise that otherwise irreparable damages will ensue.
Leave of absence: Under contract conditions, time off without loss of seniority, and with the right to reinstatement, which permits an employee to engage in association business on a full or part-time basis without being paid by the employer.
Leave without pay: A temporary non-pay status and absence from duty, granted upon the employee’s request. The permissive nature of leave without pay distinguishes it from absence without leave, which is non-pay status resulting from an agency determination that it will not grant any type of leave including leave without pay for a period of absence authorization or for which his/her request for leave on the basis of alleged sickness was denied.
Local: Group of organized employees holding a charter from a national or state association. A local is usually confined to association members in one district or one small locality.
Lockout: Closing down of a business as a form of economic pressure upon employees to enforce acceptance of employer’s terms.
Maintenance of membership: Organizational security provision in collective bargaining agreement under which employees who are members of a an association on a specified date, or thereafter become members, are required to remain members in good standing
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during the term of the contract as a condition of employment.
Management prerogative: From management’s viewpoint, the right to manage; the right of management to make certain decisions and take certain actions without notification to, consultation with, or negotiation with the association. Such prerogatives, when spelled out in the contract, are often a source of controversy.
Management rights clause: Collective bargaining contract clause that expressly reserves to management certain rights and specifies that the exercise of those rights shall not be subject to the grievance procedure or arbitration; implementation of management prerogatives.
Master agreement: A comprehensive collective bargaining agreement between the school district and the local association which covers matters within the scope of representation of the Educational Employment Relations Act (EERA).
Mediation: Third party, non-binding, usually non-compulsory intervention and assistance by a neutral party to facilitate a reconciliation of a dispute between employers and employees.
Negotiating team: Team of an association or an employer selected to negotiate a collective bargaining agreement.
Petition for representation A document filed with an appropriate body election: stating that an organization has demonstrated satisfactory showing of interest to meet the requirements for an election (usually 30% of the employees in the unit).
Public Employment Relations A quasi-judicial agency set up under the state Board: labor relations acts (EERA) whose duty it is to issue and adjudicate complaints alleging unfair labor practices; to require such practice to be stopped; to resolve disputes about unit determination; and to certify bargaining agents for employees in dealing with employers.
Recognition: An agreement by an employer to accept and treat an employee organization as the collective bargaining agent for designated employees (unit). See Certification.
Reopener: A provision calling for reopening of a current contract at a specified time for negotiations on
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stated subjects, such as wage increase, pension, health and welfare benefits, etc.
Representation election: A vote conducted by appropriate agencies to determine whether a majority of the workers in a unit want to be represented by a given organization.
Rights arbitration: Commonly called grievance arbitration; use of arbitration to resolve rights disputes – grievance.
Scab: A regular worker in a struck school who continues on the job during a strike. See Strikebreaker.
Scope of bargaining: The universe of issues permitted or included in collective bargaining negotiations.
Service for fee: An assessment of all employees in an appropriate bargaining unit to defray the cost for services rendered by the exclusive in negotiations and contract administration. See Agency Shop.
Showing of interest: Amount of support an organization must show among employees in a bargaining unit before an Employee Relations Board will process association’s election petition. Board typically requires an association that is seeking a representation election to make a showing of interest among 30% of the employees in the bargaining unit.
Strike: An employee’s refusal, in concerted action with others, to report for duty, or his/her willful absence from his/her position, of his/her stoppage of work, or his/her abstinence in whole or in part from the full, faithful and proper performance of the duties of employment, for the purpose of inducing, influencing, or coercing a change in the conditions, compensation, rights, privileges or obligations of employment, or for the purpose of obtaining recognition as collective bargaining agent, or to bring attention to the failure to settle a grievance.
Strikebreaker: A person whose trade is to accept employment in place of a striker, or to organize a back-to- work movement in order to pressure strikers to give up the strike and return to work on the employer’s terms. See Scab.
Supervisory employee: An employee having substantial responsibility on behalf of management regularly to participate in the performance of all or most of the following
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functions: employ, promote, transfer, suspend, discharge, or adjudicate grievance of other employees. If in connection with the foregoing, the exercise of such responsibility is not of a merely routine nature, but requires the exercise of independent judgment.
Unfair practices: An employer or organization practice forbidden by law. This usually involves management efforts to avoid collective bargaining.
Union security: Negotiated contract clauses requiring the establishing and continuance of a union shop, maintenance of membership, agency shop, payroll deduction of union dues, or similar provision that guarantees the existence of the union’s status during the life of a collective bargaining agreement.
Union shop: A contract clause that requires all union members of a bargaining unit to remain members in good standing as a condition of employment, and further requires new employees to become members after a stated period, usually 60 to 90 days after being hired, and to remain in good standing for the duration of the collective bargaining agreement.
Unit: Shortened term for unit appropriate for collective bargaining. It consists of all employees entitled to select a single agent to represent them in bargaining collectively.
Zipper clause: A contract provision precluding further bargaining during the life of the agreement.
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Section 10-A
RULES FOR IMPLEMENTATION OF AN ARBITRATION PARTICIPATION FUND (CTA State Council Policy Adopted May 1987 as Amended June 1988, July 1993, May 2000, April 2002, June 2003 and July 2008)
1. Contract. In order to participate, a chapter must have a provision within its contract for binding arbitration of grievances by an outside neutral party.
2. Chapter Contributions. The chapter must have a local dues level of at least thirty percent (30%) of CTA dues rounded down to the nearest $5. This dues level applies to the fiscal year prior to the year in which the application is received. Under special circumstances the CTA board of directors may waive this requirement. (The local dues level for 2012-2013 is $150; for 2013-2014 the dues level remains $150; for 2014-2015 it will increase to $155).
3. Chapter Bylaws. The chapter’s bylaws must contain an appropriate mechanism for making the decision on whether or not to process a grievance to arbitration. The chapter must also identify grievance representatives and require that they be trained annually in a CTA/NEA training program.
4. Staff Involvement. CTA designated regional UniServ staff should be provided a copy of the written grievance at the first level at which the grievance is placed in writing. RUS must be consulted in the processing of the grievance and should be consulted regarding the decision to proceed to arbitration. Any decision to use a representative other than CTA staff in presenting a grievance to an arbitrator must be approved in advance by a CTA Regional Manager.
5. CTA’s Financial Contribution. Other than the cost of its staff, CTA’s contribution shall be limited to 50 percent of the chapter’s share of the arbitrator’s fees and the cost of the transcript; but in no case, shall CTA contribute more than $2000 per arbitration. Under extraordinary circumstances, due to a lengthy hearing of a complex grievance, the CTA Board of Directors may authorize up to an additional $1,500 toward the payment of 50 percent of the chapter’s cost of the arbitrator and transcripts.
If multiple, non-class action grievances are consolidated into a single hearing, the Crisis Assistance Panel is authorized to recommend to the CTA board of directors that up to $2,000 per individual grievance contained in the consolidated grievance be approved. This additional funding toward the payment of the chapter’s cost of the arbitrator and transcripts is designed to enhance, not diminish, CTA’s contribution to the chapter.
This policy does not apply to a grievance procedure which contains a “loser” pay provision, unless the CTA Regional Manager has specifically given his/her prior approval to participate in the sharing of the cost of such a provision, and the CTA Regional Manager is provided the opportunity to enter his/her judgment of the merits of the case before it goes to arbitration, at which time s/he can decline any further fiscal participation in the process of the grievance.
6. The CTA Board of Directors may periodically review these decisions.
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7. CTA Payment
a. A payment of one-third (1/3) of CTA’s financial contribution, described in E. above, shall be made by CTA following submission of receipts by the chapter and the approval of the Regional Manager.
1. At the end of the CTA fiscal year, all claims shall be totaled and compared with the amount in the Arbitration Fund established by the CTA budget. If the total is less than is in the Arbitration Fund, then the claims shall be paid in accordance with the provisions of E. above. If the total is greater than the amount in the Arbitration Fund, then each claim shall be reduced proportionately so that the total paid by CTA does not exceed the amount in the Arbitration Fund.
Section 10-B
Procedural Guidelines for Arbitration Participation Fund (Amended December, 1988 & December 1990)
1. Chapter consults with PCS regarding grievance and procedures for determining whether to proceed to arbitration.
2. Chapter with assistance from PCS informs CTA Regional Manger’s office of chapter determination to go to arbitration and applies for reimbursement under the Arbitration Participation Fund, submitting the approved CAP application form and funding worksheet.
3. CTA Regional Manager reviews application including chapter eligibility under relevant CAP policies, and makes recommendation to CAP.
a. Local dues include any UniServ, Coordinating Council or Service Center Council dues which are collected by the local chapter.
b. For the purpose of implementing the dues provision CTA dues (rounded down to the nearest $5), include ABC/PAC dues but may exclude dues dedicated to special funds, for the fiscal year to the year in which the application is received.
c. Grievances which will qualify under this new policy are those filed on or after September 1, 1998.
4. CAP reviews application and accompanying recommendation(s) and decides on yes/no approval.
5. CAP informs chapter of decision, and explains procedures for final determination of amount(s) of assistance based on total annual use of fund.
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CTA/NEA GROUP LEGAL SERVICES (GLS)
GLS is available “only” to CTA members. Agency fee payers do not have access to GLS attorneys. Members get legal consultation from an attorney on the following: o Work-related issues o Non-work related issues o Temporary teacher dismissal o Probationary non-reelection o Dismissal of permanent employees o Denial of STRS disability allowance o Credential review o Layoff o Employment-related criminal matters
Please note that ALL GLS APPOINTMENTS FOR EMPLOYMENT-RELATED ISSUES MUST BE AUTHORIZED BY CTA STAFF PERSON ASSIGNED TO YOUR CHAPTER.
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CTA GROUP LEGAL SERVICES PROGRAM SUMMARY OF GUIDELINES FOR MEMBERS Summary of provisions for employment-related legal services for CTA members. A. Advice and Consultation An individual member may be referred by a staff representative to an attorney for advice and consultation regarding covered employment- related matters. CTA will pay for the specified number of hours of legal advice for designated matters: o General employment one hour o Temporary teacher dismissal two hours o Probationary non-reelection three hours o Child abuse/child abuse reporting three hours
B. Legal Representation CTA will provide representation by an attorney in certain administrative and court proceedings as set forth below. CTA will pay up to a fixed amount for attorney fees and costs: o Permanent Teacher for-cause dismissal/suspension Commission on Professional Competency Hearing: Appeal to superior court if CPC decides that the member shall not be dismissed: o RIF Dismissals (Layoff) CTA will pay first $5000 CTA and local chapter will each pay 50% of amount over $5000 o Credential Review Informal review: o Employment-related Criminal Matters Cvg. for eligible cases o STRS Disability Allowance Appeal
C. Discretionary Funding In precedential or especially significant cases not covered above, CTA chief counsel may authorize discretionary funding and representation. The member is responsible for paying all fees and costs not specifically authorized.
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D. Participation Requirements CTA membership is a requirement for individual participation in the GLS program. To be eligible for legal services, an individual must be a CTA member at the time the incident giving rise to the need for legal assistance occurred and at the time the request for legal services is made. In addition, membership must be maintained while assistance is provided. Agency fee payers are not eligible for legal services under the GLS program.
Legal services will be provided either by a CTA staff attorney or by a CTA retained attorney assigned by CTA chief counsel. CTA does not direct or control the professional services provided by GLS attorneys to individuals, but it does determine the matters for which funding will be provided and the amount of such funding.
The GLS attorney may require a written professional services agreement with the member before providing services. If such agreement is required, entering into such an agreement is a condition of CTA’s obligation to pay for legal services pursuant to these guidelines.
CTA will pay attorney fees for authorized matters subject to limits on the amount to be paid. The member is responsible for paying all attorney fees and costs beyond the amount authorized for payment by CTA. In employment-related civil cases, the hourly rate to be charged by the GLS attorney shall not exceed the agreed GLS hourly rate. In employment- related criminal cases, the fee to be charged by the GLS attorney for representation beyond that authorized for CTA payment shall be agreed upon between the member and the attorney.
A member shall reimburse CTA for any amounts recovered by award, settlement or insurance in excess of actual financial loss, or in any event, which have been specifically designated as attorney fees and costs.
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