1. VIOLATION OF THE CONTRACT
Contract violations involve such matters as seniority, hours of work, staffing, wages, working conditions, holidays and vacations - matters specifically covered in the contract.
2. VIOLATION OF PAST PRACTICE
The contract does not cover every practice on the job. Some have been established and recognized by both the management and the union, and may be written or unwritten.
3. VIOLATION OF FAIR TREATMENT
If one employee is discriminated against or mistreated.
4. VIOLATION OF FEDERAL AND/OR STATE LAW
Laws written to protect workers are implicitly part of the contract and a violation of such a law can constitute a grievance.
5. VIOLATION OF MANAGEMENT’S RULES
If management sets forth rules and sets policies, it may be a grievance if it violates these rules.
GETTING THE FACTS: REMEMBER THE 5 W’S
1. WHO… is involved?
2. WHEN… did the incident or condition occur?
Give dates and times as accurately as possible.
3. WHERE… did the grievance take place?
Give the exact location, department, area, etc.
Is the grievant's story?
Is management's position?
Are the reports of witnesses?
Are there any records that help support your case?
Is this a grievance?
Has the contract been violated? (What about violations of past practice or the law?)
Should the grievance be settled? (What adjustments are necessary to correct the injustice?)
10 POINTS ON WRITING A GRIEVANCE
1. LIMIT DETAILS TO BASIC INFORMATION
Provide only enough information to identify the grievance so that management can respond.
(1) what is the problem
(2) what violations have occurred
(3) how the problem should be fixed (remedy)
2. OMIT UNION'S ARGUMENTS, EVIDENCE AND JUSTIFICATION
Arguments, evidence and justification for the grievance should be used in oral arguments with management. However, you should jot these facts down before you argue the case with management.
3. DON'T LIMIT CONTRACT VIOLATIONS
Use the phrase "violates the contract" and the words "including but not limited to Article...". If these terms are used, you are not limiting yourself to one specific article; additional article can be added later.
4. AVOID PERSONAL REMARKS
The grievance states the union's position, not the grievant's opinion. Avoid the use of the terms "I think" or opinions of management officials.
5. DON'T LIMIT THE REMEDY
Use the general phrase "to be made whole in every way". If you limit the remedy you don't allow the union room to bargain on the grievance; or an item might be unintentionally left out - you may not be able to add it in at a later time.
The union requests that the grievant, Billy Brown be recalled to his job classification with full back pay for all wages and benefits lost.
The union requests that the grievant, Billy Brown be made whole in every way, including recall to his job classification with full back pay for wages and benefits lost.
By including the term "made whole in every way", the grievant should receive any and all losses due to management's improper action.
Count such matters as time, expenses, and other considerations.
This could include wages, seniority, insurance benefits, vacation accruals, etc.
However, even though the term "made whole in every way" is added, the union must advise either the management official or the arbitrator as to the specific benefits requested.
6. CONSULT WITH THE GRIEVANT
Go over the written grievance. Explain the requested remedy and obtain the grievant's full understanding.
Explain the grievance to your members. Be sure they understand and support your efforts.
8. KEEP GRIEVANT UP TO DATE
Let the grievant know the status of the grievance - keep him or her advised of the stage it is at during the steps of the grievance and arbitration procedure.
Prepare each case on the assumption that it may go to arbitration. Most cases are lost or won based upon the early investigation of the grievance.
10. MAINTAIN A GRIEVANCE CASE FILE
Keep names, dates, memos that relate to the grievance. Other stewards may eventually get involved
in the case - keep it well organized.
GRIEVANCE PROCEDURE TIME LIMITS
STEP A Informal:
Must be discussed with the grievant’s immediate supervisor within 14 days of the occurrence or when the grievant or the Union may reasonably have been expected to have learned of the occurrence.
Verification of a STEP A Informal Decision Date: At the conclution of the STEP A Informal meeting the Union should request the supervisor to initial the STEP A Formal Grievance Form to verify the date of the Step A Informal decision.
STEP A Formal:
The STEP A Formal Grievance Meeting must be held with the installation head or designee within 7 days of the STEP A Informal decision.
The STEP A Formal Grievance Form must be completed within 7 days of the STEP A Formal Grievance Meeting.
STEP B APPEAL:
Must be appealed in writing to STEP B representative’s office and include the entire grievance file.
THE UNION MUST ADHERE STRICTLY TO THESE TIME LIMITS:
Failure to appeal within the time limits is considered a waiver of the grievance if the Postal Service raises the issue of timeliness. In such cases, NALC will not be able to successfully obtain arbitration of the grievance on its merits. HOWEVER , NALC representatives should note that if Postal Service fails to schedule a meeting or render a decision within the time limits prescribed in Article XV, this failure shall automatically move the grievance to the next step of the grievance-arbitration procedure.
DEVELOPING INFORMATION IN INVESTIGATORY GRIEVANCES
SOURCES OF INFORMATION
2. SPECIAL REPORTS
Such as: Supervisory
3. INTERVIEWS - In-House
4. INTERVIEWS - External
Community - Such as: Local stores receiving stolen goods
7. EMPLOYEE INFORMANTS
8. LOCUS OF INVESTIGATION
Example: Photo of location of alleged incident
9. PHYSICAL EVIDENCE
PROCEDURES FOR USE OF SOURCES
Non-evaluative gathering of facts.
Determine possible witnesses.
Decide on order of interviews
Conduct interviews promptly
Develop possible theories of case
Test for missing links
Develop working hypothesis
At all stages keep careful and complete notes
Decide on action now to be taken such as formulate charge; hold up; drop entirely
Evidence is used to establish proof of a fact in the mind of the arbitrator. The degree of proof required depends on the nature of the case and must simply satisfy the arbitrator. There are three degrees of proof used by arbitrators in making decisions:
(1) Proof beyond a reasonable doubt - the strictest degree
(2) Clear and convincing proof - the moderate degree
(3) "A preponderance of evidence - the minimum degree
A greater degree of proof will be required for cases determining more critical issues for the individual, the labor/management relationship, and the law. Generally, arbitrators look for clear and convincing proof in the majority of cases.
BURDEN OF PROOF
One party has the obligation to establish through evidence the issue to be proven. This burden of proof consists of two elements:
(1) The burden of producing evidence
(2) The burden of persuading the arbitrator of the issue in dispute
The burden of proof depends on the nature of the case. Generally, in non-disciplinary hearings, the grieving party, which is usually the union, bears the initial burden. In disciplinary cases, it is usually the employer who has the burden of proving just cause. The burden of proof may also shift. In arbitration, the concept of burden of proof may be applied according to the particular arbitrator who may or may not find it useful to decision making.
PREPARATION OF THE WITNESSES
ENCOURAGE THE WITNESS TO:
Tell the truth
Listen very carefully to the questions that are asked and to answer only the question asked in the most direct and simplest way possible.
Answer "I don't recall" if he or she does not remember
Answer "I don't know" if he or she does not know an answer
Ask for the question to be explained or restated if he or she does not understand the question
Answer only "Yes" or "No" in response to questions from opposing counsel on cross-examination
Maintain a calm and dignified demeanor while testifying so as to enhance his or her credibility
Dress neatly and refrain from chewing gum while testifying
DISCOURAGE A WITNESS FROM:
Arguing with opposing counsel during cross-examination (explain that it is your job to argue)
Making "wiseguy" or sarcastic remarks or otherwise trying to "make points" on cross-examination (explain that such conduct diminishes credibility)
Offering explanations or attempting to rephrase the question and answer
Volunteering information that is not specifically asked
TESTS FOR JUST CAUSE
There are seven (7) specific questions that must be answered in an arbitrator's mind to establish that a suspension or discharge was for "just cause." A positive "no" answer to one or more of the questions would indicate that "just cause" did not exist.
1. Did the USPS give to the employee forewarning or knowledge of the possible or probable disciplinary consequences of the employee's conduct? In other words, were there some kind of written (or oral) instructions governing the situation the employee is being disciplined for. This could be a notice posted on a bulletin board or found in an order book. The important thing is that it must be proven that there was actual written or oral communication of these rules before the incident occurred.
2. Was the rule or managerial order reasonably related to the orderly, efficient and safe operation of the USPS's business? Even if he/she believes it's unreasonable, the employee must obey the order. The employee can later file a grievance.
3. Did the USPS, before administering discipline to an employee, make an effort to discover whether the employee did, in fact, violate or disobey a rule or order? The employee has a right to know what he/she is being disciplined for. The investigation should be made before disciplinary action is taken. In too many cases, the action is taken without proper investigation.
4. Did the USPS conduct the investigation fairly and objectively? (No comment needed.)
5. At the investigation, was there substantial evidence that the employee was guilty as charged?
6. Has the USPS applied its rules, orders, and penalties evenhandedly and without discrimination to all employees? Have other employees been guilty of the same infraction of rules and not received a disciplinary action?
7. Was the degree of discipline administered by the Postal Service in a particular case reasonably related to (a) the seriousness of the employee's proven offense,and (b) the record of the employee in his/her service with the USPS? It would not be just to fire an employee for being tardy twice over a six month period if he/she had an unblemished record for 15 years prior to that. On the other hand, if the employee has a record of previous offenses, that record should not be used to judge whether he/she is guilty of the latest offense.
Following the above will not guarantee a winner in all grievances, but it should enhance their chances of being settled successfully.
STANDARDS DETERMINING PAST PRACTICES
It is difficult to identify any standards by which arbitrators determine if a practice exits and how much weight it should be given insofar as their decision and award is concerned. However, there are some very definite ingredients when the question of past practice is taken under consideration by the arbitrator.
1. CONSISTENT - That is to say that the practice has been granted or applied consistently, uniformly, regularly and without break.
2. CLEARLY STATED - This mean that the practice has been observed by the parties and is followed without protest or objection from one party or the other.
3. DURATION - That is to say that it has existed and been followed over a reasonably long period of time. In this regard a "bridge effect" may be of significance to some arbitrators. The bridge effect results from a practice commencing under one agreement and continuing unchanged and unprotested into a renewed agreement. As a result it bridges one collective bargaining agreement with another between the parties without having been changed or discontinued.
4. JOINTLY ACCEPTED AND ACTED UPON - This means that both parties, through their line representatives, have operated as though the practice in fact, existed and was a guiding rule. This should indicate to the arbitrators that a practice exits that is agreeable to and accepted by both parties.
One import factor that should be noted is that the frequency of the practice may not be as important as the mutual observance. In other words, a practice which occurs only three times a year and which, on each occasion, is consistently executed may have more weight on an arbitrator's decision than another practice which occurs 15 times a year but is not consistently administered from one time to another.
Proof of past practice requires documentation and evidence. It is essential that when a past practice exists and is grieved, all possible documentation and facts be submitted along with the allegation of
a violation of the past practice.
In order to be binding, past practice should have one or all of the aforementioned elements.
TYPES OF INFORMATION
Letter of warning
7/D Suspension Notice
14/D Suspension Notice
Emergency Suspension Notice Removal Notice
Grievant and or Witness Statements
Form 50 - Notification of Personnel Action
Letter of Notification
Form 1223-A - Employee Pay Stub
Form 1260 - Non-Transactor (Time Card)
Station's Time Certification Sheets
Form 3971 - Employee's Request for Leave
Form 3972 - Supervisor's Absence Analysis Control
Overtime Desired List for Quarter ____________200_
Daily Work Sheets for Pay Period _____________200_
Station's Form for Recording Curtailed Mail On All Routes
Form 1571's - Route Curtailed Mail Slips
Form 3996's - Carrier - Auxiliary Control
Form 3999's - Supervisor Street observation
Form 1838 -.Carrier's Count of Mail (Management's summary)
Form 1838-A -Carrier's Count of Parcel Post and Combination (Management
Form 1838-B -Parcel Post Firm Delivery Worksheet
Form 1838-C -Carrier's Count of Mail (Carrier Worksheet)
Form 1840’s - Summary of Count and Inspection
Form 1840A’s - Summary of Carrier's Mail Count
Form 1840B’s - Carrier Time Card Analysis
OF-346 - U.S. Government License
SY-94 - Statement of Witness
Form 91's -Employee's Accident Report
Form 1234 -Trip Card (Vehicle)
Form 1700 -Vehicle accident investigation Worksheet
Form 1700's - Supervisor's' Accident Report
Form 1769 -Accident Report
Form 4582's - Supervisor's Driving Evaluation
Form 4564 -Vehicle Operation Tag
Form 4584 -Observation of Driving Practices
Form 4586 -Accident Information
Form 4585 -Postal Driver Accident Information
CA-1 - Employee's Claim for Traumatic injury
CA-2 - Employee’s claim for occupational illness
CA-2a - Employee’s Claim for Reoccurrence of injury
CA-4 - Claims for compensation on Account of occupational Illness
CA-7 - Claims for Compensation on Account of Traumatic Injury
CA-8 - Claims for Continuing compensation
CA-16 - Request for Examination and Treatment
CA-17 - Duty Status Report
CA-20 - Attending Physician's Report
SHOP STEWARD OR GRIEVANT'S STEP A INFORMAL SUMMARY
DATE OF STEP 1 HEARING:_____________________
WHO WAS USPS REPRESENTATIVE?:________________________
WHAT IS THEIR TITLE? CHECK THE APPROPRIATE BOX
204B ( )
SUPERVISOR ( )
SUPERINTENDENT ( )
MANAGER ( )
POSTMASTER ( )
WHO WAS THE NALC REPRESENTATIVE?:_____________________________
CHECK THE APPROPRIATE BOX
1. SHOP STEWARD ( ) 2. GRIEVANT ( )
LIST ANY WITNESSES AT THE HEARING.
1. _______________________________ 1. ________________________________
2. _______________________________ 2. ________________________________
3. _______________________________ 3. ________________________________
DID YOU REQUEST MANAGEMENT TO SUPPLY ANY DOCUMENTATION?
YES ( ) NO ( )
IF YOU DID REQUEST SOMETHING, WHAT WAS IT?
WHICH USPS REPRESENTATIVE SUPPLIED THE ANSWER? TITLE:_________________________________________________
WAS THERE AN OFFER TO SETTLE? YES ( ) NO ( )
IF "YES", WHAT WAS THE OFFER? ____________________________________ _
DID YOU MAKE A COUNTER OFFER? YES ( ) NO ( )
IF "YES", WHAT WAS IT? ______________________________________________
IF THERE WAS NO OFFER MADE OR IF AN OFFER WAS REJECTED, WHAT IS THE CONTRACTUAL REASON GIVEN FOR THE DENIAL OF THE GRIEVANCE?
WERE THE TIME LIMITS WAIVED? YES ( ) NO ( )
WHO AGREED TO WAIVE THEM WITH YOU? HAVE THEM SIGN BELOW
NAME: ____________________________ TITLE: __________________________
FOR HOW LONG DID YOU AGREE TO WAIVE THE TIME LIMITS?
WAIVER OF TIME LIMITS
It is mutually agreed upon that the time limits are hereby extended for _______days from _______to _________.
This waiver is granted pertaining to the case involving _________________________
concerning the issue of ___________________________________________________
Shop Steward/Grievant Date Supervisor Date
Under the Supreme Court’s Weingarten decision, when an investigatory interview occurs, the following rules apply:
The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.
After the employee makes the request, the employer must choose from among three options. The employer must either:
Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; or
Deny the request and end the interview immediately; or
Give the employee a choice of: (1) having the interview without representation or (2) ending the interview.
If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.