| What is a Grievance?
Violation of the Contract
Contractual grievances include violations of the contract, memoranda of
understanding, side letters, and previous arbitration awards that have
interpreted the contract. Grievances based on violations of the contract
are the most common and often the easiest to win, especially where the
violation is clear-cut. A grievance may be more difficult to resolve
when the contract language in question is unclear or ambiguous, two or
more contract clauses are in conflict, the facts surrounding the problem
are not clear, or management is being stubborn. Even when the contract
is silent, however, you still may be able to grieve a problem on one of
the following grounds.
Violation of the Law
Local, state, provincial or federal laws always supersede the contract
when the contract is in violation of the law. Also, filing a grievance
based on an alleged violation of law does not prevent you from also
pursuing legal remedies. However, a grievance is often the quickest way
to get management to comply with the law. Informing management of a
violation of the law also can give the union the leverage it needs to
resolve the grievance. Additionally, it may be necessary to first give
management an opportunity to resolve the problem before pursuing a legal
remedy.
Violation of Past Practices
Past practice" is a term you may hear often as a steward. A short
definition of a past practice is any long-standing practice that:
Occurs regularly
Both the union and management have accepted and/or not challenged
Does not violate the contract or any written company rule
Past practice
Usually covers situations where the contract is silent or ambiguous Í A
past practice grievance usually arises when management unilaterally, and
without notice to the union, changes an established procedure or
disciplines a worker for following a past practice.
For example, "wash-up time" was once a common past practice. A
company allowed workers to leave their work areas fifteen minutes before
the end of the shift to wash-up before clocking out. When the company
changes the practice without notice to the employees or the union, then
disciplines an employee for following the practice, the union can file a
grievance based on a violation of past practice.
These guidelines will help you determine if a past practice violation
has occurred.
Uniformity
Was the policy consistently applied over a period of time and did at
least the majority of the employees have the opportunity to enjoy the
practice.
Longevity
The longer the period of time a policy has been effect, the stronger the
case for it being considered a past practice.
Acceptance
Both the union and management know the practice has been in effect, and
neither party has objected.
No Written Language
There is nothing in writing either in the contract or in written company
rules regarding the practice. Written language supersedes past practice.
Past practices are often difficult to establish. Past practice
grievances have became less common in recent years, as there are fewer
practices not covered by work rules or contract language.
For example, the NLRB has ruled that employer gifts such as a
Christmas bonus or a Thanksgiving turkey are gratuities and cannot be
considered past practice. Management’s right to direct its work force
and change operating procedures if it does not conflict with contract
language has been upheld in numerous arbitrations. Furthermore, lax
enforcement of a rule does not create an enforceable past practice.
Finally, even if a past practice meets all of the criteria listed above,
an arbitrator still may refuse to uphold the grievance.
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