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. 1-1 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. 1-2 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. 1-3 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. 1-4 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. 1-5 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. 1-6 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. 1-7 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.