A Grievance: What Is and Isn’t
By Katherine Schrier, DC 37 Education Department
The grievance procedure is the heart of any collective bargaining agreement between management and the union. It is the union’s way of disputing an action or a decision of management. Without a grievance procedure a union contract has no life; no means of translating the words on paper to better wages, hours and working conditions.
However, not all work related problems are grievances. For example, if two union members have a dispute on the job, it is not a grievance. This type of problem should be handled through the internal mechanism of the union. A labor-management disagreement over a new work procedure is probably not a grievance. Management has the right to develop new work procedures. Although the union cannot grieve on this issue, it may be raised at a labor-management meeting. (It should also be noted that the impact of new work procedures is a subject for collective bargaining.)
What is a grievance and what should I do as a member of District Council 37 if I feel that management has violated my rights? The second part of the question is easier to answer than the first. If you feel that management has treated you unjustly, and/or you have a problem which should be handled through the grievance procedure, you should seek out your union delegate. They are equipped to answer your questions, and to represent you in a grievance hearing if so needed.
Only after a thorough investigation of the fact of a case, can a delegate make a decision as to whether to handle your problem through the grievance procedure. There are types of grievances. The following is a description of each category:
1. A grievance is when management violates a federal, state, or city law applicable to public employees. Management is not above the law. If your legal rights are violated you may not have to sue or enter any other legal transaction. The courts have ruled that the grievance procedure is a suitable means of solving such disputes. For example, a grievance might be filed under Article XIV (Occupational Safety and Health) of the City Wide contract if management violates an OSHA/PESH Standard.
2. A grievance is when management violates or misinterprets the collective bargaining agreement. The most typical type of grievance is when management abuses the union contract. This may be a black-and-white violation like not giving a shift differential to an employee who works evenings, or it may be a dispute between the union and the city over the interpretation of a contract clause. Remember, the collective bargaining agreement is created by both labor and management. As a result, there are many clauses whose ambiguous or unclear language is the result of a compromise position. In the case of these clauses, the grievance procedure acts as a means of interpreting the contract. For example, your contract states that “wherever practical, an employee shall work five consecutive days, with two consecutive days off.” Suppose your work schedule is Monday, Tuesday, Thursday, Friday, Saturday. Would the fact that your schedule did not give you two days off in a row constitute a grievance? The answer is maybe. Your delegate would have to investigate the case and be able to prove that it was indeed practical for management to give you a five consecutive day work schedule.
3. A grievance is when management has violated its own rules and regulations. As you know, not all working conditions are co-determined through collective bargaining. The city and your individual agency have their own established procedures. When management violates its own procedures there is a legitimate grievance. There is one exception to this rule. Any violation of the rules and regulations of the civil service system cannot be handled through the grievance procedure, but must be handled through the commission’s appeals procedure.
4. A grievance is when management has violated past practice. A past practice is a procedure which has existed for a long time, has occurred often, which is not written down and has not been given up at the bargaining table. If this definition sounds unclear and vague, it is because past practice grievances are probably the hardest to win. Throughout the years, arbitrators have developed a philosophy which recognizes that not all conditions of work are written; that there are certain benefits which employees have enjoyed over the years which are not part of a negotiated agreement nor part of the written policies of management. Since arbitrators have recognized past practices as “real” benefits, they have also recognized the fact that management does not have the unilateral rights to take these benefits away.
5. A grievance is when management has assigned out-of-title work. Like past practice grievances, out-of-title work grievances are very difficult to prove. The thousands of job specifications for employees of the City of New York all have a catch phrase: “and perform related duties.” This phrase makes it difficult to prove that management has assigned you to duties which are improper. To help determine whether these tasks are out-of-title, ask yourself a few questions. Is the task in my job specification? How often am I asked to perform the task? Am I qualified to perform this work? Do others in my title do this work? The answers to these questions will help you and your delegate determine whether you have a legitimate grievance. Out-of-title work is sometimes connected to charges of insubordination. If your supervisor asks you to perform a task which you believe is out-of-title, you must obey their directive and then grieve it. Even if the supervisor is wrong, you can not refuse to perform the work. Your refusal can result in charges of insubordination.
6. A grievance is when management administers a wrongful disciplinary action. The term “the punishment must fit the crime” was first stated by Gilbert and Sullivan in their operetta The Mikado, written in the late 19th century. The term, however, can be applied to grievances dealing with disciplinary matters. If you have been disciplined and your actions do not warrant discipline or the penalty imposed is too severe, you may have a grievance. A problem which falls into this category can be resolved in one of two ways – the grievance procedure or a hearing established under Section 75 of the New York State Civil Service Law. You must, however, choose one of these two options.
Understanding these definitions of a grievance is not intended to make you an expert in this area. The experts are your union delegate and other union officials. If you have a problem which is work related they have the experience and knowledge to help you. Your elected officers are there to protect your interests on the job. You should never seek to resolve a dispute with management without them. Understanding what is and isn’t a grievance, however, will not only help you comprehend your rights on the job, but will help your delegate resolve disputes when they do arise.
Now that you have a general knowledge of what constitutes a grievance, go home and read your contract through a couple of times. Also, obtain a copy of the City’s Personnel Director’s Rules and Regulations and your Agency’s Rules and Regulations and know their content. More often than not, if a grievable matter exists, it will have arisen from a misapplication or misinterpretation of the provisions of one of these writings.
If you believe you have a grievance, what should you do? Your contract sets forth the procedure for processing grievances. Know it and follow it! Consult with your shop steward, grievance chairperson, or chapter president. Please keep in mind that you should make all efforts to comply with the time limitations by which you must file your grievance. Otherwise you run the risk of forfeiting your complaint, no matter how meritorious it is.
Both the City Wide contract and the bargaining unit agreement(s) have specific procedures for filing grievances, time frames for responses, and limitations on awards for certain types of grievances. (For example, the bargaining unit contract limits the monetary award for an out-of-title grievance to the original date of the occurrence only if filed within 30 days of the assignment of out-of-title work.)
The following is the City Wide contract’s time limits for filing grievances:
a) A grievance shall be filed in writing no later than 120 days after the date on which the grievance arose;
b) Any grievance related to the application of the Fair Labor Standards Act shall be filed no later than 60 days after the date on which the dispute rose.
Experience has shown that grievants who seem particularly susceptible to not filing on time are those who claim to be working out of title or in a spot entitled to a differential. These grievants are lulled into a false sense of security by nebulous promises to get them some money. Yet, all too often, the recompense is not forthcoming and precious time as been lost. If you expect to preserve your rights, file!
Additional Information:
Understanding and Defending Past Practices
File an Information Request with Every Grievance