From the Massachusetts Nurse Newsletter
April 2008 Edition
By Joe Twarog
Associate Director, Labor Education & Training
The grievance and arbitration procedure is the key enforcement mechanism in a labor contract. When violations of the contract occur, the grievance procedure is the primary procedural way to challenge the violation and have it remedied. However, the procedure is a tool and not necessarily a solution. Successful resolution of disputes may and can occur without the grievance process.
Furthermore, many workplace issues are settled either informally or at the first step of the process, especially where there is a mature bargaining relationship and the employer recognizes the union as a fact of life at the workplace.
Most MNA contracts have a grievance article that includes 3 progressive steps followed by arbitration. Timelines are usually indicated throughout the process: for filing at each step; for a hearing; and, for a response from the employer. However, often these timelines are waived for any number of reasons.
Time delays, however, can expand a normally long process into often an interminably lengthy, tedious and drawn out affair that frustrates and angers the grievant and delivers justice so slowly that it seems lost.
In some instances delays cannot be helped due to either the nature of the grievance or the availability of the parties for a meeting. But in many other cases, it is intentional and by design. That is, the employer is more than happy to have the grievance experience be a protracted and painful one in order to send the union and the grievant a message.
The grievance process can be manipulated by the employer into a “paper war” that focuses on frustration rather than on resolution. The grievance process itself is often isolating for the grievant and removed from the daily workings of the unit or floor. Very few people are involved even though a significant amount of time and effort is spent fighting the grievance. However, the union can help shine a light on the grievance and publicize it so that the issue becomes one that the union as a whole fights for and not just the grievant alone. Many grievances involve matters that impact far more than only one individual.
Take the case of a union activist who is targeted by the employer because the employer feels threatened by the union and that person in particular. The activist may be disciplined or even terminated for an alleged “clinical practice” issue. That action has a chilling effect on union activism throughout the bargaining unit, until the case is resolved. Unfortunately, that result could be two years away. In the meantime, management has effectively curtailed the union through intimidation even if the grievance is lost in arbitration many months hence. It is an old tactic that many employers still use. It is considered the price of “doing business” – lose the grievance and pay the penalty, but weaken the union in the process.
The union can challenge this in many ways, while still proceeding with the formal grievance process. Here are some ways. None of these are mutually exclusive and may be pursued at the same time.
- Information requests. The union is entitled to information to investigate and process the grievance. It should be the norm to file a written information request for all relevant material, data and witnesses associated with the case. Bob Schwartz, (a Boston-based attorney who has written extensively on union rights in the workplace) has stated that employers often feel much more pressure from the information request than from the grievance itself. This act in itself may go a long way towards a resolution of the matter.
- Group grievances. There is always safety in numbers and for those workers who are a little reluctant to “rock the boat” on their own, they can find safety and comfort with a group grievance. Such a grievance obviously involves more people and makes it harder for the employer to minimize the contract violation. Simply put; more people are invested in the issue and the outcome.
- Visible and public response. The union can effectively add pressure on management to deal with the grievance by displaying some visible and public message targeting the issue. This outward sign of unity and support can take any number of forms, including: a sticker, ribbon, petition, unity break, or whatever way the members feel comfortable doing. The visibility in itself has multiple positive effects as it: reassures the grievant(s); challenges management to stop any delays and resolve the matter; builds the strength and unity among the membership; etc. Finally, the resolution of the grievance should be included in the unit’s newsletter so that all the members are aware of the matter.
- Action. The members may decide to further increase the pressure by engaging in some form of activity. These also have a wide range- from a “unity break” to an informational picket. These actions serve the purpose again of: exposing the violation and problem; uniting the members; and, of taking control of the process.
- Creativity and confrontation. The activities should be creative, inventive compelling and even fun. They also should engage the members and make the unmistakable point of challenging and confronting management’s contract violation. Organizing around grievances in such a manner empowers the membership, speeds up the process, builds the union, and is one that management has no control over at all. Finally, confrontation can hold individuals responsible for their actions, rather than a faceless institution.
Management may attempt to delay the grievance process procedurally and frustrate all involved, but the union can respond with such a creative campaign. For those employers that choose to undercut and abuse the process, the union must respond forcefully and publicly. Organizing around grievances has innumerable benefits, but most of all it removes the grievance from management’s control and comfort zone where delays and manipulation is often their goal. The union is only as strong as its membership, and involving the membership in the fight to enforce the contract makes the contract all the stronger.
“
