This post was written by Local 1215 member Nick Ayala.
The grievance and arbitration process can be mystifying to the average worker. They might not be aware of their legal rights, or that if they file a grievance that goes to arbitration they will not have to talk to a judge or even be in a court of law. They will instead be heard by a legal professional called an arbitrator.
Here at the library, employees who believe that the library has violated our contract can have a steward initiate a grievance on their behalf. In our union, there are three levels a grievance may progress through. Once the grievance process has been exhausted, the issue can then be taken to arbitration.
At arbitration, the union and the employer both present their best arguments for the grievance. The arbitrator determines who will win a grievance and what the compensation will be for the affected party.
I attended a conference put on by the Labor Arbitration Institute which allowed both union representatives and employer representatives to hear the summaries of real grievances and have a panel of five arbitrators explain how they would have ruled and their rationales. The grievances were grouped by theme and there were some lectures on important aspects of labor law.
Some important principles are helpful for everyone to know at their worksite and it can give them confidence to identify or question workplace issues that might be grounds for grievances. This can be helpful to the steward that ultimately will investigate the situation on their behalf. One important principle that was discussed at the conference, and one that most Americans are familiar with because of how it has percolated though popular media, is due process.
Due process encompasses many values in our legal system such as the right to confront your accuser, the right to a speedy trial, the right to remain silent, etc. In the context of labor law, due process is implied in the grievance process and is part of a standard called “just cause,” although workers don’t have absolute rights to “remain silent” or to a “speedy trial”. There are parallels and conventions that do protect us, such as Weingarten Rights – your right to having a steward present during pre-disciplinary meetings.
Arbitrators also consistently find that discipline must be handed down promptly and without undue delay. While the rules of evidence aren’t as strict as in a criminal trial, the employer still must make sure that evidence against an employee is relevant and trustworthy. Arbitrators do not take kindly to hearsay evidence introduced by either party.
Another point of agreement that ran throughout the conference was how much weight arbitrators put on the length of service of most employees. If a worker has decades of service at an employer, along with a stellar record of little or no discipline, the arbitrators were willing to set aside a lengthy suspension or discharge. Knowing this can give unionized employees peace of mind. They don’t have to worry about one mistake costing them their career. Arbitrators, if they believe an employee has done wrong, aren’t interested in upholding punishment for the sake of punishment, but want to find a way to give an employee another chance.
The final topic of the conference was about the principle of past practice. Past practice is important to highlight because it generally gives unions and employees more rights than what can solely be found in the contract. Although the union does try to find a contractual basis for our grievances, there are times when workers have been benefiting from some sort of informal way of doing business that has persisted for many years.
An example from factory work is “washing up time.” In any given factory it might be that a shift ends at 5pm but at 4:45pm a manager has allowed the employees to begin taking off their gear and washing their hands. Then they can clock out at 5pm. Even though that time isn’t protected by the contract, a new manager cannot come in and take away washing up time. If a practice has been acknowledged by management and the union and has been consistently practiced for many years, it rises to the level of a contractual violation despite not being written in the contract.
Getting into the details of arbitration and labor law isn’t for everyone and certainly isn’t required; that’s why stewards are here to help. However, I hope you remember some of these important points on which arbitrators tend to agree. Tell your coworkers that you have rights on the job. Keep up that record of stellar service to the public, and don’t forget that just because something isn’t in the contract doesn’t mean that management can take it away from you!
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