A crucial aspect of a union steward’s role involves handling grievances. This article will delve into what constitutes a grievance, differentiating it from a simple complaint, and exploring the various types of grievances that can arise in the workplace. We’ll also cover the essential steps in investigating and preparing a grievance, ensuring that employee rights are protected and the collective agreement is upheld.
A grievance is essentially a violation of an employee’s rights within their job. These rights can stem from the collective agreement (the contract between the union and the employer) or from employment legislation. It’s important to note that not every complaint qualifies as a grievance; a genuine grievance must demonstrably violate either the collective agreement or a relevant law.
Grievances can arise from the violation of:
- The Collective Agreement
- Federal or Provincial Law
- Established Past Practice
- Employees’ Rights
Understanding Different Types of Grievance Violations
Let’s explore each type of grievance violation in more detail:
Contract Violation
This is perhaps the most straightforward type of grievance. If the employer’s actions directly contravene a specific clause within the collective agreement, it’s a contract violation. Proving such a violation is relatively easy when the contract language is clear. However, if the grievance hinges on interpreting a specific clause, it can be more challenging. In these cases, familiarity with relevant jurisprudence, specifically arbitration decisions related to similar contract language, becomes invaluable.
Violation of Federal or Provincial Law
Employees are protected by various labor laws at both the federal and provincial levels. These laws cover a wide range of issues, including workplace safety, discrimination, and harassment. When an employer violates one of these laws, the employee has options. They can file a grievance through their union, pursue legal action through the appropriate government agency, or even pursue both avenues simultaneously. For instance, if a worker refuses to perform a task they deem unsafe or experiences racial or sexual harassment from management, they can file a grievance. In these situations, the union steward should consult internal union channels, and a decision may be made to file a complaint with the relevant government agency.
It’s beneficial if the union has integrated relevant laws into the collective agreement. Some unions explicitly define violations of provincial laws as grievances within their agreements, streamlining the process for addressing such issues.
Violation of Past Practice
Even if a specific issue isn’t explicitly addressed in the collective agreement, a consistent “past practice” in the workplace can establish certain employee rights. This is particularly relevant when the contract is silent or ambiguous on a particular matter. If management deviates from this established practice, it can form the basis of a legitimate grievance. However, it’s crucial to understand that past practice serves to clarify, not alter, the collective agreement.
To qualify as a valid past practice, certain conditions must be met:
- Repetition: The practice must have occurred repeatedly over a significant period.
- Acceptance: Both workers and management must have explicitly or implicitly accepted the practice. This could be through verbal agreements, written communication, or a lack of formal objection from either side.
- Non-Enforcement: Even if the practice technically violates the contract, neither side has actively demanded the enforcement of that specific contract clause.
A claim of past practice is invalid if these conditions are not met.
Violation of Employee Rights
Similar to past practice, successfully arguing a violation of employee rights requires a strong, well-documented case. These grievances often arise when management treats workers unfairly or unequally. Because these types of grievances are challenging to win, the local union should proactively ensure that employee rights are clearly defined and protected in writing within the collective agreement.
Complaint vs. Grievance: Knowing the Difference
When a union member approaches a steward with a concern, the initial step is to gather the facts. Ask: Does the situation violate the contract, the law, a past practice, or the employee’s rights? If the answer is yes, it’s likely a legitimate grievance.
Even if the issue doesn’t meet the strict definition of a grievance, the employee’s concern warrants attention. Addressing the situation is crucial to clarify the issue or rectify any problems. If the concern doesn’t violate the collective agreement, past practice, law, or employee rights, it’s classified as a complaint rather than a grievance.
Complaints still require resolution. If an employee believes the collective agreement has been violated, explain why it hasn’t. Sometimes, workers misunderstand the contract. For instance, they may believe they’re entitled to vacation pay, but a careful review of the contract reveals they lack the required service time.
A grievance is always directed against management. Therefore, a personal disagreement between two employees doesn’t constitute a grievance. For example, if two workers disagree about whether a window should be open or closed, that’s a personal conflict, not a grievance. The exception to this rule is harassment, which is addressed separately.
Giving the Benefit of the Doubt
In borderline cases where it’s unclear whether a situation is a complaint or a grievance, it’s best to give the employee the benefit of the doubt. Acknowledge that you’re uncertain and seek guidance from the Chief Steward or the grievance committee. After discussing the matter with them, report back to the member. Keeping the member informed throughout the process is essential. Avoid making promises you can’t keep, as this can damage your credibility as a steward.
Types of Grievances
Grievances can be categorized based on their origin and impact. Understanding these categories helps in navigating the grievance process effectively.
Individual Grievance
This type of grievance arises when management’s actions violate the rights of a single employee, as defined by the collective agreement, law, or unfair practice. Examples include disciplinary actions, demotions, harassment, classification disputes, and denial of benefits.
The steward, not the individual member, formally files the grievance. Even if the affected employee is reluctant to file a grievance, the steward should do so on behalf of the union, especially if the contract permits it. This safeguards the collective agreement and protects the rights of all employees covered by it. Management cannot argue that the union lacks the authority to file an individual grievance.
Group Grievance
A group grievance involves a complaint from a group of employees (e.g., a department or shift) who are affected in the same way and at the same time by a management action. For example, if the employer refuses to pay a shift premium to all employees working the afternoon shift, despite the contract entitling them to it, a group grievance is appropriate. When monetary compensation is sought, ensure all affected employees sign the grievance to ensure they receive compensation if the grievance is successful.
Policy Grievance
A policy grievance is a complaint filed by the union alleging that a management action (or inaction) violates the collective agreement in a way that could impact all covered employees. For instance, if management assigns a steady day-shift employee to an off-shift without considering seniority, the union might file a grievance to establish that seniority must be a factor in such assignments.
While individual employees may not be directly affected, the outcome of the policy grievance could set a detrimental precedent for the union in the future. Stewards typically provide investigative support for policy grievances, which are usually filed at the local or national union level.
Union Grievance
A union grievance involves a dispute directly between the union and the employer. For example, the union would file a grievance if management failed to deduct union dues as specified in the collective agreement. In these cases, the union believes its own rights, not just the rights of individual members, have been violated.
Investigating a Grievance: Getting the Facts Straight
Settling grievances is a critical function of a steward’s role. While it might seem daunting, it primarily requires common sense, courage, and a systematic approach.
Gather the Facts
When an employee approaches you with a complaint, prioritize gathering all relevant information. This will help determine whether it constitutes a legitimate grievance. Listen attentively to their account and ask specific questions to clarify the situation.
Remember the “6 Ws”:
- Who
- What
- When
- Where
- Why
- Want
Avoid accepting vague statements. Probe for details to obtain all necessary information. Sometimes, members assume you have more knowledge about the situation than you do, including the facts of their complaint.
Obtain a Written Statement
Once you have a general understanding of the situation, initiate a prompt investigation. Have the grievor write a detailed account of the events, including names, dates, and locations. Advise them to use direct quotes when recounting conversations. The precise wording can be significant. Ensure the grievor signs and dates the statement, as it will serve as a valuable reference point later in the process.
Seek Permission
If your contract requires you to obtain permission from your supervisor before leaving your work to investigate a grievance, adhere to this requirement. Upholding the collective agreement is your duty, and disregarding your supervisor’s authority will not facilitate winning grievances.
Collect Witness Statements
Obtain signed and dated statements from all available witnesses. Interview both witnesses who support the grievor’s account and those who don’t. This will provide a more complete picture of what occurred and help you anticipate potential challenges.
Document Everything
After completing your investigation, create a written record to ensure that key details are not forgotten or distorted as the information is shared.
Exercise Patience
Significant time may pass between the events leading to a grievance and its final resolution through arbitration.
Identify the Responsible Party
In most cases, management is the responsible party. Investigating a grievance is akin to solving a detective story. You must carefully examine all the evidence to determine who did what. Treat every investigation and grievance as if it were headed to arbitration, as this will ensure you’re adequately prepared if it does.
Even if the matter doesn’t proceed to arbitration, a statement of facts can be valuable when preparing future bargaining demands.
Conclusion
Understanding what constitutes a grievance, the various types of grievances, and the proper procedures for investigation and resolution are crucial for union stewards and employees alike. By adhering to the collective agreement, understanding relevant legislation, and following a systematic approach to grievance handling, workplaces can ensure fairness, protect employee rights, and foster a more positive and productive environment.
