grievance handling in human resources management

7/25/2019 Grievance Handling in HUMAN RESOURCES MANAGEMENT

1/35


2/35

Chapter

Administering theEmployment Relationship

11

McGraw-Hill/IrwinAn Introduction to Collective Bargaining & IndustrialRelations, 4e Copyright 2008 The McGraw-Hill Companies, Inc. All rights resere!.


3/35

1 - 3

11 -3

The Grievance Procedure

- The grievance procedure specifies a series of steps to resolve a

workers complaint that management has not followed the

agreement

- Grievances are most often precipitated by the complaint of an

employee against a supervisor- Steps of an employee initiated grievance procedure typically

include:

Step 1 !mployee discusses grievance with the supervisor

Step " Grievance put into writing and parties discuss thegrievance# management puts response in writing

Step $ %f unsuccessful& the grievance is appealed

Step ' (nion decides whether to appeal to arbitration


4/35

1 - 4

11 -4

The Reasons Why Grievances Are

Filed- !mployee discipline is a common source of grievances The employee may feel that he)she did not violate the

contract& or that the discipline is too harsh

- * contract simply cannot specify what is to happenunder all circumstances

(nions and management prefer a grievance procedurerather than trying to stipulate all potential issues offuture dispute

- Grievance filings can be tactical to show uniondiscontent regarding an issue

This will tend to rally the employees and increasefuture bargaining leverage


5/35

1 -

11 -5

The !istorical Evolution o" Grievance

Ar#itration

The Spread of *rbitration

- The advocacy of the +ar ,abor oard during ++%%

helped grievance arbitration to become a common

practice- ,ater& Taft-.artley embedded grievance arbitration in

national labor policy

/ourt !ncouragement of *rbitration

- * series of Supreme /ourt decisions known as the

Steelworkers trilogy encouraged the use of arbitration

and insulated arbitration awards from 0udicial review


6/35

1 - $

11 -6

%udicial &e"erence to Ar#itration

- /ourt cases continued the basic principle of 0udicial

deference in the Steelworkers trilogy and added

modifications

- %n the /ollyer decision of 121& the court gave thearbitrator the responsibility to rule on an unfair labor

practice issue

- %n the 3lin decision of 14'& the courts broadened the

deferral of other unfair labor practice issues toarbitration


7/35

1 - '11 -7

The Functions o" Grievance

Procedures and Ar#itration !mployee %nterest in 5ue 6rocess and 7airness

- The grievance procedures protect workers and renderindustrial 0ustice

- *lternatives to grievances could cost management more to

ad0udicate- %f employees were to lose confidence in the procedures& they

may turn to more costly and disruptive methods to solvetheir problems

!mployer %nterest in ,abor 6eace

- Grievance procedures reduce the likelihood of workstoppages

- Some contracts allow workers to strike over health andsafety issues& since they may be urgent and potentially life-

threatening


8/35

1 - (11 -8

%oint )nterests in *ontinuity and

*onsistency

- oth sides benefit from procedures that are consistent

and allow fle8ibility in addressing unforeseen

developments and uni9ue needs

Societys %nterest in %ndustrial 6eace

- Grievance and arbitration procedures serve the

interests of society by preserving industrial peace and

not overloading the courts

1 +


9/35

1 - +11 -9

!o, Ar#itration Wors

The /omponents of *rbitration- 6rehearing riefs present the sides views before the

hearing

- Stipulations are shorter than briefs& and are statementsof the issues in dispute and some key facts in the case

The *rbitration .earing- The parties present their positions and evidence to

support their cases- %n disciplinary hearings& management will commonlybe asked to present their statement first

1 1.


10/35

1 - 1.11 -10

The Ar#itrator/s &ecision

Some contracts stipulate time limits for the decisions& though

decisions are commonly rendered within $ days

- *rbitrators seldom add substantial punitive penalties to their

decisions

- %f reinstatement is ordered& the arbitrator could order the

company to pay the employee full wages that have been lost

*rbitrators 5ecision /riteria

- ;ost agreements re9uire discipline to be for 0ust cause

- The arbitrator must first determine if the issue actually occurred&then if it was a violation of the agreement

- *rbitrators commonly re9uire progressive discipline and allow

severe discipline for repeat offenses

1 11


11/35

1 - 1111 -11

The )mportance o" Past Practice

- *rbitrators commonly rely heavily on custom

%f& for e8ample& the company commonly suspended a

worker for one week for a third absence& the arbitrator

would not allow a more severe penalty on another

employee unless there were e8tenuating circumstances

*rbitrators could turn to practice at another firm for

guidance& if no guidance on that issue were available at

the workers firm

1 10


12/35

1 - 1011 -12

The )mpact o" Pu#lic Policy

*onsiderations in Ar#itration

The role of the arbitrator is to decide grievances based upon

the collective bargaining agreement

!vents of the past two decades 9uestion whether arbitration is

responsive to public policies that govern employee rights

*rbitrators are divided over whether they should consider

e8ternal laws when deciding a grievance

Those who favor a more active role acknowledge that the

arbitrator


13/35

1 - 1311 -13

Who Are the Ar#itrators

They usually have some e8pertise in industrial

relations and are sometimes designated in the

agreement

Some labor agreements provide for permanentarbitrators

;any arbitrators are part-time& and also work&

for e8ample& as labor relations or law

professors

1 14


14/35

1 - 1411 -14

The 2nion/s &ecision to Go to Ar#itration

- %t is not a simple matter for the union to decide

to press a grievance to arbitration

- *rbitration is costly

- The union might drop the case even it is

winnable but insignificant

- (nions must be careful to fulfill their =duty of

fair representation> ?57@A to the affectedemployee

1 1

11 15


15/35

1 - 111 -15

The &uty o" Fair Representation

- %n 1''& the Supreme /ourt ruled that& in return for therights of e8clusive representation& the union has theduty to represent all members without discrimination&

fairly& impartially& and in good faith- /ourt held against =arbitrarily ignoring a meritorious

grievance or processing it in a perfunctory manner#fraud& deceit& or bad-faith conduct in the handling of a

grievance# and refusal to handle a grievance out ofpersonal hostility toward the grievant

1 1$

11 16


16/35

1 - 1$11 -16

2nion Responsi#ilities under the &uty o"

Fair Representation

- 1 %ndividual employee has a right to have the clear termsof the contract enforced

- " !mployee has no right to a particular interpretation ofthe contract& but does have a right to have it applied

consistently- $ (nion has no duty to carry every grievance to

arbitration& but must process arbitrations similarly on merit

- ' (nion cannot settle a grievance in bad faith

- B (nion cannot trade an individuals meritorious grievancefor the benefit of another

- C (nion owes the employee reasonable care ininvestigating the grievance

1 1'

11 17


17/35

1 - 1'11 -17

The *onnections #et,een Grievance Procedures and

ther Aspects o" the a#or-5anagement Relationship

/ontract argaining versus /ontract *dministration

- The attitudes of the parties in negotiations typically carry

over into the administration of the contract

- /ooperative attitudes between union and managementincreased the likelihood that grievances would be settled at

the lower steps in the procedure

- The number of issues in negotiations and the time until

settlement are correlated with the rate of grievances

7ractional argaining: %nformal bargaining with the

supervisor to modify the agreement

1 - 1(

11 18


18/35

1 - 1(11 -18

The Functions o" a Worplace )ndustrial Relations

6ystem7 )nterrelationships and utcomes

1 - 1+

11 19


19/35

1 - 1+11 -19

5id-term or *ontinuous 8argaining

The average length of collective bargaining

agreements appears to be increasing in the (S

- 7;/S data suggests the duration of nearly 'D of

new agreements is more than three years This re9uires some means of addressing issues that

arise during the term of the agreement in addition to

the grievance procedure

- /an be done with =,etters of *greement> that are

binding

1 - 0.

11 20


20/35

1 - 0.11 -20

The imits o" Ar#itration7 *on"licts over

Technological *hange

- /hanges in technology can alter how work is performed- /omputer aided design ?/*5A is one e8ample

/*5 can transfer drafting and similar 0obs from their traditionalplace within blue-collar production units to non-unit engineers

-*s new technologies evolve& disputes over such issues willbecome more common

- The Eapanese industrial relations system may be bettersuited to respond to changing technologies than the (S

%n Eapan& both blue- and white-collar workers are in the sameunion

- ritain may be less able to respond to change& sinceseparate blue- and white-collar unions and a heavy relianceon craft unionism slows ad0ustment

1 - 01

11 21


21/35

1 0111 -21

Evaluating the Per"ormance o" the

Grievance 6ystem

;ost employee complaints are resolved informally ,ow grievance rates may be a sign that unions are not

aggressively enforcing the terms of the contract

Time and /osts of Settling Grievances- Two criteria that are commonly used to evaluate grievance

procedures are the time taken to settle claims and the cost

- *lthough still shorter than litigation& the time to resolve anarbitration is increasing

%n "B& the average time for a settlement following the re9uest foran arbitrator was '1 days F plus an average 1C$ days followingthe grievance filing

,itigation is typically "-$ years

- %n "B& the average cost of arbitration was $&2$"& compared totypically more than 1& for litigation

1 - 00

11 22


22/35

1 0011 -22

The E""ects o" Ar#itration &ecisions

Some reinstated employees face hostility of

supervisors and even fellow workers

- Those who appealed grievance decisions later had

more negative performance and promotion e8periences- Supervisors of grievance filers also faced similar

problems

- Thus& the process should be used with caution

- oth sides can learn from the grievance e8perience

and benefit from such changes

1 - 03

11 -23


23/35

1 0311 -23

Alternatives to the Grievance

Procedure in the 2nion 6ector The costs and delays of grievances and arbitrations have led tosome alternative procedures

- !8pedited *rbitration

6arties agree to speed the disputes and bypass certain

steps and e8pedite time lines

- Grievance ;ediation

Third party functions as both a mediator and arbitrator

!mpowered to settle the dispute if mediation fails ;ediation settlements are 9uicker and less costly than

arbitration cases ?in 14B it was $ versus 1&$&

and 1 days versus B" daysA

1 - 04

11 -24


24/35

1 0411 -24

*on"lict Resolution in 9onunion 6ettings

The absence of a union does not eliminate the need

for conflict resolution

;any employers have instituted complaint systems

for nonunion employees- These procedures are often the only direct recourse

available to nonunion employees who feel they have

been treated unfairly

These procedures are often less consistent in ensuring

fair treatment than union grievance procedures

1 - 0

11 -25


25/35

11 25

Reasons "or Adopting 9onunion Grievance

Procedures

There are three ma0or reasons why employers adopt

nonunion grievance procedures

- 1 * management strategy to improve performance of

the workforce- " !mployers may adopt nonunion grievance

procedures as part of union avoidance strategies

- $ !mployers may adopt nonunion grievance

procedures to reduce the risk of litigation fromemployees

1 - 0$

11 -26


26/35

11 26

Types o" 9onunion Grievance Procedures

+hile union grievance procedures are standard in

structure& nonunion procedures vary greatly

*t least half of nonunion firms have formal grievance

procedures- ut many lack any procedures for resolution

- The most basic is the Hopen doorH policy

The employee is invited to complain to the manager

3mbudsman are an alternative to traditional

procedures

- They help to resolve complaints and conflicts among

employees and managers

1 - 0'

11 -27


27/35

11 27

)ntegrated *on"lict 5anagement

6ystems

%n recent years& a trend has emerged toward=integrated conflict management systems>

- They use a systematic approach to preventing&

managing& and resolving conflict by focusing on thecauses

- /omplaints by employees against supervisors& peerdisputes& poor service& or team disagreements are someof the reasons for this trend

- *lso& workplace disputes now include comple8problems such as intellectual property and conflict ofinterest

1 - 0(

11 -28


28/35

11 28

Why 9onunion Employees &esire

*omplaint Procedures

!mployees in non-union firms seek complaint procedures in

part because they might challenge discharge

+ithout such procedures& courts have applied a doctrine called

employment at will

- That doctrine stipulates that both the employer and employee are

free to end the employment relationship at any time F provided

the termination does not violate statutory constitutional

provisions

/ourts have loosened the employment-at-will doctrine inrecent years& but there is still controversy surrounding the due

process rights of nonunion employees

1 - 0+

11 -29


29/35

9

&i""erences #et,een 2nion and 9onunion

Grievance Procedures

+hile both provide resolution for conflict& there are

important differences between union and nonunion

workplaces

- (nioniIed workplaces have established in collectivebargaining agreements 0ointly by the union and

management

- +hile the union represents the employee in the union

setting& the employee typically represents him orherself in a nonunion setting

- ;anagement makes the decision in a nonunion setting&

not an arbitrator

1 - 3.

11 -30


30/35

)mpact o" 9onunion Grievance Procedures

!mployees are less likely to use grievance procedures

in a nonunion setting

- %f the procedures contain Hdue processH procedures&

they are more willing to engage in the process /ritics say that employees fear reprisals for filing

grievances

- Surveys indicated that one-third who did not file

grievances feared reprisals or feared little chance ofsuccess

1 - 31

11 -31


31/35

Peer Revie, and 2nion Avoidance

%n recent years& a number of firms have adopted peer

review

- This is a particular type of complaint resolution

procedure- %t is also an effective union substitution device

- @eview panels are established to decide employee

grievances

- Jey feature is that the ma0ority of members of thepanel are peer employees of the grievant

1 - 30

11 -32


32/35

9onunion Ar#itration and Employment

a,s

*rbitration has long been a feature of union

grievance procedure

y contrast& use of arbitration has been far less

common in the nonunion sector

ut mandatory arbitration has grown in the

nonunion sector& from being rare in the 1s

to appro8imately 1B percent by the mid-"s

1 - 33

11 -33


33/35

&e#ates ver 5andatory Ar#itration

*dvocates say it provides a faster and more efficient

mechanism for resolving employment law claims

/ritics say that procedures are controlled by

employers& suffer from potential bias of arbitrators&and move the ad0udication of public employment

claims from the public forum of courts to arbitration

/ritics further worry that procedures will

systematically bias the procedures in favor of

employers

1 - 34

11 -34


34/35

&ue Process 5odels

+hile the debate continues over the enforcement of mandatory

arbitration procedures& there are new models for due process

protections

%n 1'& the (S 5epartment of ,abor


35/35

6ummary

- Grievance procedures provide a mechanism to settle

disputes that arise during the term of the agreement

- They typically include successive steps

- /ontracts are comple8 and thus re9uire an interpretiveprocedure such as arbitration

- *rbitrators consider past practice in the workplace in

their decision-making process

- *rbitrators decisions can be overturned on the meritsof the case if public laws are applied

grievance handling in human resources management

Documents