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EAA Union Stewards’ Guide - Public

THE EAA UNION STEWARD’S GUIDE

Introduction

Steward Responsibilities

Steward Duties

Conducting Effective Meetings

Issues Particular to Professionals

Dealing With the Chronic Complainer

The Union Steward (Poem)

Grievances

Priorities

What is a Grievance?

Duty of Fair Representation

The Grievance Process and Grievance Procedure

The Process

The Procedure

Additional Grievance Provisions

Who Owns the Grievance?

Grievance Investigation

Writing the Grievance

Presenting and Settling the Grievance

Arbitration

Disciplinary Investigations

Insubordination

Weingarten Rights

Grieving Disciplinary Action

Appealing Discipline to Civil Service

Reference Documents

Investigation Checklist

Investigation Fact Sheet

City Grievance Form

City Grievance Appeal Form

City Information Request

INTRODUCTION

Union Stewards…The backbone of the Union:
EAA Union Stewards are elected by their co-workers; they are the eyes and ears of the Union. They diligently work to protect members on the job and serve in the vital position of Union-Management liaison. Stewards serve the interest of the membership and they deserve the prestige and dignity of their calling. The authority granted to them must be exercised judiciously; abuse of power is not a prerogative of a Steward. They must not act in their own interest first, they must not enter into private agreements with the employer, and they must not exceed the authority granted to them by the Union. Stewards have no authority to take strike action, or any other action interrupting the business of the employer except as specifically authorized by official action of the Union.

STEWARD RESPONSIBILITIES INCLUDE:

Assisting in representing union members.

Addressing co-workers concerns and problems.

Fully understanding and answering questions about the MOU.

Working with management to solve problems.

Contacting your Labor Representative when necessary.

Participating in organizing Fair Share (Agency-Fee) members.

The union would have a difficult time providing outstanding representation without the Union Stewards unselfish and dedicated service to the membership:

Stewards ensure that an on-the-job union representative is always available to assist members.

Stewards ensure that co-worker rights are not being violated.

Stewards watch out for potential problems.

Stewards listen to co-workers problems and concerns.

Stewards serve as the member’s first course of action if a work problem arises.

Steward Training is Ongoing:
EAA is committed to providing ongoing Union Steward training meetings, seminars, and courses to better serve the membership in the workplace. In addition to fully understanding EAA’s MOUs, Stewards are trained in a variety of areas including problem/conflict resolution, communication skills, and grievance handling.

DUTIES OF STEWARDS:

The duties of Stewards at their particular place of employment are:

To educate members about the terms and conditions of their MOU and to answer questions about the agreement.

To enforce the collective bargaining agreement with the City of Los Angeles.

To require that members adhere to the provisions of the MOU.

To report to the Labor Representative practices that are not in accord with the collective bargaining agreement.

To work directly with the Labor Representative regarding all grievances and disputes, including the investigation and presentation of grievances and the direct representation of members who are subject to discipline.

To post all official communications from the Union and/or from the Labor Representative on the appropriate bulletin board.

To report to members the activities of the Union, i.e. membership meetings, elections, etc.

To advise members of the services and opportunities provided by the Union, specifically those which come directly from the collective bargaining agreement and those that come from the union – Health and Welfare and Pension benefits, Sick benefits, Scholarships, etc.

To advise members of their obligations to the Union such as observance of authorized picket lines, service to the Union in accord with organizing, assessment resolution, etc.

To endeavor at all times to create favorable conditions and to maintain harmonious co-worker relationships, but when not possible, to resolve differences or disputes between or among members.

To at all times conduct himself/herself in such a manner as to set a good example for the members they represent and all members of the Union.

CONDUCTING EFFECTIVE MEETINGS:

Prepare – prepare – prepare:
Think about the meeting. What is the goal of the meeting? Decide on the three most important things you want to get resolved or discussed. Who should be informed of the meeting? Should all members be there? Who needs to be de-briefed after the meeting? Take a notebook and pen. Jot down questions you need to ask and think about what issues or questions may come up. Think about possible problem areas and develop a strategy for handling them.

Develop an Agenda:
If you write down how you want to start the meeting and the key points you want to cover prior to the meeting, you are more likely to maintain control of the meeting. Stick to your plan during the discussion, don’t get sidetracked

Use the Meeting to Gather Data:Rather than giving out information, use the meeting as an opportunity to gather data. Ask questions and take notes – repeat back what you have heard and ask for clarification. Instead of reacting to confrontational information, ask another question, i.e. “Why do you say that” or “Can you give me a specific example?”

ISSUES PARTICULAR TO PROFESSIONALS:

Professionals, including most EAA members, are highly educated and have been taught to believe that unions are primarily for workers performing manual or factory labor. Overcoming this bias is a major challenge for EAA and its Union Stewards. The following information is to help the Steward in addressing common statements heard by many unions who represent non-traditional union members.

“Professionals Join Professional Associations, not Unions”:
In the early days of unions, there was much violence brought on by the terrible working conditions in many mines and factories and by the thugs hired by companies to break the union organizers. Hollywood then contributed to the image by perpetuating the stereotype. In reality, a union is a group of employees with the same interests working together to negotiate with management on an equal footing. When each employee is on his or her own, they are at a distinctly inferior position when discussing wages and benefits. By being part of a recognized collective bargaining unit represented by a union, employees have the legal right to be treated as equals at the bargaining table.

“I am too Professional to be in a Union”:
Does being a “professional” guarantee that management sees a worker’s worth in the same way as the worker? Are the employee evaluations less arbitrary? Does the input and opinion of a professional matter more and thus bring greater rewards? The answer all of these is generally “no”. The union can ensure that members are evaluated fairly, have input to the workplace through negotiations, and are valued more for their long-term worth than short-term cost.

“The Union Protects Bad Workers”:
Unfortunately, among the large number represented by EAA there are a few who may not seem to be worthy of representation. However, the union is obligated by its contract to represent every member to the best of its ability. The most effective response is to discuss the many good people EAA has helped. The Steward can also remind members that the Union ensures that management follow its own rules when trying to deal with both good and bad employees and that we all benefit when the rules are enforced.

“I Worked so Hard for my Degree, I can Handle Myself”:
Ask about the many private, non-union companies caught up in mergers and down-sizing. Did those who were let go handle themselves effectively? Or is it better to enjoy the strength that comes from having a large group negotiating from the same position? When layoffs are threatened by the Mayor, would members be more comfortable without the protections of seniority, bumping rights, and other fixtures of their employment? That could be easily changed by management if unions were not there to oppose them and ensure employees’ rights.

“EAA is Self-Serving”:
This touches on the key reason for informed and dedicated Stewards. To get the truth out regarding the Union and its dedication to its members is job one. Union staff wants nothing more than to provide quality service and the Steward must emphasize the very real efforts and successes by the Union. Discussing wins in representation with members can foster the needed support for the Union. Remember, that the majority of the members’ representatives are volunteers – Stewards, Unit Councils, and Governors. The staff professionals are limited in numbers, dedicated, and effective.

DEALING WITH THE CHRONIC COMPLAINER:

Almost every Steward knows one, the mad at the world co-worker who hates the union. Their anger defies reason; maybe they had a bad experience with the union once and never got over it. Maybe they don’t understand the way the union operates, or the benefits that are a direct result of the union’s presence. It may be based on the union’s position on issues, its leaders, perceived failure at the bargaining table, the grievance process or its dues? The day to day anti-union ranting can wear down the strongest union supporter especially a Steward who knows better than anyone else just how much the union is actually doing.

There are ways to deal with this, but first remember, you owe it to yourself and your co-workers to take an objective look at every complaint, no matter who it comes from. It may be the non-stop complainer, but does it have merit? If it does and you’re in a position to help make things right then pursue it. Helping a chronic complainer with a legitimate complaint will take you a long way toward moderating future complaints. But if the complaint is unjustified or lacking merit you owe it to the union, yourself and your co-workers to deal with it honestly.

Sometimes if you hear the complainer bending someone’s ear with false or erroneous information you can step in and set the record straight. If the complainer is confronted head-on it may slow him or her down.

In the same way, it may be possible to shut down the complainer by confronting him or her in front of a number of fellow co-workers; however, prepare your response in advance, pick some issue he or she has been griping about. Setting the record straight in front of co-workers is a great tool to modify the complainer’s behavior, it won’t make them an ally but it may make him or her think twice about making false statements or making an issue out of every little thing in the future.

The best solution of all, of course, is to turn the union-hater around by having them observe your hard work on behalf of every member. Sometimes it’s as simple as asking them why they complain so much, if they came to you first you could explain the particulars of a situation. Or explaining the difference between grievances based on merit verses grievance based on supposition.

THE UNION STEWARD

Who are these of lowly pay
With haggard look and hair of grey?
They get no rest by day or night.
They’re always wrong. They’re never right.
They do not have a law degree,
But go to bat for you and me.
Though few have studied labor in college,
They must possess the widest knowledge,
Of labor rules and when to grieve,
Vacation pay and sickness leave.
Of overtime and who’s to do it,
Of coffee time and who’s to brew it.
The how and which and why and when
And all the problems of women and men.
If, with bosses they agree,
Then they’re the rats who’ve got weak knees.
If to the workers they try to cater,
Then they’re branded ‘agitator’.
Those who have to take this slop
Are called the STEWARDS of your shop.

-Anonymous

GRIEVANCES

PRIORITIES:

EAA’s first priority is to negotiate a fair and equitable Memorandum of Understanding (MOU) for its members. The MOU is an enforceable contract between the City of Los Angeles and each employee covered by the MOU. The MOU specifies the wages, benefits, and rights of City employees in the workplace.

Once an MOU is in place, the primary responsibility of EAA is to ensure that the terms and conditions of the MOU are followed by City management. The main vehicles for enforcement are the grievance procedure and the unfair labor practice. These procedures are also utilized to ensure compliance with labor law, City Codes, policies and procedures, and “past practices”.

As the first line of defense in the workplace, the Union Steward is normally the initial official union representative contacted by an employee who feels her or his rights have been violated. As such, it is imperative for the Steward to understand grievances thoroughly.

The grievance procedure in Los Angeles has its limitations, which may be exploited to their fullest by management. One of the most frequent abuses is to delay settlement as long as possible, hoping that the grievance will simply go away. It is the Steward’s responsibility to identify these problems, minimize their impact, and contact EAA staff for assistance when necessary.

At the staff level, we may utilize additional resources to resolve the problems including applying pressure through the Mayor or City Council, involving the CAO Office or other departments, or filing of an Unfair Employee Relations Practice (UERP). The union will determine the most effective response, but the goal is to convince management that it is in their best interest to take the MOU and grievance procedure seriously and make them work.

How we help members solve their problems assists EAA in shaping the image of the union. Member involvement in union activities increases member support for the union. The grievance procedure is one way to involve individual members through an active Steward program. As a Steward, you will become involved in investigation, meeting with management, determining potential resolutions, and carrying out actions to encourage management to resolve problems quickly and fairly.

While there is no substitute for the experience of handling grievances, this manual is designed to assist you through the process and to give the benefit of the many Stewards and labor representatives who have preceded you. Continued education and familiarization with the MOU will ensure the best possible handling of grievances. Steward training and this manual are designed to assist you in developing the confidence and techniques to build the membership support EAA needs to be able to represent its members to the fullest.

GRIEVANCE –WHAT IS IT?

The dictionary defines a grievance as any “circumstance regarded as just cause for protest.” “Grieving” in the context of labor is the formal act of making a complaint. The person who files the grievance is known as the “grievant”.

Our MOUs additionally define a grievance as “any dispute concerning the interpretation or application of this written MOU or departmental rules and regulations governing personnel practices or working conditions applicable to employees covered by this MOU”.

Other possible grievances may be for violations of municipal, state, and federal laws, unfair or disparate treatment of employees, and past practices. Various types of violations are discussed below.

The Contract (MOU):
Grievances based on violations of the MOU 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, if two or more contract clauses are in conflict, if the facts surrounding the problem are not clear, or if management is being stubborn. Even if the contract is silent regarding a particular issue, one of the other situations may apply.

The Law:
Laws at any level always supersede the contract if the contract is in violation of the law. Filing a grievance based on an alleged violation of law does not prevent the grievant from also pursuing the issue through the courts. However, a grievance is often the quickest way to achieve resolution. Informing management of a violation of the law can also give EAA the leverage it needs to resolve the grievance. It is also frequently advantageous to first give management the opportunity to resolve the problems before pursuing a legal remedy.

City Rules and Policies:
Alleged violations of the City Charter are rarely handled as grievances. However, City Codes, particularly the portion of the Administrative Code regarding employment, are binding on all departments unless specifically modified by the MOU.

Management does have the right to make and implement rules related to the orderly and efficient operation of the City so long as:

Management provides notice to the employees and EAA.

The rules are reasonable on their face.

The rules are reasonably, equally, and fairly applied.

However, changes to these rules or implementation of new ones are usually “meet and confer” items with the union. Failure to do so constitutes an “unfair labor practice” which is handled by other than the grievance process.

Unfair or Disparate Treatment:
Disparate treatment occurs when two people are treated differently in the same or similar situation. This is particularly evident in the application of discipline and is a frequent cause for overturning a particular proposed discipline.

However, seeming disparate treatment can actually be a case of discrimination, which is handled by complaints to a departmental Affirmative Action Coordinator, the City’s “Office of Discrimination Complaint Resolution” in the Personnel Department, or the State. Discrimination exists if the disparate treatment has a basis covered by the laws against discrimination on the basis of age, gender, race, origin, religion, sexual orientation, marital status, disability, etc.

Disparate treatment is much broader and includes treating someone differently because of their personality, appearance, union activity, prior incidents, personal preferences, friendship or lack thereof, and experience.

While disparate treatment complaints are common (i. e. “my boss doesn’t like me” or “my boss gives me all the dirty jobs”), they are often very difficult to prove. Successfully resolving a disparate treatment grievance requires a significant amount of documentation and often requires that you show a pattern of objectionable behavior by a particular supervisor.

Past Practice:
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 EAA and Management have accepted and/or not challenged.

Does not violate the MOU or any written City rule.

Past practices usually cover situations where the MOU and rules are silent. A grievance arises when management unilaterally, and without notice to the union, changes an established procedure or disciplines an employee for following a past practice.

A good example is “wash-up time” which was once a common practice. Workers could leave their work areas 15 minutes before the end of shift to wash-up and/or change clothes before leaving for home. When a company decided to require wash-up on the employee’s own time without negotiating with the union, a past practice violation occurred.

The following will assist you in determining if a past practice violation occurred:

Uniformity – Was the practice consistently applied over a period of time and did at least a majority of the employees in the particular work group or work location have the opportunity to enjoy the practice?

Longevity – The longer the period of time a policy has been utilized, the stronger the case. A thorough investigation and interview process can make this determination.

Acceptance – Neither EAA nor management have objected to the practice.

No Written Language – There is nothing in writing either in the contract or City rules regarding the practice. Should the written rule exist, it supersedes past practice. Ignoring a written rule does not constitute a past practice.

As our society has become more litigious, more subjects are covered by the MOU or rules and past practice grievances are fewer.

THE DUTY OF FAIR REPRESENTATION

EAA is required by law to provide the same level of representation to all workers covered by the MOU. This includes members, fair share fee (agency fee) payers, religious exemptions, and any other City employee covered by an EAA MOU. The legal term for this duty is the “duty of fair representation”.

This duty arose in labor law as a bargain between represented employees and labor unions. The union is certified or recognized as the exclusive bargaining representative for all employees in a bargaining unit. In exchange, the union agrees to fairly represent all employees in the bargaining unit, whether these employees are members of the union or not.

The most important part of the duty of fair representation is the processing of grievances. The majority of “failure to represent” lawsuits against unions involve alleged mishandling of grievances. It is thus vital that EAA officers, staff, and stewards be well-educated in the process and utilize extra care in processing grievances.

The steps outlined below are to aid in ensuring you process grievances in accordance with your duty of fair representation. These steps will be discussed in detail later in this handbook.

Consider all grievances solely on their merits.

You may not refuse to process a grievance because you do not like the grievant.

Investigate the grievance thoroughly.

Prepare the case as if it will be presented to an arbitrator.

Process the grievance promptly.

Meet all timelines required in our MOUs.

Take notes and keep written records.

Keep the grievant informed.

Treat all members of the bargaining unit the same.

Have a valid reason for any action taken on a grievance.

If the grievance clearly lacks merit and cannot be won at the lower steps or in arbitration, drop it.

Grievance settlement at the second level of review or higher may be made with or without the grievant’s concurrence (i. e. the Union owns the grievance). This is done only by the Union staff after due consideration and discussion.

Arbitration has special considerations that will be discussed under that topic.

THE GRIEVANCE PROCESS AND GRIEVANCE PROCEDURE

While the grievance process and the grievance procedure may seem to be the same thing, they are not. The grievance process covers the steps the grievant and the Union must follow investigating, handling, and resolving the grievance. The grievance procedure is specific to the City and our MOUs in particular. The procedure is presented here in summary form only, as it is printed in its entirety in every MOU. A similar process and procedure applies in any unionized workplace.

THE PROCESS:

Investigate and Prepare:

Prepare every case as if you had to present it to a neutral arbitrator. At every other stage of the grievance, you will be presenting to a management representative, but ultimately want arguments that can convince someone who has no stake in the grievance.
Determine the who, what, when, where, and why of the problem and pay close attention to time limits specified in the MOU.
Interview the grievant and determine which MOU clauses or departmental rules may have been violated.
Interview any witnesses and obtain any relevant documents.
Evaluate the problem to determine if there is a grievance or not.
Discuss the strengths and weaknesses of the case with the potential grievant.

Handling the Problem if Grievable:

Determine whether there is a violation.
Cite every provision of the MOU and every City rule that has been violated.
Upon request, a member is entitled to your presence at a management investigatory interview that could lead to discipline. Discipline is grievable if 5 days suspension or any lesser penalty is imposed. Discipline of five days suspension or greater is appealed to the Civil Service Commission.
You have the Duty of Fair Representation.

Handling the Problem if not Grievable:

Discuss the problem with the potential grievant and explain why the problem is not grievable.
If a lack of documentation is the problem, discuss how to obtain the needed documentation should the problem continue in the future.
Discuss alternate ways to resolve the problem.
Follow through on alternate solutions.

Try to Resolve the Grievance Informally:

Remember that the informal step is the grievant’s responsibility for our MOUs. This is not always the case in other workplaces.
Discuss with management and find out their position.
Explore settlements.
Discuss the strength of the case and the next steps with the member.
If the grievance is not settled in the informal meeting between the grievant and the supervisor, assist the member in filling out the grievance form. Time lines are critical.

NOTE: The earlier you attempt to negotiate a grievance settlement, the easier it is to effect a settlement.

Writing the Grievance:

Write a clear, simple, and brief description of what happened.
Cite the specific articles of the MOU and any working rule or City code that is violated. Include the phrase “and all other relevant MOU articles and rules.” This allows for discovery of additional facts that may assist in winning the grievance.
Ask for a remedy and include the phrase “and all other benefits to which the grievant is entitled.”
Determine if this grievance exists in general for many members and consider having EAA file a group grievance.

Presenting the Grievance:

Follow the time limits specified in the MOU at each step. If any limit is extended by mutual agreement with management, get it in writing (or email).
Prepare the grievant and go over the presentation. Instruct the grievant to avoid getting emotional or speaking spontaneously. Advise that there can be a short conference at any time during the presentation should an unexpected presentation by management occur.
If an indignant or emotional reaction might help the case, make certain it is you, the steward, who displays this behavior.
Keep copies of the grievance at each step and copies of each response. Also keep notes of management’s statements in grievance meetings.
As the grievant’s chosen representative, you have the right to represent him or her without fear of retaliation in the workplace.

Settling the Grievance:

Speaking technically, EAA can settle grievances with or without the consent of the grievant. However, we rarely do this as it results in an unhappy member.
Discuss possible settlement offers with the grievant before approaching management. Present both pros and cons and discuss the consequences of not settling.
Do not miss a time limit while waiting for a settlement. If settlement appears imminent, request an extension of time.
Be aware of any precedents you are setting with a settlement.

Arbitration:

If you have prepared as if going to arbitration from the beginning, this will be much easier.
Arbitrators love witnesses and documentation. These both can lend credence to what is otherwise a “he said, she said” situation.
Jointly choosing the arbitrator with management from a list provided by the Employee Relations Board is a necessary task. Ask EAA staff for assistance in this process.

THE PROCEDURE:

The grievance procedure in the EAA MOUs is presented in detail in Article 3.1, Section III – Procedure, and will only be presented here in summary form. Before the meeting at each level, review the meeting preparation guidelines on pages 3 and 19 of this manual.

Step 1 – Informal Discussion
The grievant is to discuss the grievance with his/her immediate supervisor. This step is normally performed entirely by the grievant although the grievant may wish to discuss the issue and the strategy with the Steward. In addition, the Steward may accompany the grievant upon request.

Step 2 – First Level of Review
This is when the initial written grievance is filed. While the grievant is responsible to fill out the grievance form and file it, the Steward may assist in clarifying the statements to make and, in particular, assuring that the correct citations are given for the articles or rules that were violated. Once again, the Steward may accompany the grievant in the review meeting.
NOTE: Citing the correct violations is essential as new issues cannot be added later in the grievance procedure.

Step 3 – Second Level of Review
The EAA Steward or Labor Representative will normally prepare this paperwork for filing by the member. The Steward will accompany the grievant to any meeting for discussion of the grievance.

Step 4 – Third Level of Review
This step is handled exactly like Step 3.

Step 5 – Mediation
This step is frequently waived by EAA or management. We believe that a settlement can be reached at Step 4 without the need for a mediator and that if management is not willing to negotiate at that step, non-binding mediation is a waste of time. There may be a case where mediation could prove useful in that a non-binding opinion of the outcome at Arbitration can be requested from the mediator and this may spur one side or the other to negotiate.

Step 6 – Arbitration
This step of the MOU specifies that the grievant and EAA jointly may serve the written notice. This means that both the grievant and EAA must agree to take this step. It is very important to get the arbitration documents properly filed, including subpoenas for any witnesses you intend to call. EAA staff will assist you at this stage and, depending on the importance of the case, may elect to handle the arbitration. Remember that arbitration is binding.

ADDITIONAL GRIEVANCE PROVISIONS:

Arbitration and the Duty of Fair Representation:

No employee has the legal right to demand that the grievance go to arbitration. The decision to go to arbitration or not ultimately lies with the union. This decision is based on the strength of the case, the importance of the case, previous decisions, cost, and other factors. The decision is only made with the concurrence of senior EAA staff.

The internal EAA procedure must be identical for all employees.

If a decision is made to not proceed to arbitration, the grievant must be notified both verbally and in writing. Included shall be the reasons for not proceeding and statements to emphasize that the grievant was treated fairly.

If a decision is made to proceed to arbitration, the arbitration must be made to the best of the union’s ability. This means interviewing and subpoenaing witnesses and obtaining all relevant documents from management. EAA must make the strongest case for the grievant and present the case in the most favorable light.

It is not necessary to use an attorney at the arbitration hearing, even if the grievant requests it. The use of an attorney is irrelevant when performing the duty of fair representation.

The grievant does not have a legal right to have his or her own attorney represent him or her at the arbitration. However, EAA may permit a grievant’s friend/family member as an observer.

MOU Article 3.1, Section II:

Details rights and responsibilities.

Discusses conditions for combining more than one similar grievance.

Discusses extensions of time and waiving of steps.

MOU Article 3.2:

Authorizes the Union Steward.

Refers to the Steward as a Grievance Representative.

MOU Article 3.3:

Provision regarding grieving of suspensions of 5 days or less.

WHO OWNS THE GRIEVANCE?

Informal Level – The grievant must bring the informal grievance and meet with his or her supervisor. At this time, the grievant is the sole party who owns the grievance.

First Level of Review – The grievant must fill out and file the initial written grievance. The grievant still owns the grievance, even if represented.

Second and Third Levels of Review – Technically EAA owns the grievance and decides whether to appeal the grievance to either level, although it is extremely rare for a decision to be made without concurrence of the grievant.

Mediation and Arbitration – EAA owns the grievance and is the sole party to determine whether to pursue a grievance to mediation or arbitration, although input is obtained from the grievant.

GRIEVANCE INVESTIGATION

Good investigation at the early stages of a grievance can lay the foundation for your case. Poor or sloppy investigation can harm your case because facts not revealed early tend not to be revealed at all.

Investigate as if the case will go to arbitration. This may expedite settlement when it is obvious your case will be persuasive to an impartial arbitrator. Having a thoroughly prepared case builds your confidence.

To assist you in your investigations, a sample checklist is included in the reference documents of the manual.

If you are unsure of how to proceed at any time in the process, contact your Labor Representative for advice and assistance. You are not in this alone.

The following steps are intended to assist you in conducting your investigations.

Listen to the Problem:
Fellow employees may come to you with a variety of problems. To determine the best way of handling a given situation, you must learn as much as possible about the problem. The first step is to hear the employee out and give her or him a chance to describe the problem. This will help the employee relax and be able to answer your questions more fully. This step must be performed with active listening.

Stop what you are doing.

Take the person to a place you can talk without being interrupted.

Face the person squarely. Make eye contact, but do not stare. Assume a relaxed, attentive posture, even if you do not like this employee.

Start your interview with open-ended questions such as, “What seems to be the problem?” or “Tell me what happened.”

Give positive feedback with body language and words that encourage further speaking. Words such as “I see”, “Uh-huh”, “Yes, go on” are good examples. Nod your head and lean forward to indicate you are truly interested in their problem.

Periodically recap the points made to ensure that you understand the real issues.

Once you have a basic understanding of the issues, you can flesh out the details with specific questions.

Inform the Grievant:
Inform the member as to how you will proceed in resolving the issue. Explain how the process works and go over the investigative steps required. Explain the MOU time frames and the possibility of delay. Throughout the grievance procedure keep your member informed as good communication builds trust.

Investigate and Get the Facts:
The following information is required for any potential grievance.

Who is involved? This includes the name, department, and civil service classification of everyone involved: the grievant, witnesses, and the supervisor(s).

What happened? What does the grievant want for settlement? What is needed to restore the grievant to the same position as if the injustice had not occurred? What MOU articles, work rules, or laws were violated?

When did it occur? Be as accurate as possible regarding date and time of the various events.

Where did it occur? Include the address, building, floor, room, department, etc.

Why did it happen? This may involve speculation about the motives of others and lead you to further investigations.

Witnesses-were there any?

Much of the initial information will be obtained from the grievant, but you have only heard one side of the story. Make a determined effort to obtain other viewpoints to ensure you have the whole story. You may obtain additional information from the grievant, co-workers, witnesses, other union representatives, supervisors, and members of the public if they were involved. It is quite useful to obtain management’s side before you fight the case and will assist you in obtaining early settlement.

In addition, the following records may supply useful information:

Grievance files at EAA.

Arbitration decisions.

Labor Representatives at EAA.

The MOU and any side letters of agreement. The Steward must have read and understand the MOU.

City rules, procedures, and guidelines.

Personnel files.

Medical records (may be confidential).

To utilize any of the preceding documents, you must have read and understood them. EAA’s Steward training is designed to familiarize you with these documents and your EAA Labor Representative is available for consultation and clarification of any document or procedure.

Please see the complete list in the reference documents at the end of this manual.

Keep Records of Workplace Problems:
As you are doing your investigation, it is a good idea to record all the information you receive on a fact sheet, a sample of which is n the reference documents. This sheet will help you determine if there is actually a grievance or not. Investigations, whether they lead to a grievance or not, should be kept for future reference. This will aid EAA to ensure it handles similar complaints in a consistent manner.

Often the difference between winning and losing may depend on the completeness and accuracy of the investigation, the records, and EAA’s ability to evaluate it properly.

The Three Rules of Evidence:
The information on your investigation fact sheet should be evaluated considering these three rules of evidence.

Opinions are not facts. All opinions must be specifically qualified. If a person says “always”, ask “how often/when?”
Hearsay evidence is not factual. Search for the original source and witnesses and get the first-hand scoop. If someone says, “Mary heard. . .” or “John told me that. . .” find out directly from Mary or John what happened.
Facts must be relevant. Every fact that you uncover will not apply to the particular grievance. Highlight the relevant facts on your investigation sheet and avoid cluttering your arguments with irrelevant information.

Should We Grieve?
Now that you have all the information necessary to decide whether or not a grievance exists, evaluate all the information carefully, make the decision, and plan a course of action.

If you have fully investigated the problem and still feel the case is not strong, ask for advice from more experienced representatives or stewards. However, always give the grievant the benefit of the doubt.

If, after your investigation, you decide there is no basis for filing or continuing the grievance, discuss the problem with the grievant. Even though you may not believe a formal grievance can be filed, there may be other solutions to the problem. Sometimes you may be able to refer the grievant to other sources of help or may be able to resolve the situation informally.

Your responsibility of fair representation is fulfilled if you fairly and completely investigate the case and make your decision to grieve or not based solely on the merits of the case.

Conduct:
Stewards must conduct themselves professionally at all times. Through preparation, performance, and honesty you will gain the respect of your members and management. Set a good example in the workplace, do your job well, and perform your Steward duties withy integrity.

Meeting:
Before putting the grievance on paper you must meet with the immediate supervisor and attempt to resolve the situation informally. Informal resolution is advantageous to both sides as no higher management need be involved and a minimum of disruption occurs in the workplace. Settling issues at the lowest possible level is your preferred goal. If this cannot be done you will then need to file the formal grievance on the proper City form within the specified time limit.

Preparation for Meetings-All Levels of Review:

Prepare the case beforehand, have your facts down in writing. Organize and understand your presentation, be confident and anticipate arguments.

Avoid arguments with union members in front of management, maintain a united front.

Stick to the point, avoid getting led off on side issues.

Get to the main point of management’s argument, try to narrow down the area of difference between the parties, look for solutions.

Disagree with dignity, avoid getting excited, angry or hostile.

Avoid unnecessary delays, justice delayed is justice denied.

Settle grievances at the lowest possible step of the procedure, handle them properly and don’t pass the buck.

In discipline the burden of proof is on management, insist on evidence.

Avoid bluffing, develop a reputation for honesty.

Be prompt.

Maintain your position until proven wrong, avoid a hasty conclusion.

Enforce the contract, insist that the employer live up to the terms of the agreement.

WRITING THE GRIEVANCE

The preceding investigation may have taken place before the grievant had the informal step with his or her supervisor. In that case, you have given advice to the grievant for that meeting.

On the other hand, the grievant may already have met with his or her supervisor before contacting you. In this case, watch the time line in the MOU for filing the written grievance very closely. While the grievant must factually fill out and submit the grievance initiation form, you should consult with the grievant and have input to the contents.

The following steps are suggested for completing the written grievance form. Make certain the grievant understands the importance of each. If you are uncertain, check with your EAA Labor Representative.

Limit statements to the basic facts. Remember, the entire case need not be stated. The form is to trigger the formal steps of the process, not to win the case. Use the six W’s as a guide.

Leave out evidence, arguments, and justifications. This information is presented during the actual grievance reviews at each step of the procedure. In addition, written disclosure could allow the other side to prepare a counter-argument.

Refer to all MOU and rule violations. Use phrases such as “and all other relevant parts of the MOU” or “including but not limited to” in conjunction with specific citations. This may allow the adding of violations discovered during the process.

State the grievant’s (EAA’s) position. Use clear, affirmative statements such as “the employee was unjustly accused” and avoid statements of opinion such as “I think”. Omit any personal comments, opinions, or feelings.

State the full desired remedy. The entire purpose of grieving is to make the grievant whole by putting her or him back in the same position had the violation not occurred. Ask for payment of any lost wages or benefits, deletion of all records of the offense from the personnel files, etc. The grievant can only get what he or she asks for.

The grievant must sign and submit the grievance form. The City will not accept a form that is not signed and dated. The signature also protects EAA at future reviews of the grievance. The only exception is when EAA is filing a grievance on behalf of a group of employees and even then, we usually have at least one of them named as a principal.

PRESENTING AND SETTLING THE GRIEVANCE

Once you have investigated the case and decided it should be grieved, prepare yourself and the grievant to give the best possible presentation to management. Your goal is to solve the problem at the lowest step possible. Careful preparation makes this more likely.

Building Your Case:
In every step of the grievance procedure, both the steward and the grievant may speak. Determine in advance who will present each aspect of your case. Remember that the grievant is emotionally connected to the case and may make unplanned comments if you do not prepare properly. There are three steps in building your case:

Build the best case. Decide what issues, facts, arguments, and remedies you believe to be most convincing. Write them down separately so you can refer to them as you talk with the other side. Know what you want to say before you meet.
Anticipate management. Based on what you found out during your investigation, put yourself in the supervisor’s or reviewer’s shoes. Anticipate what facts, arguments, and remedies she or he is likely to offer.
Prepare responses. Based on what you expect management to argue, prepare responses, counter arguments, and compromises about the facts and remedies that you and the grievant are willing to accept.

The Oral Presentation:
The following are some suggestions to keep in mind when presenting an oral argument.

Take control. In any meeting with management, the objective is for you to control the tone, direction, and outcome of the meeting. You do not have to be overbearing, aggressive, or argumentative to do this. However, in some situations, there may be an advantage to a more confrontational technique. Try to make management present first as it is easier to poke holes in their arguments than to prove the grievant innocent before hearing the entire case by management.

Set the tone. The proper tone will depend largely on the situation and the type of relationship you have with the management representative. Normally it is best to be direct and positive.

Be calm. Remember, the grievant may not be able to avoid getting emotional, so you must remain calm and help to calm and assure the grievant. Threats are never effective and shouting is rarely effective.

Avoid personalities. It is not a matter of who is right, but of what is right that counts. Stay focused on the issues and do not allow yourself to be sidetracked. When you must disagree with management, do so with dignity. Remember, we strive for agreement, not conquest. You will need to meet with the same person in future grievances, so an atmosphere of mutual respect is useful.

Listen. Despite your best efforts, you may not know all the facts. You want to make sure you understand management’s real position. Sometimes, the real problem is not the action that led to the grievance.

Acknowledge valid points, then redirect the discussion to EAA’s position. Example: “We understand your concern about meeting the schedule. However, that does not mean you can ignore the MOU.” You are asking for justice, not favors. Be as fair as you expect management to be.

Caucus. Take a short recess if you need to calm the grievant, regroup, discuss matters or settlement proposals, or when there is division or disagreement between the grievant and yourself. Do not disagree in front of management.

Do not trade grievances. A common management ploy is to offer to grant one grievance if you agree to drop another. Each grievance should be prosecuted and settled on its own merits.

Management has rights. Both employees and management must live up to the terms of the MOU. Always leave the other side some graceful way out of a mistake.

Keep written records of the meeting. After the meeting write a brief summary of who participated, what happened, and any settlement that was discussed or offered. Keep all writings on each grievance in a clearly labeled file.

Settling the grievance:
Remember that the steward and the management representative are equals in the grievance process and share the responsibility for settling the grievance. Remember the following:

If management wants to trade (you win one and they win one), insist on settling each grievance on its merits. This is the only just way to settle.

If management stalls, try to push for an expedited answer. Remember, the time limits in the grievance procedure favor management, giving them longer to respond than EAA. If you suspect stalling, do not grant a time extension for a response. Keep in mind that sometimes a delay means they are seriously considering your position and that granting some time relief may be reciprocated in the future.

All time extensions, by either side, must be in writing or email so there is a permanent record.

If you cannot settle at any step, consider if you are going to appeal to the next step. Be aware of time limits and make the decision jointly with the grievant.

Always obtain the settlement agreement in writing. If something that was orally agreed is missing, do not allow the grievant to sign unless the omission is corrected.

ARBITRATION

Mediation is rarely used by the City or EAA due to it being non-binding. We will therefore proceed to the final step of the grievance process-arbitration. In arbitration, a neutral third party agreed upon by both sides hears the positions of both sides and makes a ruling that is binding. Arbitrations are normally handled by EAA staff or counsel, but they may request your assistance and/or presence.

Since any grievance not settled at a lower level may go to arbitration, it is important that the initial investigations and writing of the grievance be done as if preparing for arbitration. To do so, you must understand how arbitrators rule. Arbitrators will not grant any remedy not requested on the original grievance form. A case will be weakened in arbitration if important facts or key witnesses were not discovered and handled properly at the lower step of the procedure. You are better equipped to evaluate proposed settlements at a lower level if you understand how arbitrators rule.

Deciding Whether to Arbitrate:
Just because arbitration is the last step in the grievance procedure does not mean that every unsettled grievance proceeds to arbitration. EAA has the right to decide whether to arbitrate in accordance with the Duty of Fair Representation as long as the determination is applied fairly and equitably to all grievances.

Choosing Arbitrators:
The grievance procedure specifies how the arbitrator is selected. Since the list of arbitrators is prepared by the Employee Relations Board (ERB), which is appointed by the Mayor, it is important for staff to discuss the list when striking names for agreement on an arbitrator.

Most arbitrators are attorneys, college professors, and mediators. If unknown arbitrators are on the list, we can learn about them by examining their publicized decisions. Remember that even the same arbitrator may rule different in seemingly similar cases, as the details of each case are always different.

The Arbitration Hearing:
Arbitrations are normally held at the offices of the ERB. Sometimes a court reporter is present. EAA staff will determine if a case warrants this extra expense. The representatives of each side make opening statements, question and cross-examine witnesses, and make closing statements. The arbitrator will swear in witnesses and rule on objections made by either side. The arbitrator may ask for written briefs after the hearing is completed.

Sometimes attorneys may present the case for one or both sides. However, the grievant does not have the right to demand that EAA utilize an attorney, even if the other side does so. However, EAA may permit an observer for the grievant to be present.

If the grievance involves discipline, the burden of proof is on management, while in MOU or rule interpretation the burden of proof is on EAA. The party with the burden of proof is called the ‘moving party’.

Arbitrator’s Standards:
For discipline cases arbitrators use the “just cause” standard. They also have standards used to settle MOU interpretation disputes. The arbitrator tries to determine what the MOU actually says rather than what she or he thinks is a fair solution to the grievance. This means you can sometimes lose a case because of the language, even if the loss is unfair.

If the MOU or rule is not clear, the arbitrator may try to determine the “intent” of the parties when they negotiated the MOU or promulgated the rule. They also will consider how similar language has previously been interpreted, what is common practice, and which interpretation is most reasonable and equitable.

Time and Cost of Arbitration:
While the time limits to request arbitration and choose an arbitrator are spelled out in the MOU, we are at the mercy of the arbitrator’s available time. It normally takes two to three months to schedule an arbitration hearing. The cost of the arbitrator is divided equally between the City and EAA.

Arbitration is Final and Binding:
Once a case is taken to arbitration, the hearing is held, and the arbitrator issues his or her ruling, the decision is final and binding on both parties. Should the losing party fail to comply with a ruling, the courts will enforce the ruling. This is handled by EAA’s attorneys. The courts will rarely overturn an arbitration and will only consider a case of fraud, procedural violations, or misconduct.

DISCIPLINARY INVESTIGATIONS

WAS THAT INSUBORDINATION?

In the course of representing members, Stewards often must use forceful language. Judges have ruled that this is appropriate and cannot be used as insubordination against a Steward. The City often views insubordination as one of the capital offenses. As a Steward you should advise members that the general rule is to obey the instruction and grieve later. However, there are some questions to consider if you find yourself building a case for a member who has been disciplined for insubordination.

Was the member given a direct order? Refusing suggestions, advice, and the like may not be insubordination.

Was the member aware that the supervisor was giving a direct order?

Was the language clear? An order to stop smoking may mean in the current location or totally stop the behavior – it isn’t clear.

Was the order audible?

Was the member giving any warning about refusal? Sometimes Arbitrators want to know if the supervisor warned the person that the behavior was insubordinate.

Was there an on-going personality problem between the member and the supervisor? Provocation does not void insubordination but it might mitigate the severity of discipline.

Did the member willfully disobey or disregard the order?

Was the order reasonable?

Did the member feel as though complying would endanger lives?

Was the member set-up? Did the charge arise out of exercising rights under the collective bargaining agreement or law?

Members frequently ask their Steward for assistance in a disciplinary proceeding. The member may think this is a grievance, but a grievance is appropriate for a disciplinary situation only under specific circumstances and only after the discipline is issued. However, a steward should assist the member in disciplinary situations, particularly during the investigatory phase. Employees have certain rights in when faced with potential discipline and it is important for the Steward to understand and communicate those rights.

WEINGARTEN RIGHTS:

The U. S. Supreme Court ruled in the Weingarten case of 1975 that unions and employees have the following rights:

The right to a union representative at an investigatory interview if the employee reasonably believes that the investigation could lead to discipline.

The employee must request a representative.

The employer is not obligated to advise an employee of the Weingarten Rights.

The union representative has a right to:

Know the subject of the investigatory hearing.
Confer with the member prior to the hearing. Try to calm the member down and tell him or her to answer the questions truthfully and not to speculate or elaborate beyond the scope of the question. This is sometimes quite difficult as employees may believe they will be seen as “non-cooperative”. However, giving previously unknown information to management is counter-productive.
Speak and participate in the meeting.

The union representative may not argue the case, but is present to council the member, function as a witness, object to harassing questions, and assist in determining the truth.

Members may sometimes confuse their Weingarten Rights with management’s right to manage. Every time a supervisor meets with an employee cannot be “reasonably believed” to be a disciplinary meeting. A supervisor has the right to assign work, inquire as to the status of work, and discuss other regular work-related matters. However, should the meeting be announced as considering a potential disciplinary subject, or should the subject become potentially disciplinary, the employee may invoke their Weingarten Rights by simply stating:

“I refuse to submit to this interrogation because I believe it may lead to my discipline or termination or affect my working conditions. I demand the right to have Union Representation present on my behalf before this proceeding continues. Unless I have Union Representation I respectfully refuse to participate in this discussion.”

In practice within the City, it may only be necessary to state that Weingarten is being invoked, but members should be advised to state the contents above in addition to stating “Weingarten” so there can be no question what the employee is doing. This can avoid a possible charge of insubordination.

The supervisor or manager then has three options:

Call in the Union Representative.
End the Interview or meeting.
Offer the employee the choice of continuing without representation or ending the meeting.

Should the supervisor deny the request for representation, the employee may refuse to answer any further questions and suffer no consequences for refusing. However, the discipline may be issued.

GRIEVING DISCIPLINARY ACTION:

A grievance may be filed for five days suspension or lesser discipline. See MOU Article 3.3 and note that this grievance does not begin at the informal level but at least at step 2. In addition, the discipline must have actually been issued (and served for suspensions) before the grievance can be filed. Once again, time limits are crucial.

APPEALING DISCIPLINE TO CIVIL SERVICE:

Discipline of 6 days suspension to termination is not grievable but is instead appealed to the Civil Service Commission. This appeal must be filed by the member within the time limits set by the Commission. The member may request representation. Should the Commission believe there is a reasonable question in the case, it will be assigned to a hearing officer, who functions much like an arbitrator, except that his or her recommendation is advisory and subject to acceptance or rejection by the Commission.

REFERENCE DOCUMENTS