The grievance process is one of the most misunderstood aspects of public-sector union representation.
We spoke with Frank Ricci, retired battalion chief and union president for New Haven Fire Fighters, and lead plaintiff in the Supreme Court case Ricci v. DeStefano to clarify some common misconceptions related to grievances.
What do you think is the biggest misconception about the grievance process?
Most people think the grievance process is employee driven, that the employee gets to decide when to have the union file a grievance. That’s not true. The reality is, the grievance process belongs to the union, not the employee. What I mean by that is an employee has no direct control over what happens once they file a grievance even if the grievance has the employee’s name on it.
Ultimately, the union, after conducting a review or investigation, may choose not to file a grievance for an employee. When the union determines that a grievance is warranted, the union can always decide to drop it, hold it in abeyance, settle it, or proceed through the process. The union has wide latitude to administrate the grievance. The union’s discretion is limited only by case law, statutes, and regulations that make it clear that the union’s decision cannot be arbitrary or capricious, or discriminate against any protected class or because of an employee’s non-union status. The union owns your grievance.
Can you file a grievance about anything?
No, what can be grieved is articulated in the collective bargaining agreement. The scope of grievances is much narrower than most people believe. Employees may think that they can ask the union to file a grievance whenever something “grieves” them about the workplace. You’ll get people who think an annoying coworker can be grieved.
Grievances usually are limited to three situations.
First, the union may file a grievance when the employer violates the written terms of the collective bargaining agreement. This is referred to as “letter of contract.” Second, when the employer violates the just cause standard—the procedures an employer must observe when disciplining or firing an employee—the union can file a grievance. Finally, the union can grieve safety issues—think OSHA violations and other significant unsafe conditions.
However, unions have negotiated for more power, inserting into contracts the ability to grieve a more expansive list, including policies, charter violations, orders, and other workplace issues.
Does the grievance process ever negatively impact employees?
The grievance process can be riddled with strategic moves by the union that may sacrifice some employees’ individual interests for the overall goals of the union. Unions, in some situations, purposely bargain for vague collective bargaining agreements so that they can pick and choose when and what to grieve. The grievance, a lot of times, is utilized by the union to clarify issues that are on the margins or ambiguous in the contract to put themselves into a better position.
Are employers a part of the problem in the grievance process?
Absolutely – they are part of the problem. Especially in disciplinary grievances, management has all the cards. They only build the union’s hand when they fail to follow proper due process. They also know that if they cut a deal with the union and settle an issue, it won’t see the light of day for a long time or sometimes not at all. If people file public records requests to see settlements, by the time they get the documents, the news cycle will have passed. Usually, by the time a reporter gets it, nobody cares about the story.
The question that needs to be asked is why did the union win? How did management fail to follow their own rules?
What can we do to fix the grievance process?
Transparency would go a long way to fix some of these issues. An easy fix would be to make public any agreement between labor and management within 72 hours or to publish it online before the close of business the next day. A small step like this can hold both the employer and the union accountable to employees and the public. Transparency and trust can make all the difference.