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:
Both the union and management have accepted and/or not challenged
Does not violate the contract or any written company rule
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.
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.
The longer the period of time a policy has been effect, the stronger the case for it being considered a past practice.
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.