Human Resources Management For Rey Writer Only

Chapter Fourteen

Contract Administration

After a contract is negotiated and ratified, the parties are bound by its terms. But contract clauses may be violated or interpreted differently, so disputes often arise. Almost all contracts contain a grievance procedure to resolve intracontractual disputes. This chapter identifies types and causes of disputes and the contractual means used for resolving them.

As noted in Chapter 13 , team-based work designs have reduced the use of first-line supervisors. In these types of work situations, grievances or problems in implementing the contract are increasingly resolved within the work team in consultation with management.

In reading this chapter, keep the following questions in mind:

1. What areas of disagreement emerge while the contract is in effect?

2. What actions by the parties violate the labor acts?

3. Are disagreements resolved by bargaining or by evaluating the merits of a given issue?

4. How can team-based work environments lead to proactive grievance procedures?

5. What does the union owe individual members in grievance processing?

THE DUTY TO BARGAIN

Parties do not end their obligation to bargain by negotiating an agreement. The National Labor Relations Board (NLRB) and courts interpret the duty to bargain as covering the entire relationship from recognition onward. Although the parties have developed a written agreement, there may be situations in which they interpret it differently. There also may be differences about the creation and implementation of rules that are enabled by the contract but not actually within it. In order to establish an orderly process for handling intracontract disputes, the parties virtually always incorporate a grievance procedure that spells out how they will Page 463be resolved. Thus, the duty to bargain is fulfilled by using the agreed-on steps for any dispute regarding wages, hours, or terms and conditions of employment.

Conventional Contract Administration

Management takes the initiative in contract administration. It determines how it will operate facilities and discipline employees. The union reacts if it senses a result is inconsistent with its interpretation of the contract and work rules. The employer does not file a grievance when the union or a worker allegedly violates the contract; it simply acts and waits for a union response. For example, if a worker swears at a supervisor, the company might suspend the worker for five days. The company does not ask the union to discipline its members. If the union believes the discipline is unjust, it protests the action through a grievance. The contract spells out the resolution process, and the management decision stands unless and until it is reversed or modified at some step in the overall process.

When a grievance procedure exists and management changes its operations, employees are expected to conform to the change. If employees believe the change violates the contract, they must grieve rather than refuse to follow orders. If the latter occurred, employees could be discharged for insubordination unless their conduct constituted protected concerted activity.

Empowered Work Environments

Many empowered production work environments have developed self-managed work teams. Teams do not have the authority to adjust grievances within the teams. However, they may raise problems with management without making a formal grievance and use their ongoing access to management to identify the likely causes of problems and to more quickly solve them. While this reduces the formal role of the union negotiating committee in resolving grievances, a team member at a Ford stamping plant felt that the team-based approach actually increased the relevance and input of the union. 1

ISSUES IN CONTRACT ADMINISTRATION

Disputes during the contract may focus on specific contract clauses or the implementation of rules by the employer that are within the purview of the management rights clause. Following are some of the major subjects of grievances.

Page 464Discipline

Discipline imposed for infractions of rules is one of the most frequently disputed issues. Discipline often involves demotion, suspension, or discharge and is meted out for absenteeism, insubordination, dishonesty, rule violations, or poor productivity. Rule violations include issues such as substance abuse and sexual harassment. A discharge almost always leads to a grievance, regardless of its ultimate merit, because political solidarity often requires that the union extend itself in trying to save a member's job.

Discipline is imposed for violations of employer rules. Employees must be aware of the rules to be able to conform to them. Employers use discipline to deter employees from behavior that would damage the employers' performance. Before employers can impose discipline, they must observe employees behaving unsatisfactorily and violating rules. The employer must decide whether violations are important enough for action to be taken. If violations exceed the threshold for requiring punishment, discipline is imposed. 2 Unions want to verify that employers, when imposing discipline, have reliably observed the unsatisfactory behaviors and have consistently applied similar penalties in similar situations and that the magnitude of the penalties is commensurate with the violations.

When an employee has repeatedly breached rules and been disciplined and the employee's behavior does not change, employers and unions may implement a last chance agreement (LCA) in an attempt to save the employee's job. In return for not discharging the employee for the most recent offense, the employer, union, and employee draw up a written agreement stipulating that if another violation of the same rule occurs within a specified time period, the employee will be discharged automatically and the union will not grieve.

An LCA might be negotiated, unilaterally imposed by the employer and not grieved by the union, or it may be included in an arbitrator's decision at the final step. LCAs save union resources on having to defend members who chronically violate rules. A study of LCAs found that the largest number involved absentee/tardiness problems (possibly resulting from drug or alcohol abuse). Employees for whom LCAs had been implemented were more likely to be discharged in subsequent years, but a majority was able to avoid discharge. Married and older employees, nonminorities, and higher-wage employees were more likely to remain employed. 3

Incentives

A contract may have an incentive scheme whereby employees are paid by the piece or receive bonuses for productive efficiency. Frequently, these contracts establish groups of jobs that work on incentive rates and identify others that don't. If an employee is moved from an incentive job to a nonincentive job, wages will probably decrease. If the job seems highly similar to the incentive job, grievances may result. A grievance might also result if the assignment is considered arbitrary or punitive. Problems also may arise if a new production process is introduced and management seeks to establish higher base rates or time standards before incentive earnings begin. New standards must be bargained collectively.

Work Assignments

Disputes may occur over which job classification is entitled to perform certain work. For example, assume that an electrical generating plant using coal-fired boilers to generate steam shuts down a boiler for rebricking. To do this, a wall has to be knocked down with some care to avoid damage to other boiler parts. Who should do the work? General laborers might do the work under a supervisor's direction. But the work requires some care and is preparatory to rebricking, so the job might be assigned to skilled masonry workers. The company may assign the job to helpers because the cost is less and it believes the skill requirements are low. But masons may believe the task is an integral part of their job and thus grieve.

Individual Personnel Assignments

Personnel assignment grievances most often concern promotions, layoffs, transfers, and shift assignments. Most contracts specify that seniority, seniority and merit, or experience on a particular job will govern personnel assignments. Disputes often relate to layoffs and shift preference. People who are laid off may believe they are entitled to jobs of junior workers in other departments who have been retained. While contracts normally specify that employees must be qualified for a job, if a junior employee is bumped by a senior employee, there may be a dispute regarding whether the senior employee actually possesses the claimed qualifications.

Hours of Work

Hours grievances involve overtime requirements and work schedules. For example, if the firm has maintained an 8 a.m. to 4 p.m. shift to mail customer orders, and its freight company moves its shipping schedule from 4 p.m. to 3 p.m., then a 7 a.m. to 3 p.m. shift better meets its needs. This change will affect employees, and grievances may result.

Page 466Supervisors Doing Production Work

Most contracts forbid supervisors to perform production work except when demonstrating the job to a new employee or handling an emergency. An employee's absence is usually not considered an emergency. This is basically a job security issue.

Production Standards

Employers and unions often agree on output rates in assembly-line technologies or standards for incentives in piece-rate output. If management speeds up the line or reengineers the standards, employees must put forth more effort for the same amount of pay, and grievances often result.

Working Conditions

Working-condition issues involve health, safety, and comfort concerns. This is one of the few areas in which employees might be justified in unilaterally refusing a work assignment they have a valid reason to believe could lead to injury. Arbitrators who hear cases involving grievances against discipline for refusing to perform unsafe work tended to rule narrowly when upholding a worker's right to refuse. They tended to rule for an employee if there was no insubordination, if there was a major danger or reasonable cause to believe that there may have been, if the employee has been loyal, if the employee reported the danger, if the manager was at fault, or if the manager was not at fault but did not respond to the identified problem.4

Subcontracting

Unless the contract allows complete discretion to the company in subcontracting, work done by bargaining-unit members may not be subcontracted before bargaining with the union.5 Subcontracting can affect job security, and if grievances result, management would be involved in a refusal to bargain if it did not discuss the subcontracting issue.

Page 467Outsourcing

Outsourcing is a form of subcontracting. In this case, part or all of certain processes are subcontracted to another employer that may or may not operate on the current employer's premises and may or may not hire some or all of the current employer's employees who work on that process. An example of this might involve outsourcing call center work currently done by bargaining-unit members to another firm with employees in India.

Past Practice

Many employment practices are not written into contracts, but unions consider them to be obligations. For example, an employer may provide cafeteria food services below cost to workers. If the cafeteria is closed, the union may grieve even though there is no contract language on food services, and management must respond.6 If stopping work 15 minutes before the end of a shift to wash up is usual practice, then extending working time to the shift's end changes past practice.

Rules

Employers occasionally institute rules to improve efficiency or to govern the workforce. Many contracts establish the employer's right to do so under the management rights clause. Employees may grieve the establishment of rules as altering a term or condition of employment.

Work rules relating to smoking, drug testing, and sexual harassment have the potential to create divisions within the bargaining unit depending on employee attitudes and how the rules are implemented. While a large majority of union members questioned in one survey approved of limited drug testing, those who were subject to testing were more negative about probable cause testing, random testing, and terminating those who tested positive.7

Prevalence of Issues

Grievances are filed over a number of issues, as noted previously. A study of four organizations in different industries found that the seven largest grievance categories were distributed as follows: pay (17 percent), working conditions (16 percent), performance and permanent job assignments (16 percent), discipline (14 percent), benefits (14 percent), management rights (7 percent), and discrimination (6 percent).8

GRIEVANCE PROCEDURES

Most contracts specify procedures for resolving intracontract disputes. While contracts vary, most procedures contain four or five steps. In the absence of a grievance procedure, the employee is still entitled to file grievances individually under guarantees contained in Section 9 of the Taft-Hartley Act. Individual employees may also file grievances if the contract has such a procedure, but they generally do not, depending on which union represents them.

Steps in the Grievance Procedure

The usual steps in the grievance procedure are as follows.

Step 1

This step varies considerably across companies. In some, an employee who believes the company has violated the contract complains to the union steward, who may accept or assist in writing up a grievance. Then the steward presents the grievance to the grievant's supervisor, who has the opportunity to answer or adjust it.

In some companies, few grievances are settled at step 1. The company won't delegate power to supervisors because their decisions can establish precedents for future grievance settlements. Thus, supervisors often simply deny grievances at step 1. In other companies, an oral grievance is presented directly to the supervisor, and settlements can be negotiated immediately. (Figure 14.1 is an example of a fairly complex grievance at its first step.)

Supervisory style affects grievance rates and their disposition. In a large manufacturing plant, autocratic supervisors had fewer grievances overall and fewer overtime, supervisor-related, and discipline grievances than did democratic supervisors. Higher management was less likely to reverse grievance decisions for autocratic supervisors.9 But supervisors and stewards usually do not understand the contract well. Stewards may have more knowledge of the contract if they are experienced and contract administration is their full-time job. About 7 of 10 grievances examined in one study were screened by stewards, and about half of these stewards used their authority to adjust grievances. Steward training is equally likely to be provided by the employer or the union.10

Presenting grievances in an informal oral manner may allow supervisors and stewards greater latitude for reaching a quick solution before a written record is established. One study found that supervisors, stewards, union leaders, and top management favored moving toward oral grievances and away from written ones but ultimately failed due to opposition from plant managers who felt their authority was undermined.11

Several levels of activity may lead to filing grievances. Stewards may act on complaints from members. A large-scale study of Canadian bargaining units found that stewards reported more complaints from members if the supervisor had little knowledge of the contract and if the work unit was relatively larger. Informal grievance resolution was related to the supervisor's knowledge of the contract and the steward's commitment to the employer, education, and training. The likelihood of a steward initiating a grievance when a union member declined to do so or when the steward observed a contract violation and filed on behalf of the group increased if the supervisor used a considerate supervisory style and had little contract knowledge. It was positively related to union commitment and a contested vote in the unit for the steward's position and negatively related to employer commitment. Grievance rates were related to many of these same factors but were reduced by informal settlements and increased by steward initiation. Steward and supervisor behavior was a more important predictor of initiation and settlement than were workplace characteristics.12

Page 470Stewards are generally more satisfied in their grievance processing roles if the procedure permits oral grievances and if some grievance committee screening takes place. Dissatisfaction is related to high grievance rates and large work groups. Satisfaction is higher if a larger proportion of grievances are resolved, and resolved successfully for the grievant.13

Step 2

Many grievances are settled at step 1. If denied there, the steward presents the grievance to a plant industrial relations (IR) representative. Both are very familiar with the contract, and both are aware of how previous grievances have been settled. In routine cases, the company allows the IR representative to apply and create precedents. If a grievance has major precedent-setting implications or involves potentially major costs but may have merit, the IR representative may deny it. If the case involves an employee discharge, the union is likely to send it to step 3.

Step 3

Most grievances have been settled by step 2. The step 3 participants vary depending on the contract. The grievance may be settled locally, with the union represented by its local negotiating committee and management by its top IR manager or plant manager. In more complex situations or in larger firms, the parties may be an international union representative with or without the local negotiating committee and a corporate-level IR director. Most unresolved grievances are settled at this stage.

Step 4

When a grievance is unresolved at the third step, the parties submit the dispute to an arbitrator who hears evidence from both sides and renders an award. A number of methods are available for choosing an arbitrator. First, the parties may name a permanent arbitrator (umpire) in their contract. Second, they may ask a private agency, such as the American Arbitration Association, for a panel of arbitrators. A panel has an odd number (usually five) from which each party rejects arbitrators in turn until one remains. The remaining person becomes the arbitrator unless one party objects, in which case a new panel is submitted. Third, the same process may be followed by petitioning the Federal Mediation and Conciliation Service, which also supplies panels of arbitrators listed by the agency. A hearing date is set, and the arbitrator renders an award some time after the evidence is presented. Chapter 15 examines arbitration as a separate topic. Figure 14.2 is an example of a contract clause dealing with grievance handling.

The operation of the grievance procedure is very important to local union leaders. Between negotiations this is the area in which the union and employer are most engaged and where “wins” and “losses” may be politically critical for current officers. Satisfaction of union leaders with the process was positively related to autonomy and the proportion of grievances resolved and negatively related to the size of the unit. Satisfaction with the step 1 process was negatively related to unit size and the rate of grievances and positively related to the importance of issues and early settlement. Satisfaction with the step before arbitration was positively related to issue importance and resolution rate and negatively related to the size and proportion of women in the bargaining unit. Satisfaction with outcomes was positively related to the importance of the issues, the resolution rate, and the union success rate and negatively related to size of the unit and cost.14

Grievance rates in unionized employers probably run about 10 per 100 employees per year. Of each 100 grievances, between 0.5 and 2.5 require arbitration for resolution.15 About half of all written grievances are settled Page 472at step 1, 60 percent of open grievances at step 2, and 80 percent of the rest at step 3.16 Higher-level settlements are associated with the requirement of written grievances, rigid procedural rules, larger bargaining units, adversarial bargaining relationships, low costs, and low supervisor and steward knowledge of the contract.17 One study of several employers found that settlement at the first step is higher with written grievances and authorization by management and/or the union to allow supervisors and/or stewards to settle at the first step. Settlement before arbitration is higher where units are larger and where more grievances are filed.18

Grievances may be granted, denied, partially granted, or withdrawn at any step in the process. A study of grievances in a Canadian firm found 46 percent were denied, 36 percent partially or fully granted, and 18 percent withdrawn at the first step. Of those proceeding to the second step (which could include some of those partially granted at step 1), 62 percent were denied, 24 percent partially or fully granted, and 14 percent withdrawn. At step 3, 4 percent were partially or fully granted, 80 percent denied, and 16 percent withdrawn. Prior decisions on a particular type of grievance reduce that type's submission for a period of time.19

Time Involved

Generally, speedy resolution of grievances is preferred. Typical contracts allow 2 to 5 days for resolution at the first two steps and 3 to 10 days at step 3. If management denies a step 3 grievance, the union has 10 to 30 days to demand arbitration. If the union does not make a timely demand, the dispute may no longer be arbitrable. If arbitration is demanded, the time frame is less rigid because a panel must be requested and received, an arbitrator selected, hearing dates arranged, the hearing held, and a final award written and rendered. While an unresolved dispute could conceivably be arbitrated in two months or less, the time lapse is usually considerably longer. (See Chapter 15 for information on the length of the entire process when a grievance goes to arbitration.) One study found the average grievance was settled in between 10 and 14 days.20 Settlements take longer where bargaining units are large, the union requires written grievances, both parties follow procedures closely, an adversarial bargaining relationship exists, and a supervisor's contractual knowledge is low.21

Most contracts rely on a four-step procedure, settlement rates are higher in steps 2 and 3, contractual procedures and time schedules are closely followed, and few differences exist in filing periods when disciplinary and other contractual grievances are compared.22 Figure 14.3 presents the flow of decisions in a typical grievance process.

Page 474METHODS OF DISPUTE RESOLUTION

Intracontract disputes not resolved through the prescribed steps in the grievance process are generally resolved by arbitration (see Chapter 15). As noted, arbitration is used sparingly by both parties because the process is costly (particularly for the union in a relative sense) and often involves a substantial time lag between the grievance and its resolution. Strikes may be used by the union to pressure management to grant requested relief, but only in situations where a no-strike clause has not been negotiated. Strikes are most likely where time is of the essence. Unions in the building trades seldom avail themselves of arbitration due to the short periods their members work for a given employer. By the time a grievance is arbitrated, the job would be completed, the employer having dictated the working conditions.

The same holds for safety and working-condition grievances in which stable employment relationships exist. When these conditions occur, the union may use a strike to force the employer to interpret the contract as the union demands. With a contract in effect, these strikes may or may not be breaches of the agreement if it contains a no-strike clause.

Project Labor Agreements

Recently, building trades unions and contractors have often negotiated project labor agreements (PLAs) prior to bidding on major projects. PLAs cover pay rates, hiring procedures, work rules, and the like, that will apply to a specific project during its duration. A PLA also includes dispute resolution procedures, and, per the agreement, unions agree to forgo strikes during its term.23

Grievance Mediation

An experiment in the mediation of grievances found costs and time to settlement were reduced by using a mediationlike process to deal with contract disputes. Grievance mediation tends to shift the focus from a “rights” (who wins) orientation toward a problem-solving mode. In the experiment, a large share of the grievances headed for arbitration were settled with the help of mediation. The union was highly satisfied with mediation, especially if it believed that the mediator understood the grievance. Mediation may allow the parties to uncover and deal with the real reason for the conflict rather than requiring that the conflict be framed as a specific contract violation. Mediation did not increase the likelihood of settlements at lower levels and was not used for discharge grievances or those involving financial claims of more than $5,000.24 Page 475A follow-up study of grievance mediation in coal mining found that about 85 percent of mediated grievances were resolved at an average third-party cost of $500 versus $2,674 for arbitration.25 Recently, a further follow-up study was done on almost 23 years of experience with grievance mediation in coal mining. General findings indicated that 86 percent of cases potentially headed for arbitration were settled through mediation at substantially lower cost and much more quickly. In addition, the parties learned how better to resolve grievances at lower levels because they learned more about the interests of their opposite number in grievances and grew in their beliefs about the trustworthiness of information supplied by their counterpart.26

In a utility setting where suspension and discharge grievances were included in grievance mediation, managements were equally satisfied with mediation and arbitration processes but not with the settlements when mediation was used. About two-thirds of all final-step grievances were settled by mediation; thus, the number going to arbitration was cut to one-third. But the overall rate of grievances did not decline as a result of mediation.27 Evidence from one plant indicates that mediation is unrelated to “win” rates of management or the union.28

Wildcat Strikes

If a no-strike clause coupled with the opportunity for binding arbitration has been negotiated, a strike during the agreement period is a wildcat strike because it violates the contract and is unauthorized by the parent national union. Wildcats are particularly prevalent in coal mining.29

Research on the characteristics of wildcat strikes in coal mining found that high-strike mines were larger than low-strike mines, perhaps reflecting the increased formality of grievance handling in large mines. Working conditions were not related to wildcat strikes, but supervisory friction was. Strikes were higher where miners perceived supervisors as being unable to handle grievances and in mines where disputes could not be dealt with locally. Confidence in the grievance procedure did not relate to strike incidence. Miners at both high- and low-strike mines believed Page 476strikes resolved disputes in the miners' favor, but high strike incidence rates appeared related to perceptions that this was the best method for getting management to listen.30

When companies agree to submit unresolved grievances to arbitration, they are giving up some of their freedom to initiate change. As a quid pro quo, they usually demand and win a no-strike clause. In that case, the union agrees not to strike during the term of the contract, because it has an arbitral forum available. But what if the union strikes? Does the company have a legal recourse? The Norris-LaGuardia Act prohibits injunctions against lawful union activity, which includes strikes. However, the Supreme Court ruled that where a bona fide no-strike clause exists, a grievance procedure terminating in arbitration is available, and the union has not sought to arbitrate its dispute, federal courts could enjoin a wildcat strike.31

Discipline for Wildcat Strikes

What tools do employers have to counteract a wildcat strike? First, if the strike was over an unfair labor practice and the union correctly judged that the practice was illegal, the strike would be protected and the employer could not legally retaliate. But if the strike was in violation of a no-strike clause, several factors would come into play.

Both the national and local unions participate in ratifying an agreement. They have a joint responsibility for enforcing it. Unfortunately for management, little can be gained in damages unless a union's leaders clearly fomented a wildcat strike.32 However, if a union demands that its members return and they fail to obey, they are subject to union discipline as well as to employer retaliation. But employers cannot sue individual union members for breach of contract for violating a no-strike clause.33 Where a union defies an injunction to return to work, it may be found in contempt of court and fined.34

EMPLOYEE AND UNION RIGHTS IN GRIEVANCE PROCESSING

One important grievance issue concerns an employee's right to union representation in disciplinary proceedings. For example, if a supervisor suspects an employee of leaving work early, which normally merits a suspension, can the supervisor confront and interrogate the employee without allowing union representation? The Supreme Court ruled that members of the bargaining unit who are suspected of offenses that could result in discipline are entitled to union representation if they Page 477request it.35 The employer cannot proceed with the interrogation unless a union steward is present to advise its member. However, neither union nor nonunion employees are entitled to legal counsel during an employment investigation by the employer.36

To What Is the Employee Entitled?

Not every grievance constitutes a bona fide contract violation, and not every legitimate grievance is worth pursuing to arbitration. For example, suppose a supervisor performed bargaining-unit work during a short-term peak production period. The union may have a legitimate grievance with workers entitled to be paid for the period the supervisor worked. If it is an isolated incident, bringing it to management's attention should reduce the likelihood of its recurrence, even if management denies the relief requested. The importance of individual cases varies. For example, a discharge is more serious than a claim of entitlement to two hours' pay for overtime given to another employee.

How far can an individual union member pursue a grievance or force a union to process it through arbitration? This subject is not entirely resolved, but opinions of legal experts and court discussions provide some direction. The issue is referred to by terms such as individual rights and fair representation. In the discussion, the latter term is applied to the vigor and equality of the union's advocacy, not necessarily its competence. (The competence issue is covered in Chapter 15.)

Occasionally a union activist receives harsh discipline for a rule violation. If the individual charges the company with an unfair labor practice (ULP), the NLRB applies the following test: There must be a prima facie case that the discipline was motivated by the employee's union activity. Then the employer could rebut a ULP charge if it can show the same punishment would have occurred in the absence of union activity.37

Fair Representation

Fair representation is a complex issue in which the rights and duties of those involved are not completely spelled out.38 All employees, represented or not, are able to seek legal redress for employer actions violating Page 478civil rights, wage and hour, or health and safety laws; but in other areas, unrepresented employees have no legal right to review an arbitrary decision.

Individual Rights under the Contract

Several decisions clarify individual rights under collective bargaining agreements. Major decisions before Taft-Hartley helped to specify minority rights in grievance processing. In Elgin, Joliet, and Eastern Railway v. Burley, the Supreme Court held that the concession of a grievance by the union does not necessarily insulate the employer from being sued.39 The employees must have authorized the union to act for them, and some vigorous defense must be shown. Because the union is the exclusive bargaining agent for all employees, the courts will watch to ensure that all classes and subgroups are entitled to and receive equal protection and advocacy from their representatives.

Taft-Hartley enables represented employees to grieve directly to employers. However, employers cannot process grievances without union observation, if demanded by the union, or adjust the grievance in a manner inconsistent with the contract. For example, if the contract entitles senior employees to promotions, a junior employee cannot personally insist on receiving a promotion to which a senior employee is entitled.

Individual rights under the contract are not clearly established. Three possible positions might be suggested: (1) Individuals have a vested right to use the grievance procedure through arbitration if they choose; (2) individuals should be entitled to process grievances for discharge, seniority, and compensation cases; and (3) the union as a collective body should have freedom to decide what constitutes a meritorious grievance and how far the grievance should be pursued.40

The NLRB and courts seldom assert jurisdiction over the merits of grievances. But a few rulings help explain employee entitlements and employer and union responsibilities. In Miranda Fuel Company, an employee was permitted to start vacation before the date in the contract.41 After a late return caused by illness, other bargaining-unit members demanded that the union require his discharge. The NLRB ruled this was an unfair labor practice because the union acquiesced to the majority even though the discharged employee had seniority. The second case involved a merger.42 Here the same union represented employees of both acquired and surviving companies. After the merger, the union credited the seniority of the workers from the acquired company rather than starting at the Page 479acquisition date. Several employees from the surviving company claimed they were unfairly represented because their union granted seniority to employees coming from the other firm. The Supreme Court held the employees must use Taft-Hartley remedies for breach of contract rather than using state courts to redress unfair representation.

In Vaca v. Sipes, an employee returning from sick leave was discharged because the employer believed he was no longer capable of holding a job.43 He filed a grievance and the union pressed his case, obtained medical evidence, and requested he be given a less physically demanding job. Doctors' reports conflicted on whether the employee could safely continue working. Although the union vigorously pursued the grievance through the final step before arbitration, it did not demand arbitration when the company refused to reinstate the grievant.

The grievant sued his union for unfair representation and his employer for breach of contract. The court held an employee may not go to court on a grievance unless contractual remedies have been exhausted, except where the employer and/or the union have refused to use these remedies. If the grievant contends that the union has unfairly represented the employee, he or she must prove this. The court found that individual bargaining-unit members have no inherent right to invoke arbitration. In representing all bargaining-unit members, the union is both an advocate and an agent that must judge whether claims are frivolous or inconsistent with past practice or contract interpretation. If the union weighs the grievance's merit and treats the grievant similar to others in the same situation, then the representation isn't unfair.

An appeals court decision can place the union “between a rock and a hard place.”44 In this case, the contract provided that promotions would be based on seniority and merit. When the company promoted junior employees, the union processed grievances of senior employees to arbitration. The arbitrator awarded the senior employees the jobs. The displaced junior employees sued their union for failing to represent their positions in the arbitration. The court held that the union owed equal obligations to both groups. Although the union certainly favored seniority as the basis for promotion, it must advocate management's position as well because the contract provides benefits to two potential groups with opposite interests.

Another case extends union liability for damages. If an employee can prove the employer violated the contract to the employee's detriment and the union dealt with the grievance in an arbitrary and capricious manner, the employee can collect damages from both. The employee Page 480collects damages from the employer up to the point at which the union fails to process a meritorious claim and from the union until relief is granted.45

Supreme Court decisions on fair representation yield the following six principles: (1) Employees have the right to have contract terms enforced to their benefit; (2) an employee has no right to insist on a personal interpretation of a contract term; (3) no individual can require that a union process a grievance to arbitration, but each should have equal access to grievance procedures; (4) settlement on the basis of personal motives by union officials constitutes bad faith; (5) the individual should have a grievance decided on its own merits, not traded for other grievance settlements; and (6) while the union is entitled to judge the relative merit of grievances, it must exercise diligence in investigating the situation that led to the grievance.46

GRIEVANCES AND BARGAINING

As noted in the chapters on union structure, organizing, and negotiating, the processes involved can be specified, but the actual behavior does not always duplicate the model. The grievance procedure, as described, provides a method for resolving intracontract disputes. The model consigns the union to the role of responding to management's actions. Grievance resolution has been dealt with as a serial process, from both the steps involved (which duplicate reality rather closely) and the presentation order (first in, first out, which is unlikely). This section looks at grievances from a political standpoint and as a bargaining tool.

Union Responses to Management Action

Grievances have a number of ramifications for the union. A novel grievance may establish a precedent for or against the union if it is arbitrated. A situation may have been handled informally on a case-by-case basis, usually favorably for the union, so the risks of pursuing it may be too great. Other grievances may lead to internal union disputes, such as entitlements to work or overtime. Politically powerful minorities within the union may need to be accommodated. Upcoming elections may influence grievance activity resolution rates. Candidates may be more militant, and management may grant less relief or take more time, particularly in areas where a candidate it would like to see defeated is leading the advocacy.

Page 481Besides the responses of union officials, rank-and-file members may engage in tactics affecting the grievance process. If a large number of grievances builds up, or if settlement is slow (particularly for those alleging a continuing violation), then pressure tactics such as slowdowns, quickie strikes, and working to rules may be used to pressure management to settle or grant the grievances.47 Grievants might not wait passively for an ultimate response but rather may use tactics to speed a favorable settlement.

Evidence indicates the union gains bargaining power by shaping employee complaints so that they fit a clear grievance category. At the same time, the union is more successful in winning its grievance if the category is different from one particularly important to the employer.48

Fractional Bargaining

Because most grievances concern an individual employee or a single work group and relate only to one or a few contract terms, tactics aimed at modifying the way the contract is administered are called fractional bargaining. 49 Fractional bargaining affects an establishment in the same way that an employer with multiple bargaining units suffers a reduction in bargaining power. An organization consists of interdependent parts, and if one part is embroiled in disputes that lessen its productivity, it will affect the remainder.

Fractional bargaining occasionally poses problems for the union because one critical group may win grievances that others fail to achieve. If a negotiating committee stops grievances of a powerful small group, internal political pressures increase. A steward of a powerful small group may successfully pressure for settlement at lower levels to avoid local officer involvement. The company may accede to lessen chances of production disruptions.

Management may also take the initiative by treating political opponents of the existing union leadership differently and by handling some disciplinary cases by the book and being lenient with others. These practices may increase internal political pressures and cause more of the union's energies to be devoted to healing such rifts rather than to engaging in additional grievance activity. Thus, as in contract negotiations, each side pressures the other, but some mutual accommodation that enables both to survive is usually reached.

Union Initiatives in Grievances

The union may take the initiative with grievances. Stewards may solicit grievances looking for potential contract violations.50 A violation does not actually need to occur to file a grievance; there need be only the belief that Page 482one did occur and a linking of that belief to some contract clause. If the union believes it has problems with one area or supervisor, it may simply flood management with grievances. These create work for management because they must be answered in a certain time frame under the contract. If higher management has to spend more time on grievances, it may simply tell supervisors to “clean up their act,” which usually results in a more lenient approach to demonstrate to management that supervision has “cured” the grievance problem.

Union stewards may stockpile grievances as threats or trade-offs for larger issues. If an issue of importance to the steward comes up, the supervisor may be told informally that unless a change is made, a number of grievances will be filed with higher-ups later in the day.

In large plants, the steward has an advantage over the supervisor. Many contracts allow the steward to be a full-time union representative, although the steward is paid by the company. As such, a steward's full-time work involves contract administration, while the supervisor is responsible for personnel, equipment, production, and other matters.

The steward's personality may also play a role in grievance resolution. One study found that stewards who informally settled grievances with supervisors were likely to have higher needs for autonomy, affiliation, and dominance than those who used formal processes. The study also found that stewards who had higher needs for achievement and dominance were involved in greater numbers of grievances.51 Higher commitment to the union predicted higher grievance activity levels, while higher company commitment and job satisfaction were related to lower grievance activism.52

Higher grievance rates are related to inexperienced stewards, union policies that influence grievance filing, and periods close to negotiations or political choice within the union.53 A longitudinal study of an auto plant with a single UAW local found that grievances with high factual clarity were decided for the union more often when they occurred during periods of high production importance, such as during model changeovers and heavy schedules; when few grievants were involved; when the steward was politically entrenched; and when they occurred in nonassembly plants. In cases where grievances had low factual clarity, political issues had more effect, such as the shorter the time until the next union election, the lower the settlement rate; the more the grievances, the lower the union win rate; the more likely the grievance claimed a right given to another bargaining-unit member, the lower the union win Page 483rate; and the more entrenched the steward, the lower the win rate. Other factors involved with low-clarity outcomes for the union included high-production pressure situations and skilled-trades occupations.54 All these indicate management's response could be seen as pressuring the union politically and facilitating the production process.

Management practices also have an influence on grievance rates. A study of grievances and productivity in an aircraft manufacturing plant found that highest productivity occurred at a grievance rate significantly above zero. Very low grievance rates might indicate less monitoring and enforcement by management, while high levels consume extra effort in their settlement.55

Political competition within a local union may also affect labor relations and contract settlements. A comparison of internal democracy in two UAW locals in aircraft manufacturing found that the one that had well-developed internal political “parties” and frequent changes in local leaders also had better contract settlements but more strikes. The economic gains came at the cost of lost wages during strikes and also through the firm's greater use of subcontracting.56

Stewards are often elected. Grievance handling influences the election process. Stewards who file more grievances, who resolve them at lower levels, and who take more time with them are more frequently reelected, with higher margins. As the relationship between supervisors and stewards matures, the process becomes more efficient and effective.57

Individual Union Members and Grievances

Employees unionize to exercise a voice in governing the workplace. The negotiation and ratification of a contract by the bargaining unit create an employment equilibrium. This equilibrium reflects the bargaining power of both parties and their preferences for the structure of the agreement. In grieving, an individual member exercises a voice to express dissatisfaction or to take advantage of an opportunity for gain that a specific situation, such as increased production rates, might allow. Workers in high-paying jobs or those with few alternative job opportunities are more likely to use the grievance process and less likely to be absent or quit.58 The strength Page 484of the grievance procedure influences the beliefs that employees have about their ability to influence outcomes within their employers since quit rates, in one study, were negatively related to the strength of the grievance procedure.59 Figure 14.4 portrays a model of the grievant's choices and potential outcomes. Some grievance opportunities occur because of workplace changes or actions taken against the grievant. The model suggests that negative outcomes will occur to the employee and employer unless the process leading to the ultimate outcome is perceived to be procedurally just.60

Differences exist among employees in grievance behavior and characteristics. Demographic and job-related aspects are generally poor predictors of grievance activity,61 although evidence finds that younger,62 male,63 minority,64 and better-educated employees65 have higher grievance rates. An attitudinal study examining employees across many employers found that grievants were more likely to have lower job satisfaction, have higher satisfaction with the union, and be active participants in union affairs.66 Another study using the same sample found that employees who filed more grievances had declining job satisfaction during the four years between the waves of the study, were in larger plants, perceived themselves as expending lower effort, and anticipated working for the same employer in five years. Factors relating to perceived union effectiveness, poor or changing working conditions, or the openness of the supervisor did not influence grievance-filing behavior.67 An experimental study using a hypothetical situation found that union members were more likely to indicate they would file grievances when the situation evoked strong reactions and when management's action was perceived to be intentional.68

EFFECTS OF GRIEVANCES ON EMPLOYERS AND EMPLOYEES

Both employers and employees may be influenced by the filing, processing, and outcome of grievances. A study of grievances in a government agency found that employees filing two grievances within one rating period received lower performance ratings. Winning or losing the grievance was not associated with the rating. Employees who grieved were no more likely to transfer; however, employees who filed a second grievance were more likely to receive a disciplinary sanction, and a second negative adjustment to a grievance was associated with an increased probability of quitting. From the employer's standpoint, grievance filing was associated with higher absenteeism and fewer production hours.69 Absenteeism appears to increase with policy grievances and is reduced by disciplinary grievances. Absenteeism falls following negative outcomes from disciplinary grievances, possibly due to escalating consequences for further discipline problems.70 In a study of a steel mill, grievants were usually better employees during the year in which they grieved; and if their grievance was settled at a low level and/or they lost the grievance, they were more likely to be rated higher, have better attendance, have lower turnover, and be promoted in the subsequent year.71 Managers and supervisors of units in which grievance rates were higher were somewhat more likely to be rated lower in the next period.72 In another study, both supervisors and grievance filers were likely to have lower performance ratings, fewer promotions, and higher turnover after they were involved in grievance activity, as compared with employees who were not.73

Page 487A study of public sector management and union representatives found explicit performance and disciplinary standards were associated with higher grievance rates. Rivalry between unions within the same employer increased grievances. Positive management attitudes and willingness to compromise were related to lower rates, but consultation with the union about items of mutual interest did not reduce grievances.74

Managerial perceptions of the effectiveness of discipline systems was related to being in a nonunion organization, having either a very permissive or very restrictive set of rules, high monitoring costs, and pressures for performance. Managers in organizations that invested in training on solving workplace problems were more positive.75

Grievance resolution provides information to help resolve subsequent cases at lower levels. Evidence suggests that only management uses prior decisions to guide initial decisions on a grievance. The higher the level of settlement of a grievance, the more likely the parties were to use formal settlements of previous grievances as precedents. Earlier decisions are used most frequently as precedents in discipline and work assignment cases.76 In a Canadian public sector union, grievances were more likely to be settled favorably in the early steps, for more highly paid employees, and for working-condition rather than work assignment issues.77 Management may settle grievances to the grievant's and union's benefit “without precedent” for similar future cases.

Employees who frequently grieve do not necessarily have better work outcomes. But what effect do grievances have for employers? Each grievance requires involvement of stewards, the grievant, and supervisors at the first step; industrial relations representatives, national union representatives, and the union negotiating committee at subsequent steps; and attorneys or representatives, witnesses, and an arbitrator at arbitration. A study of 10 paper mills (9 union and 1 nonunion) found higher grievances associated with lower plant productivity. The presence of a grievance procedure (only in the union mills) was associated with higher productivity, perhaps because employees had an outlet for complaints that would operate while production continued.78

When management and union representatives approach grievance resolution in a cooperative relationship, they are better able to achieve Page 488integrative resolutions. Those with competitive goals are more likely to take a closed-minded approach. Seniority issues can be dealt with cooperatively more often, while disciplinary issues are often competitive. Cooperative approaches tend to settle at lower steps and lead to more positive reactions among the parties. Competitive approaches are used more often when the parties want to establish a precedent.79

Summary

Contract administration is the joint activity in which labor and management spend the most time. Not only do the parties respond voluntarily to differences in interpretation, but they also must, by law, bargain on practices related to mandatory items over the life of the contract.

Both sides deal with a variety of issues, of which job security, seniority, and discipline are among the most important. Methods for handling disputes involve the presentation and resolution of grievances in a stepwise manner, culminating in arbitration, if necessary.

Unions must represent employees in a consistent manner in grievance proceedings, and employees who can show they were not accorded fair treatment may hold the union and the employer in breach of contract.

All grievances are not equally meritorious, and political factions within unions may obtain power to gain more favorable outcomes. Grievances also may accompany periodic union political elections. Management may influence these by the way in which it responds to the source of grievances during campaigning.

Grievants are less satisfied with their jobs, more satisfied with their unions, and more involved in union activities. They are more likely to grieve if they see fewer alternatives (such as quitting) available to them. Grievances, in general, do not lead to stronger positive outcomes for employees. Employers with high grievance rates appear to have slightly lower productivity.