CEP Benifits


   

.: Welcome Shop Stewards

What a shop steward should know

 

.: Grievance Information

  1. The grievance procedure
  2. Past practice grievance
  3. Investigating grievances
  4. What is a grievance?

 

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What is a grievance?

The term grievance refers to a written statement made according to the grievance procedure included in the collective agreement. It deals with any dispute concerning the interpretation, the application, the administration or the alleged violation of any clause of the collective agreement.


The purpose of the grievance procedure

The grievance procedure is at the heart of the collective agreement. It allows the union steward to draw up a grievance on behalf of the members. It is recognition by the employer that members have the right to he heard by management.

The procedure can have two to four steps. At each step, representatives of the union and the employer meet. Make sure you know the time limits for each step of the procedure.

When a case is settled through a grievance, it can serve as a precedent, or a model on which the merits of similar cases will be assessed in the future. Precedents are usually very important because they establish how the union and the employer will interpret the collective agreement from then on.

The Grievance Investigation

Gather the facts from the member who has a complaint. The steward must listen closely to the member who comes with a problem. Get all the facts. Make sure you give the member enough time to give you all the relevant information.

•Take notes. Ask questions.
•Use the CEP investigation form.
At times, a member takes it for granted that you know his or her work well and forgets to tell you important details. To avoid this, follow the five W's method.
Who is involved?
Name of member or group of members. The employee's number, classification, work station, etc.

What is involved?
Unpaid hours? A violation of seniority rights? Discrimination? Overtime?

When did it happen?

The required information includes the official date of the grievance, the date of the incident that led to the grievance, the date of the submission of the grievance and the employer's response. Make note of all the important dates related to the incident.

Where did it happen?

Describe as clearly as possible the case history and where it took place. Indicate the shop, the machine, the purpose, the plant, etc.

Why did it happen?

The fundamental reason for the grievance. This question is the key to the grievance, so it must be clearly expressed.

The investigation form


Whenever you collect information, use the required investigation form. Why?

You can forget things.

When facts are laid out in black and white, it is easier to determine the merits of the case.

When the grievance is completed, you have a file that can be used as a precedent for similar grievances in the future.

The investigation report can be used by the negotiating committee when the time comes to renew the collective agreement.

The difference between winning and losing a grievance can depend on the thoroughness of the information you have collected. When you write your report, remember that others will have to refer to it.

The investigation report can always be used as proof to the members of the work you and the union have done for them


Is the grievance well-founded?


It is best to have a thorough discussion with the member before determining whether the Grievance is well founded. If in doubt, consult other stewards as well as union leaders. They can help you make a decision.

Do not proceed with grievances that are not well founded. A member may believe he or she has a grievance because of a misunderstanding of the collective agreement. Personality conflicts or a misreading of the collective agreement are not legitimate grievances.

Agreeing to lodge this type of grievance may mislead the member and undermine your credibility with the employer. If you are sure that there isn't a valid grievance, tell the member, explain why and show him or her the section of the collective agreement that supports you argument. Be firm but be tactful in order to keep the member's trust.


The wording of the grievance


Once you have determined that you are dealing with a legitimate grievance, make sure to word it properly. Here are the steps to follow:

Obtain the appropriate grievance form.

Include all the details required on the form.

Define the nature of the grievance, use the least number of words possible and ask for the help of your chief steward if necessary.

State clearly the expected outcome. If a financial statement is involved, do not forget to claim interest.

Date the document and have the employee sign it. Do not forget to sign it yourself.

Submit it to management within the required time limits.


Should the member attend the grievance hearing?


Always take the member with you, except in special circumstances, e.g. if a member threatens to physically attack the supervisor.

If you go to see management alone, the member may believe that the grievance was not presented properly and could end up blaming you unjustly. Together, you can present a better-prepared and more detailed case. Before meeting with the employer, the member should be warned that the steward will talk on his or her behalf. The member should only respond to questions that are asked by the steward.

Discourage members from presenting grievances on their own. A member who is not familiar with the collective agreement could he easily influenced and decide to drop the grievance or accept a settlement that would weaken the collective agreement.


In Summary


• To best analyze the facts, talk less and listen carefully. Communication is a two way street.

• Let the employer make his own case.

• Do not let anyone side-track you. Stick to the question in dispute.

• Avoid tit-for-tat bargaining on grievances.

• Avoid personality conflicts. Do not provoke or ridicule the employer.

• Do not lose your temper. Create a climate of mutual respect and avoid making threats.

• Do not get involved in discussions of personal issues.

• Consult other stewards or union representatives.

• Keep the member informed about the outcome of the grievance.

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What a shop steward should know


Know your collective agreement

Read every word of your collective agreement and consult it regularly.

Become familiar with all the provisions included in the collective agreement. Consider they should be applied in your workplace.

Discuss them with members of your local executive and other stewards.

Discuss them during union meetings.

Know your workplace

Stewards must know their workplace and, as much as possible, know every worker's responsibilities.

Make sure you know all the members of your group.

Learn all the salary scales.

Make sure you have a seniority list in your files.

Know your members

Everybody is different. In the case of a grievance, for instance, some will readily give you all the relevant information while others will not. Some will have a complete file, others won't. Some will have personal problems. You will be in a position to help your members more effectively if you know them well.

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Shop steward's responsibilites


Organization

Keep your members informed.

Stewards have the opportunity to speak to members every day, at mealtime, at break and during working hours. Take advantage of these opportunities to inform members about the latest union activities and to encourage participation. This will reinforce union solidarity.

Members expect you to know more about the union than they do and they will listen to what you have to say. They might not agree, but generally they will trust you. Make sure you tell the truth and do not make up answers if you are asked something you do not know.

Get to know newly hired workers.

Every new hourly employee becomes a member of the union. Whether this new employee becomes an enthusiastic member or an indifferent one may depend on you.

Introduce yourself and explain your work as a steward. Tell them about the union. Offer your help if they have problems. Explain all the gains that the union has made for its members since they were first unionized.

Make sure new employees feel welcome. Put them at case. Give them a copy of the collective agreement and offer to answer any questions they may have. Give them CEP literature. This will foster a sense of belonging.

Participation at meetings, events and union training sessions.

Unions are among the most democratic organizations in the world. It is both a privilege and a duty for every member to take part in the election of stewards, Union committee members and leaders.

It's at union meetings that members learn how their dues are used. Who their representatives are and what the union does.

When members do not bother attending meetings, they weaken their union. It goes without saying that you must encourage them to attend all meetings. Hold shop meetings and keep your members up to date on the latest developments. Encourage them to make their views known.

When a situation arises in the workplace that affects many members, it is up to you to call a meeting.

You are the union in the minds of your members. Make sure that every member receives newspapers and that the bulletin board contains the latest information.

Counselling

Urge your members to use the union's services.

Inform members of the social activities sponsored by the union. Help the members experiencing problems outside work, for example: disqualification from unemployment insurance, a need for day-care or a problem with alcohol or drugs.

Refer them to union leaders trained to respond to these needs or to CEP's specialized services.

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Shop Steward Rights and Issues

As a steward, you have a lot of rights on the job in representing members; rights that most bosses would prefer you didn't know about. We've listed the most important ones, with links to related articles.

A steward's job can mean confrontations with the boss — confrontations that could get you fired in your role as an employee. The Labour Law recognizes this fact and provides three specific protections for stewards involving:

o Equal Standing

o No Reprisals

o Equal Treatment

Know Your Rights ...

Stewards have rights under the law and the union contract. They provide real protection for members and stewards ...but you got to know them before your can use them!

Steward's Rights

Don’t let the boss con you! As a Steward, you’ve been elected to represent your members — a job that most bosses would like to keep you from doing. Here’s a brief list of some of your rights and obligations.

You have the RIGHT to grieve about unfair treatment — whether you saw it happen or someone calls it to your attention. Bosses may accuse you of "soliciting grievances," but don’t be fooled! It’s your duty to encourage workers to grieve about legitimate issues — or file them yourself.

You have the RIGHT to carry out investigations of grievances, including interviews of grievants and witnesses. Most contracts provide for investigation on "company time." For those that don’t, there is often a clear past practice that allows this. But, if not, every grievance must be investigated as thoroughly as necessary, even if it’s on your own time.

You have the RIGHT to organize and encourage your fellow workers to take action in support of an issue or grievance, so long as it doesn’t take place on work time and interfere with production. The boss can’t stop you from getting people to wear stickers, sign petitions, carry signs, or take similar actions on break or lunch time. (Of course, stickers, buttons and caps can be worn all the time, unless there’s a special reason for a dress code.)

You have the RIGHT to request the information you need to process a grievance from management. You should put these requests in writing. Management is obligated to respond.

You have the RIGHT to be present in any meeting between the boss and an employee if it might lead to discipline.

You have the RIGHT to be present every time a grievance is being "adjusted" or settled. Even if a worker has taken up the grievance on their own, the boss can’t bypass the union when responding.

You have the RIGHT to stand toe-to-toe with your boss when you’re conducting union business. You can get loud, angry, forceful, and speak your mind during grievance meetings. This is the "Equality Principle" that says you and the boss are equals in grievance discussions.

All of these rights are legally guaranteed, but they depend on how well you use them. When you do, your members will find their rights are protected, too.

As a Steward, you’re elected to protect the rights of other members and defend the contract. Our style is militant and aggressive. It’s the best defense against bosses who try to undermine hard-won gains. To be effective, it’s important to know the weapons and protections we have as stewards.

Most of us know our weapons: the contract, the grievance procedure, the Labor Board, and, most important, shop floor unity and organization. Less well-known, perhaps, are the protections we have under the law.

(The rights described here are protected by the Labour Relations Act (LRA). Public sector workers are protected by similar state or federal laws.)

The Equality Rule

Probably the most important protection is called "The Equality Rule." This rule acknowledges that your job is likely to involve confrontations with management—confrontations that could lead to discipline under the normal rules of employer-employee relations.

You can openly disagree and argue vigorously with management during grievance meetings; question management’s authority; and, demand certain actions of management, all without risking disciplinary action.

The "Equality Rule" makes you a "legal equal" to the boss. But, it’s in effect only when you are doing your job as a steward, not when you’re acting as an individual employee. You’re acting officially when you investigate and argue grievances, request information and otherwise defend your members.

There are limits to what you can do, though. Threats of violence and actual violence are prohibited, as are extreme profanity, name calling, and personal attacks. Actions barred by your contract are not protected, either. To prevent supervisors from claiming you "exceeded the limit," it’s wise to have another steward or member with you during meetings with management.

No Reprisals

The boss is not allowed to use discipline, either real or threatened, or any other form of intimidation to discourage you from doing your job. For example, you can’t be denied overtime opportunities, promotions, job transfers, bumping rights, or any other entitlement as punishment for doing an aggressive job. Nor can management assign you to the most undesirable jobs or more closely supervise you than other workers.

Equal Standards

Some supervisors try to hold stewards to higher standards than others. "You, of all people, should know the rules," is often a statement heard when some rule has been broken. This is illegal, too. You’re not a "super-worker" and you can’t be singled out for unusual discipline to "set an example" or because you should "know better." The only exception: not carrying out responsibilities required of the union under the contract.

What to do

If the boss breaks these rules, there is most likely a contract grievance—and, an Unfair Labour Practice charge can be filed with the Labour Board.

Workplace Organization

As in the case of most other grievances, a workplace strategy for solving the problem is often much more effective than dealing with the LRB—especially because the Board is often frustratingly slow to respond. But, if you feel that a unfair labour practise charge should be filed, talk with your Regional Representative and local officers about the best way to proceed.

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Grievance investigation

( A Practical How-To Guide )

A member - or members come to you. They’re mad. Really mad. "It’s unfair...it’s a violation of the contract...it’s illegal...and it’s not right!" You think to yourself, "yeah, this is terrible. I’d better do something." But what do you do next?

If your answer is "demand an explanation from management," you may want to think again. Sure, some problems are obvious grievances, but most of the time you’ll need to know a lot more about what’s going on. Jumping to conclusions based on false, faulty, or inadequate information will only undermine your credibility, and the union’s.

Know the issues thoroughly. . . It's the only way to handle grievances well.

Investigate First

Remember, a member who’s upset, angry, and frustrated may not always give you an accurate picture of what happened. A disgruntled member may sometimes exaggerate and leave out important details. It’s up to you to investigate, look at the facts, and then decide on a strategy for dealing with the problem.

The first step in your investigation is to conduct effective interviews.

Get the information you need from an upset member after they’ve calmed down, either by taking them aside and talking for awhile, or by meeting with them later.

Here are some time-tested tips for getting the most information.

Make sure you’re relaxed — and take your time. Listening is the key, so control your feelings and concentrate on hearing what the member says. Write down important facts, including who, what, when, where, how, why, and the names of any witnesses.

Encourage the member to "get it all out" (both facts and feelings).

Ask questions that can’t be answered yes-or-no when you don’t understand something or when you need to clear something up, such as: "Why do you think this happened?" Or, "Give me an example."

Once in awhile, repeat back to the worker what you’ve heard them say. This checks your accuracy and often brings out overlooked facts.

Avoid making judgments during the interview. Form your opinion later, after you’ve gathered the facts.

Avoid making promises about the actions you will take. Assure the worker that you will investigate and let them know when you’ll get back to them. Make sure you do!

If you don’t know the answer to a question, don’t guess.

Promise the member you’ll find out and get back to them (and do it!).

A Full Investigation

Interview everyone connected to the problem in the same manner. Talk to other workers, any witnesses, other stewards, even foremen and supervisors. Never depend on a single version of what happened, if you can avoid it. And remember, interviews are one way of getting at the facts, but they’re not the only way.

Check documents and records that could help you decide what happened and what should be done. They include:

o Past grievances, steward’s notes, and arbitration decisions;

o The contract and supplemental agreements;

o Employer policies and work rules, and,

o Information that you may need from the boss.

When you’ve gathered all the facts, then it’s time to put your case together (if there is one), and determine what strategy (big plan) and tactics (smaller moves) that can be used to solve it.

Other Sources for getting Information

Having good and complete information is vital in fighting grievances. But where and how do we get it?

First we should look to ourselves. An informed steward not only knows the contract, but the past practices of the department. A wealth of knowledge exists among the members as well. And of course the local union should keep records. But sometimes that still isn’t enough to be properly prepared.

Help can come from an unexpected source—the employer! It’s not because they want to provide information. The union is entitled to it under the Labour Relations Act (LRA).

The steward may request information

Before a grievance is filed to see if the contract may have been violated.

At or between any step of the grievance procedure.

After the final step to prepare for or consider a possible arbitration case.

It’s best to be specific about what we want and, unless the information is immediately available, to put the request in writing.

Remember, the information must bear some relevance to the actual or potential grievance. The union is not allowed to use requests merely to conduct a "fishing expedition" through company records. Nevertheless all sorts of company documents data and factual information are fair game. There have even been cases where the boss has "thrown in the towel" on a grievance rather than go to the trouble of digging up the information requested.

Some Examples of Information the Union May Request:

Accident records

Attendance records

Bargaining notes

Company memos

Contracts

Correspondence

Disciplinary records

Equipment specifications

Job evaluations

Health and safety studies

Inspection records

Insurance policies

Interview notes

Job assignment records

Job descriptions Material safety data sheets

Names of witnesses

"Notes to file"

i.e. database source

Payroll records

Performance reviews

Personnel files

Photographs

Reports and studies

Salary records

Security Guard records

Seniority lists

Supervisor’s notes

Time study records

Training manuals

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Just cause for discipline?

Our main contractual weapon in discipline and discharge cases is usually the requirement that boss must have "just cause" (or "fair cause" or "proper cause") to take action against an employee. Even if these words are missing from the contract, many arbitrators use this standard, anyway.

But, what is "just cause"? Simply put: it means the employer must have a reason (he or she must have "cause") for imposing discipline and the reason must be fair ("just").

It is commonly accepted that there are seven tests as to whether the boss has used "just cause" in handing out discipline.

Using the Seven Tests

Here are the "Seven Tests" as to whether the boss has used "just cause" in discipline and discharge cases.

One of the main reason workers join unions is to gain protection against unfair and unjust discipline that employers hand out. Stewards must be ready to handle all sorts of discipline cases, from warnings to suspensions to firings. Stewards must be ready to deal with situations of gross discrimination by the boss on who gets disciplined to dealing with union members who sometimes seem to go out of their way to get themselves fired.

Our main contractual weapon is often times summed up in one short sentence, "Employees shall be disciplined or discharged only for just cause". In some contracts the words used are "proper cause" or "fair cause". The importance of a sentence like this is that it binds the employer to imposing discipline not just for any reason (cause) but the reason has to be a "just" reason. Many arbitrators have gone so far as to hold all employers to a "just cause" standard, whether the contract uses the words or not.

What is a "just cause" standard? It is commonly accepted that there are seven tests as to whether a boss has used "just cause" in handing out discipline. The Bureau of National Affairs lists them as follows:

The Seven Tests

Number 1

Was the employee adequately warned of the consequences of his conduct?

The warning may be given orally or in printed form. An exception may be made for certain conduct, such as insubordination, coming to work drunk, drinking on the job, or stealing employer property, that is so serious that the employee is expected to know it will be punishable.

Example: If an employee is told to stop using vulgar language and told that if he continues he will be disciplined, that maybe adequate warning. However if a boss comes up to an employee and says "I'm tired of your swearing, cut it out", and then the next day fires the employee for swearing again, that may not be adequate warning.

Number 2

Was the employer's rule or order reasonably related to efficient and safe operations?

Example: A boss makes a rule that all employees must wear red tee shirts and they must be tucked in so they don't get caught in machinery. An employee is fired for wearing a blue tee shirt that was tucked in. Making a rule that tee shirts must be tucked in so they won't get caught in machinery may be reasonable and related to safety, but demanding the tee shirt be blue isn't related to safety or efficiency.

Number 3

Did management investigate before administering the discipline?

The investigation normally should be made before the decision to discipline is made. Where immediate action is required, however, the best course is to suspend the employee pending investigation with the understanding that he will be restored to his job and paid for time lost if he is found not guilty.

Example: The boss fires a worker for stealing and then demands evidence from the union that the worker isn't guilty. At the grievance meeting the boss admits he never investigated the incident, just took another employee's word. This probably wouldn't hold up. If the union has facts to prove the employee's innocence they should be presented to the boss, even though he failed to properly investigate the case.

Number 4

Was the investigation fair and objective?

Example: If an incident happened does the employer interview everyone present or only management people who were present. If the employer refuses to interview non-management workers then the investigation may not be fair.

Number 5

Did the investigation produce substantial evidence or proof of guilt?

It is not required that the evidence be preponderant, conclusive, or "beyond reasonable doubt," except where the alleged misconduct is of such a criminal or reprehensible nature as to stigmatize the employee and seriously impair his chances for future employment.

Example: Here it is obvious that workers have less rights inside the workplace than they would have in civil court, but still the boss must have real evidence, not guesses. Again the boss cannot just try to make a worker prove his or her innocence, without presenting proof of guilt.

Number 6

Were the rules, orders, and penalties applied evenhandedly and without discrimination?

If enforcement has been lax in the past, management cannot suddenly reverse its course and begin to crack down without first warning employees of its intent.

Example: This is the most common form of discrimination. An employer decides to suspend Mary for taking too long at lunch, but lets the employees who eat lunch with a supervisor take extra time every day. This would not hold up. However, if the employer tells everyone that starting on Monday employees will be disciplined for taking too long at lunch and on Tuesday Mary comes back late and everyone else has been on time, she may be disciplined.

Number 7

Was the penalty reasonably related to the seriousness of the offense and the past record?

If employee A's past record is significantly better than that of employee B, the employer properly may give employee A lighter punishment than employee B for the same offense.

Example: The classic example is two employees get in an argument and shove each other. One has 25 years service with a clean record. The other has 3 years service with lots of warnings and discipline. Based upon the workers seniority and records, the employer may give the older worker less punishment than the other worker.

Tips for Handling Discipline & Discharge Cases

Here are some basic tips for stewards handling discipline and discharge cases:

• Use the " seven tests " as an outline. Did the employer meet the seven tests? Remember that just because an employer messes up on one of the seven tests, this doesn't mean we automatically win, but proving they screwed up helps a lot.

• Try to stop the employer from suspending or firing a worker. Try to get a cooling off period if necessary. The case becomes harder once a worker is out the door, now we not only have to fight about what happened but over back pay, etc.

• Ask for all the employers notes and records they used to make a decision. Get any notes or records a foreman or supervisor might keep, even informal records. The union has a right to them. On the other hand the employer has no right to the notes or records that the union makes when investigating a case.

• Do a thorough investigation of the case. DON'T take the employers word on anything. (See: Investigating Grievances).

• In a grievance meeting make the employer prove their case first. Make them present all the facts and don't assume anything. Don't let the boss start the meeting by saying to the union, " OK tell me why I shouldn't fire Joe". Make the boss justify firing Joe.

• There are two parts to every discipline case. Did the employee violate a known rule and what should the punishment be? Sometimes we lose the first part but then we have to make sure the punishment fits the offense.

• If the employer refuses to back down from a written warning, and the case doesn't merit arbitration make sure the employer receives from the union a written statement disputing the facts and the discipline. Have this letter also put into the employees personnel file.


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Past Practice Grievance

Winning Past Practice Grievances

The Types of Past Practices

Tips on Filing Grievances About Past Practices

Issues

One of the most powerful tools at a steward's disposal in defending members' rights and working conditions at work is the concept of past practice.

It's important for each steward to be familiar with the practices of the workplace ... and how to use the grievance system to defend them.

Winning Past Practice Grievances

Understanding and Defending Past Practices at Work ...

One of the powerful tools that each steward has in their Steward's Toolkit is the use and understanding of past practices. Stewards need to know what constitutes a valid past practice and what are the past practices in their workplace. It is important that all stewards are aware of the past practices so they can defend them from erosion by management.

Definition of a past practice

A past practice is any long-standing, frequent practice that is accepted and known about by the union and management. A practice that meets the standards of being a bone fide past practice is considered to be part of the contract. Since it is part of the contract, grievances can be filed if management violates a past practice. In most cases management cannot end a past practice without first bargaining with the union. In some cases management must wait until contract negotiations to change a past practice.

Be sure to check your contract for any language that may limit the use of past practices for grievances.

The test for a valid past practice is as follows:

o It must exist for a reasonably long time.

The longer a practice has been in effect the more weight it carries. We are talking about years, not weeks or months. Many arbitrators think that a practice must be 3-5 years and "cross over contracts," that is, it must have been in practice during the life of at least 2 contracts.

o It must occur repeatedly

To be valid, a practice has to occur many times, the more times the better. It should also occur consistently. A practice that happened 5 times, four years ago and hasn't happened again, is not a very strong past practice. An exception to this might be a practice that occurs around a specific holiday. If every year for 7 years the management allows workers to go home without penalizing them after working only half the day on the day before Christmas, this could be a valid past practice.

o It must be clear and consistent

Whatever the past practice is, there must be a clear and consistent pattern of it being repeated in the same way each time. If there are minor deviations, then there must be at least a predominate pattern of consistency.

Example: Management has always let workers accept personal phone calls. The union can document over 100 times in the last 5 years. Management says they can prove that on 3 occasions workers were refused the right to accept a personal phone call. In this case the clear and overwhelming pattern is in favor of the union. Three refusals over five years doesn't break up the clear and consistent pattern.

o It must be known to both management and the union

While a past practice does not have to be "negotiated," it must be something that both parties know about. On the management side it sometimes is not good enough for a low-level foreman to know, it must be higher management.

Example: For years workers have been leaving the work place early on Fridays and the foreman knows it. According to the "absentee program" workers should receive one point for leaving early, but the foreman never gives points for Friday. Upper management finds out and decides to give everybody warnings for leaving work early. The union could argue that nobody should get a warning because management did not inform the union that they wanted to change the practice of no discipline for leaving work early on Friday. However since upper management did not know about this practice it would be hard to argue that workers could continue to leave work early every Friday, without discipline.

o It must be accepted by both management and the union

The practice not only has to be known by both parties, it must be accepted by both parties. Often times the fact that a practice occurs frequently over a long period of time indicates that the parties agree to it. A practice that is openly agreed to by both parties, gains past practice status quicker than one that is not openly accepted. When management acknowledges a past practice as part of a grievance answer, its "legal" status is much more secure.

Example: For many years workers have been allowed to line up at the time clock after the first bell rings, signifying there are five minutes left until quitting time. A new boss says that no one can line up until the quitting bell rings. The union has a strong case of past practice. Management cannot claim they didn't know workers were lining up after the first bell. In this case since management never did anything to stop this practice, this indicates acceptance of the practice.

The Types of Past Practices

There are three categories of past practice. The "contract clarifying past practice" is the strongest type and the "contract conflicting past practice" presents the weakest legal argument.

Contract clarifying past practice: These practices come into being when there is contract language that is vague or general. The practice defines the general language.

Example: The contract language reads, "The company will allow union stewards reasonable time off from work to attend union meetings." The general phrase is "reasonable." For many years the company has allowed stewards to attend monthly union meetings and three times a year the District council meeting. Every year one steward and the officers get time off to attend the National Union convention. This past practice now clarifies what the contract means by "reasonable."

This is the strongest type of past practice because it is backing-up negotiated language. In most cases an employer must bargain to change the past practice, and they cannot change it if the union doesn't agree.

Independent past practice: This is a practice that is not addressed by any contract language. Most often these are "benefits" that workers take for granted and so were not included in the contract.

Example: There have always been vending machines in the cafeteria. Management cannot just decide to remove them. Parking has always been free in the company parking lot. Management cannot just decide to begin charging employees.

Independent past practices can be terminated by management for the following reasons:

o If they can prove that there has been a significant change in the original conditions that started the practice;

o If they can prove significant ongoing employee abuse of the practice;

o Finally, if they notify the union during contract negotiations that they will end the practice during the next contract.

Even under the "change in conditions" and "abuse" situations the employer must bargain with the union before ending the practice.

Most arbitrators will not extend these past practice rights to "work methods."

Example: Management wants workers to run 3 machines instead of two, claiming new technology makes them easier to run. The union probably cannot claim it is a past practice that workers only run two machines. However in most cases the union can demand that management bargain over a change in working conditions.

Contract conflicting past practice: In this case the practice clearly conflicts with the contract language. These are the hardest to prove, with most arbitrators coming out on the side of saying the contract should prevail. With a contract conflicting past practice an arbitrator may look at practices that have existed for very long times, happen very frequently, very clearly conflict with the contract and were very clearly known to both parties. In these cases the arbitrator may rule in favor of the practice.

Example: The employer has never given Union Representatives "points" under the absentee system for attending union conventions, even though there are no provisions for this exclusion in the absentee system which is part of the contract. This has been going on for ten years. The union notifies management each year as to who will be attending the convention. In this case although the practice conflicts with the contract it probably would be considered a valid past practice.

The employer must notify the union of its intent to end the past practice and must bargain with the union, if the union requests to bargain. After bargaining the employer may end the past practice.

Tips for Filing Grievances About Past Practices

Know which kind of past practice it is. Remember, the strongest case can be made for a "contract clarifying past practice."

Gather plenty of evidence of how long, how frequent, and how the employer knew about the past practice. The more the better. Bury the employer with evidence.

In writing a grievance, cite which part of the contract the practice is clarifying and, as always, cite the entire contract.

Finally, as always, don't depend on any arbitrator or LRB to save the day. Everything cited above are "guidelines" that most arbitrators follow BUT are under no obligation to do so. Rely on the membership to win past practice grievances, just like all grievances. (See: The Case Against Arbitration)

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Arbitration - yes or no?

The Case For or Against Arbitration

Organization, not arbitration, is often the best way to resolve grievances. Why? Arbitration can:

o undermine organization

o be dangerous in ways you never expected

o be very expensive

Arbitration is often a gamble, too — with the outcome having little to do with the merits of the case.

The Case Against Arbitration

The best place to settle grievances is right where they began ... on the job. Relying on arbitration can undermine your local union's strength and be unexpectedly disastrous.

Arbitrate? Sometimes we’re forced to. But taking grievances to arbitration can be expensive and dangerous. Why? Because, at best, arbitration is a third party process that does little or nothing to build union strength and, at worst, can set a bad precedent that will haunt workers in many places for many years.

Undermining Strength

Given our belief in rank-and-file unity, eagerness to arbitrate grievances can be a danger signal that a local’s organizational strength is suffering. The best place to settle a grievance has always been right where it began—on the job. The boss should know that all grievances will be backed by a unified and, if necessary, angry membership.

If very few grievances are settled on the job or in the early stages of the grievance procedure, then it may be time to take a good look at your local’s ability to send a unified message to the boss. Instead of building unity, arbitration can actually undermine organizational strength.

Think about it. Arbitration removes an issue from the workplace and it takes time. Instead of reinforcing the idea that "we—all of us—are the union," the attitude is developed that the union is some type of insurance agency: ‘file a claim and see what happens.’

Potential Disaster

An ill-considered decision to arbitrate can also turn into a disaster. With the stroke of a pen, an arbitrator can undo hard-won contract language—and, as many trade unionists have found out—what we lose in arbitration we rarely recover in negotiation.

Arbitrators have considerable freedom to frame their decisions and the outcome may be completely unexpected or irrational. In one case, an arbitrator ruled the company was wrong—but he had developed such a dislike for the grievant that he refused to provide a remedy.

Fighting mandatory overtime through arbitration, a local in another union was shocked when the arbitrator decided the company and the union wouldn’t have negotiated overtime pay provisions if "reasonable" mandatory overtime wasn’t expected.’ The decision was bad enough but it set a precedent that has been used repeatedly in other cases involving similar contract language.

Arbitrate until you drop

Finally, arbitration is expensive and there are plenty of bosses who would love to bankrupt a local union by pushing every grievance to arbitration. The best rule of thumb: always try to win organizationally; consider arbitration only if there’s no other course. And, always consider what will happen if the case is lost.

Remember, the arbitrator’s decision may be binding until your contract language is changed. The common experience: union’s seem to run about a 50-50 chance of winning discharge and discipline cases, but a much lower percentage of cases involving contract language. Arbitrators seem much more likely to defer to the "management rights clause" than support the union’s interpretation of the contract.

If you have to . . .

We know it’s sometimes necessary to arbitrate. Pick your cases carefully and make sure they’re strong. Be very careful where contract language is concerned. And, try to take the long view: is it likely that a particular principle can be won through a stronger case in the future? Or, should the issue be saved for the bargaining table?

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Management Rights

Most bosses, of course, want to limit the ability of members to bring up workplace issues ... and will often insist that an issue can't be dealt with "because it's not in the contract."

But, the recognition clause in every union contract gives workers the right to bargain collectively over any issues involving wages, hours and conditions of employment.

This isn't an opinion, it's the law. Yes, there are some limitations, but far fewer than the boss would have you believe.

Rights: Theirs & Ours

Management may say the union can't file a grievance because "it's not covered in the contract." But your contract's recognition clause says the boss must deal with the union on issues involving wages, hours and conditions of employment.

How many times has this happened: a problem arises at the workplace and the contract is "silent" on the issue at hand. Management claims that since the contract doesn’t cover the issue, the union has no basis for a grievance; that "management rights" allows them to do most anything they want. Often times we are faced with a grievance and have trouble finding a specific remedy in the contract. This is where the recognition clause comes in.

Most often the recognition clause is at the beginning of the contract and reads something like this: The employer recognizes the Union as the sole and exclusive bargaining agent, for the purpose of establishing wages, hours and conditions of employment.

Where Do Union Rights Come From?

The reason this kind of language is so common is that the recognition clause is just repeating what's in the Labor Relations Act : For the purposes of the Act, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment.

Processing Grievances is A Form of Bargaining!

So under most of our contracts and under the law, the employer must bargain with the union — and processing grievances is a form of bargaining — when unresolved issues regarding wages, hours and conditions of employment arise.

Here’s an example: Employees have always been allowed to have radios in their work area. A new foreman orders all radios taken out of the work area. He claims they distract employees from doing more work. He also claims that under the management rights clause he has the right manage the work place, and this gives him the right to make changes.

Management Rights

This is a perfect example. The right to listen to radios isn’t in the contract, but the steward files a grievance under the recognition clause. Removing radios would be changing employees’ conditions of employment and therefore the foreman must bargain with the union before making any change.

Although the management rights clause says the employer has the right to run the work place, this is a general right and does not mean they can change any working conditions any time they want to. Management rights clauses that list specific items like, "management has the right to set starting times" means the union can’t complain about management setting starting times, unless some other part of the contract addresses the same issue.

Restrictions on Our Right To Bargain and Grieve

There are some restrictions on making employers bargain over conditions of employment. Although there is no basis in the law itself or in the LRB, the Courts have put some restrictions on our rights. As may be expected, the restrictions favour the bosses. The Court decided there should be mandatory subjects of bargaining and voluntary subjects for bargaining.

Never take the bosses word that they don’t have to bargain over an issue. Check with the Union first. Because even if the union has "waived" its right to bargain or grieve an issue, the Company may be obligated to bargain over the effect of the change.

The voluntary list is fairly small but covers some important topics. For example it is voluntary for an employer to bargain over the decision to close plants or eliminate part of the business. They must, however, bargain over the "effects on employees" of such decisions. This is where we bargain over severance pay, etc. A decision to close a plant that is based solely on wanting to pay lower wages may move this issue into the "mandatory" bargaining category. Other "voluntary" items are picking supervisors, pre-employment tests, advertising, management salaries, etc.

It's Our Duty

As most stewards soon realize there will be many fights over what the recognition and management rights clauses means. We must always try to use the recognition clause to demand the greatest rights for the workers and the union, "to push the envelope".

We must always try to make management bargain over any proposed change, no matter what the management rights clause says. We won’t win every one, but by sticking to our rights and having an active membership behind us, we can "train" management to bargain over most working conditions.

Issues the Boss Must Discuss

Here is a list of some issues that management must talk to the Union about unless the union has specifically waived its right to bargain or grieve them (by coming to agreement on the issue):

  • absence rules , automation decisions , clean-up rules , disciplinary procedures
  • dress codes , drug/alcohol testing , elimination of positions
  • employee privileges (such as right to listen to radios, receive telephone calls, smoke etc.)
  • employee purchase plan , evaluation systems , food service hours, free coffee
  • grooming standards , "light duty" policies , new positions , parking rules , pay check procedures
  • production quotas , safety awards , smoking rules , subcontracting decisions , tardiness rules
  • union steward and officer privileges (such as paid leaves, access to facilities, time off etc.)
  • vacation policies , workloads , work rules

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Workplace Surveillance

Smile . . . You're On Corporate Camera!More and more employers are using some form of electronic surveillance in the workplace. In a union workplace, workers have a better chance of fighting this invasion of privacy.Stewards should know new forms of surveillance may well be grievable . . . and hidden cameras may be subject to mandatory bargaining. Non-union workers are basically out of luck in looking for legal protections. Workplace Surveillance

More and more workers are being monitored on the job through some form of electronic surveillance.

Workers at a factory one day noticed a crew of outside electricians doing a lot of work in the plant. They were installing an extraordinary amount of new electric exit signs and refurbishing old ones. At first no one thought anything about it, but then someone noticed that instead of regular electric cable running into the signs there was 3/4 inch coaxial cables. The second shift conducted an examination of the new signs and to their surprise they found that each exit sign not only had lights inside them but also had miniature video cameras that were set to watch the workers!

At another workplace the office and clerical workers were notified by management that they were not to conduct personal business on company time. Most workers treated this as just as another one of those stupid notices that bosses post from time to time. A few weeks later several workers were called into the office and given written warnings for conducting personal business on company time. The bosses evidence was E-mail letters that had been taken from the workers personal inter-office E-mail accounts! Since the letters were of a personal nature and didn’t have anything to do work the boss accused the workers of "stealing time."

A growing trend

This is all part of a growing trend of employers spying on workers. While most bosses say this is just part of an effort to stop "theft" or to prevent "drug usage," it is in most cases just another way to put pressure on workers to produce more, it is part of speed-up.

In 1990 according to one survey about 8 million workers were subject to some form of electronic surveillance by their employers. In 1996 the number had risen to 20 million workers, and this is just based upon the employers who admit to spying on their workers. In a 1993 survey of large corporations 22 percent admitted they spied on their workers with some form of electronic surveillance and never told the workers they were being monitored.

Is Spying Grievable?

The basic answer is yes. The basic union approach must be that any time the employer wants to make a change in our working conditions (and using surveillance on workers can not be considered a "minor change") then we can grieve the changes and demand the employer bargain over them. The section of the contract to quote is usually the Recognition Clause.

If we ever suspect that the boss is using surveillance cameras, or reading E-mail, confront them with the accusation. If they admit doing it, immediately file a grievance. Have everybody sign it to let the boss know they don’t like being spied on.

Remember, this is a two step process. First, the grievance is filed over a change in working condition being made without bargaining with the union. The remedy must be stated, usually it will be that the employer stop the surveillance immediately. Second, a separate letter is given to the employer demanding they enter into negotiations with the union over their intent to spy on the members.

Is There Legal Protection?

As in most cases concerning the rights of workers, the laws are not so good or don’t exist. We have to depend on our strength as a union to back up the grievance procedure. When the boss is caught spying on us it is easy to make up stickers and buttons with catchy slogans.


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Breaking in a New Boss

Issues

You've got a new boss, bosses, or maybe an entirely new management team. He, she or they want to make the point that "things will be different." How different will they be? Here are some issues to consider involving both the legal aspects of what can – or can't – be changed, the reality of your workplace and what it will take to make sure respect for the members is preserved (or reestablished) ...

Breaking in a New Boss

The new boss will often try to "make an impression." Here are some thoughts on how to make sure a new boss learns how to act like a civilized human being.

Here’s a situation that can happen to any union local, sometimes more than once...

Corporate management appoints a new management team, or local management hires a new personnel manager, or the operation is sold to a new owner. In the public sector a new person is elected, or a department is privatized. Management announces that from now on things are going to be different, rules will be enforced, discipline will be handed out. New company policies or work rules are posted or handed out.

A steward files a grievance, management rejects it because it wasn’t written properly, or a deadline was missed. The union committee cites past practice, management states they are new, and that only past practices that benefit the company will be recognized. Union members are mad and demand that the union take action. Even lower level management is complaining and tells the union that they better do something about the boss.

What causes this to happen? Often it’s a new young boss trying to make an impression. Since many workplaces are non-union, odds are this person has never dealt with a union before. They don’t understand how a unionized location operates. It’s up to the union to not only defend working conditions, but also "break in" new management. They may need to be taught how to act like civilized human beings. Respect for the members must be reestablished.

As with most situations, there are two aspects to consider, the legal issues and dealing with reality. How much can the union afford to let management get away with? When has management crossed the line, forcing union leaders to take a stand?

The union’s best weapon is it’s members. The members control production quantity (a lot or a little) and quality (good or bad). They control the delivery of services. Services can be provided fast or slow, a lot of "red tape" can be involved. Often what’s needed is a method to remind the employer of the member’s power. It could take one or several reminders. Management can be slow learners, but eventually the message will get through and respect for the workers will be reestablished.

Ideas for Action

• Discuss the situation with the members immediately. Hold meetings, either formal or informal (at lunch, in the parking lot, in a nearby restaurant).

• Make sure a substantial majority of the members are on board and that they understand the problem. New management can be the best activator and organizer of union members.

• Call a stewards meeting right away. Get the stewards on board. Hold a mini stewards class, if necessary. Make sure the stewards know their legal and contractual rights. Be sure they know the proper way to write and present a grievance. Make sure they understand the importance of meeting the contract time lines.

• Don’t skip steps in the grievance procedure, even if the supervisors claim they can’t do anything to resolve the grievance. If union members are going to be made miserable by the new management’s tactics, lower level bosses need to be made just as miserable. Pressure must be put on them to help whip the new managers into line.

• Work on management at every level. Try to determine if this attack is the policy of the employer, or the action of a new boss out to make an impression. We have more leverage if the problem is with the individual. If that’s the case, other levels of management may not be interested in going to war with the union. Try to use any division in management to the union's advantage. Remember, management will generally not publicly denounce one of their own, but if we can pit them against each other the union will gain bargaining leverage.

• Don’t expect to win this fight overnight. It will take time. Make sure the members and stewards know and understand this. Don’t allow management to single out union officers or stewards for punishment. Advise people not to lose their temper or do something stupid. That could be playing into management’s hand. They may be looking for a union official to fire to scare everyone else.

• File a lot of grievances — they may have to be withdrawn later, but let the employer know that people aren’t happy. Let management know you are willing to spend as much time as it takes sitting in grievance meetings. When possible, present group grievances. (Either file a lot of separate grievances, or have everybody sign one grievance). Have as many members as possible come to the grievance meeting to testify.

• Work to rule when you can. Take time filling out paper work and always work in an extremely safe manner. Everyone should ask their immediate supervisor a lot of job related questions. Remember, being a model employee takes time.

• At some point the union may need to take the fight outside the immediate workplace. Petitions may need to be sent to corporate headquarters. Practice picket lines can be held (off hours), or call a press conference to inform the public if we provide services to them.

• Figure out what the best resolution to this problem is. It’s rare that the employer will fire a boss because the union demands it. Most likely, someone different will handle the grievance procedure for a while, or the situation may improve over time. Leave management room to save face.

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Stopping Sexual Harassment

A steward's job is to protect the rights and working conditions of all the people in our workplaces.

Issues

As a union, our job is to protect the rights and working conditions of the people in our workplaces. Sexual harassment is illegal and a violation of the contract as well — and it's our job to respond when we see it happening.

Stopping Sexual Harassment

Sexual harassment is a violation of most union contracts and is illegal.

Sexual harassment is one of the leading forms of discrimination that women workers face. One survey of women workers showed that 56% had faced some sort of sexual harassment at work during their lives. Sexual harassment and discrimination are illegal under most union contracts and it is illegal. In guidelines defining sexual harassment. It is defined as:

(1) unwelcome sexual advances; or (2) requests for sexual favors; or (3) any other verbal or physical conduct of a sexual nature. Sexual harassment can occur through looks, touches, jokes, innuendoes, gestures, or direct propositions.

Such conduct constitutes sexual harassment when (a) submission is made a term or condition of employment; or (b) submission is used as a basis for employment decisions; or most broadly (c) the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive work environment.

Under the law, men as well as women can be victims of sexual harassment, but in reality it is women who are affected 98% of the time.

So, in short, sexual harassment is any unwelcome sexual advance or a hostile work atmosphere based upon sex. The key to all this is, if a woman says "no" or "stop it", then actions that occur after that probably are sexual harassment. The "no" does not have to verbal either. If a boss keeps demanding that a woman worker go out with him, and she walks away from him each time he does it, then that should be taken for "no". For him to keep bothering her is sexual harassment.

What Makes the Boss Guilty?

The employer is liable for the actions of its employees involving sexual harassment under certain conditions. These include the following:

1) The sexual conduct was unsolicited and unwelcome. People can still talk about sex or make jokes with each other as long as both parties don’t mind it and they keep it to themselves. A hostile work environment can be created by the language or actions of two consenting people if other workers find the language or behavior offensive.

2) For "hostile working conditions," the conduct must be severe or continuous.

3) The employer or someone in authority must know that a worker is being harassed. If the employer fails to take action to stop sexual harassment then their penalties can be greater. The "higher" up the boss is who is doing the harassment then the greater is the company responsibility.

What About Workers Harassing Other Workers?

As a rank and file union we must make it clear that we want to make working conditions better for all workers, and therefore we cannot tolerate one worker or a group of workers making life miserable for other workers. This is not union behavior.

The union’s obligation is to make sure that everyone is treated fairly and gets a fair hearing. If the union determines in good faith that a member was wrong and was harassing another member, then the union has no obligation to defend the harasser.

Our policy is that workers get education on why their behavior is wrong. Many time this is enough to stop them bothering another worker. If we can handle this inside the union, that is the best approach, but if a worker after being "educated" continues to be abusive then we must take steps to protect the member who is being harassed. Our mission is to "unite all workers on an industrial basis, and rank and file control, regardless of craft, age, sex, nationality, race, creed or political beliefs and pursue at all times a policy of aggressive struggle to improve our working conditions."

Some Legal Terms

Quid Pro Quo is Latin for "this for that". This simply means demanding something from a woman in return for giving her something. "If you go out with me I’ll make sure you get overtime" is something a boss may say to a woman worker.

Hostile environment is any unwelcome sexual conduct that "unreasonably interferes with an individuals job performance or creates an intimidating, hostile or offensive working environment". This type of harassment also includes cases where a boss harasses woman because he doesn’t want them working on certain jobs, or he allows men to harass the women to get them "off of the men's jobs".

Fighting Back!

Every instance of sexual harassment will be unique - but we've got some suggestions for developing thoughtful responses.

Every instance of sexual harassment will be unique and creating appropriate responses will require the Steward to be thoughtful, sensitive, and resourceful. Below are a few suggestion that should be kept in mind when dealing with sexual harassment.

1) The Union should make all members aware that sexual harassment is illegal and that the union will fight on behalf of its members to stop it.

2) Make the employer post notices that sexual harassment is illegal.

3) Many women are not sure who to turn to when they are being harassed. The union can appoint several stewards (some of whom should be women) who are well known and respected by the members to be a special committee to deal with sexual harassment. Make this committee known to all workers.

4) If the harasser is a boss (or an unrepentant union member), have everyone — men too — in the department wear stickers or buttons with messages like the one at the top of this page.

5) When dealing with the issue in grievance meetings, make sure the victim isn’t harassed again by the company by being made to recount what happened in front of many bosses. Make the company show some sensitivity.

6) Make the harasser pay for the crime, not the victim. Too often, the boss’s solution is to move the victim off of her job to "keep her away from Joe". Make the employer fire or move the boss who was the harasser, not the worker.

7) Put the employer on notice that illegal behavior is going on. Be the buffer between the victim and the employer. Don’t let a boss harass a worker into withdrawing their complaint.

8) In cases where a union member is the harasser, try to make them stop before going to the boss (see #4). Get the union committee involved if the worker doesn’t understand what they are doing is wrong

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