Contract Administration

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 agree- ment. 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

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be 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 opera- tions, 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 dis- charged 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.

1 For a summary of this and other team-based environments, see M. Kaminski, “New Forms of Work Organization and Their Impact on the Grievance Procedure,” in A. E. Eaton and J.H. Keefe, eds., Employment Dispute Resolution and Worker Rights (Champaign, IL: Industrial Relations Research Association, 1999), pp. 219–246.

 

 

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Discipline Discipline imposed for infractions of rules is one of the most frequently disputed issues. Discipline often involves demotion, suspension, or dis- charge 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 punish- ment, 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 automati- cally 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 result- ing 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

2 R. D. Arvey and A. P. Jones, “The Use of Discipline in Organizational Settings: A Framework for Future Research,” in L. L. Cummings and B. M. Staw, eds., Research in Organizational Behavior, 7 (Greenwich, CT: JAI Press, 1985), pp. 367–408. 3 P. A. Bamberger and L. H. Donahue, “Employee Discharge and Reinstatement: Moral Hazards and the Mixed Consequences of Last Chance Agreements,” Industrial and Labor Relations Review, 53 (1999), pp. 3–19.

 

 

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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 per- form 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, lay- offs, transfers, and shift assignments. Most contracts specify that senior- ity, seniority and merit, or experience on a particular job will govern personnel assignments. Disputes often relate to layoffs and shift pref- erence. 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 cus- tomer 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.

 

 

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Supervisors 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 manage- ment 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 uni- laterally 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 nar- rowly 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 identi- fied problem. 4

Subcontracting Unless the contract allows complete discretion to the company in sub- contracting, work done by bargaining-unit members may not be subcon- tracted 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.

4 M. Harcourt and S. Harcourt, “When Can an Employee Refuse Unsafe Work and Expect to Be Protected from Discipline? Evidence from Canada,” Industrial and Labor Relations Review, 53 (2000), pp. 684–703. 5 The Supreme Court decision in Fibreboard Paper Products v. NLRB, 379 U.S. 203 (1964) requires bargaining by management if a union requests when subcontracting is being considered, unless the union has expressly waived its right in this area; however, this rule has been relaxed somewhat by First National Maintenance v. NLRB, 452 U.S. 666 (1981) and later by the NLRB when it held that removal of union work to another facility of the company would be permissible if bargaining has reached an impasse [Milwaukee Spring Div. of Illinois Coil Spring Co., 115 LRRM 1065 (1984), enforced by the U.S. Court of Appeals, District of Columbia Circuit, 119 LRRM 2801 (1985)] or for a legitimate business reason if there were no antiunion animus [Otis Elevator Co., 115 LRRM 1281 (1984)].

 

 

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Outsourcing 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 pro- cess. An example of this might involve outsourcing call center work cur- rently 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 work- ing 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 establish- ment 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 depend- ing 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), work- ing 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

6 Ford Motor Co. v. NLRB, 441 U.S. 448 (1979). 7 M. H. LeRoy, “The Presence of Drug Testing in the Workplace and Union Member Attitudes,” Labor Studies Journal, 16, no. 3 (1991), pp. 33–42. 8 D. Lewin and R. B. Peterson, The Modern Grievance Procedure in the United States (Westport, CT: Quorum, 1988).

 

 

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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 estab- lish 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 9 R. L. Walker and J. W. Robinson, “The First-Line Supervisor’s Role in the Grievance Procedure,” Arbitration Journal, 32 (1977), pp. 279–292. 10 S. Briggs, “The Steward, the Supervisor, and the Grievance Process” Proceedings of the Industrial Relations Research Association, 34 (1981), pp. 313–319.

 

 

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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 rel- atively 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 supervi- sor 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 com- mitment. 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 initia- tion and settlement than were workplace characteristics. 12

11 V. G. Devinatz, “A Program for Building Cooperative Shop Floor Labor Relations: The UAW, The International Harvester Corporation and the ‘New Look’ Procedure,” Labor Studies Journal, 20, no. 3 (1995), pp. 5–18. 12 B. Bemmels, Y. Reshef, and K. Stratton-Devine, “The Roles of Supervisors, Employees, and Stewards in Grievance Initiation,” Industrial and Labor Relations Review, 45 (1991), pp. 15–30.

FIGURE 14.1 Example of a Written Grievance

Source: M. S. Trotta, Handling Grievances: A Guide for Labor and Management (Washington, DC: Bureau of National Affairs, 1976), pp. 141–142.

I have just been given a job review, as a result of which I am now on the second highest eligibility list. I now want clear and accurate answers with supporting information to the following questions:

1. Why was this job review given five months after its effective date and on the day before my vacation?

2. Why change my rating for “manner and interest” from excellent to good? It was admitted that I am excellent in this category, but only to those whom I think will buy, and that the reviewer did not know of any mistakes in judgment I had made.

3. Why change “alertness to service” from excellent to good? Since I was told by the reviewer that I was too “selective” in both this and the previous category, I think that (a) one or the other should be eliminated, or (b) perhaps they should be combined, or (c) both reviewer and employees should be made aware of whatever difference there may be.

4. Why change “cooperation” from excellent to good? Since I was told that my cooperation with the other eight people in the department was excellent, I would like to know exactly what incidents took place and who was involved, resulting in this change.

It also seems that there is a clear, consistent pattern of downgrading everyone in the department from their previous ratings and that job reviews will be given to employees just prior to their going on vacation. It is my distinct impression that the present reviewers are not only ignorant of previous reviews but also feel that they do the job much better than the previous reviewers. If they can’t come up with some better reasons for the changes than those I have heard, then I think they are doing a remarkably poor job.

 

 

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Stewards are generally more satisfied in their grievance processing roles if the procedure permits oral grievances and if some grievance com- mittee 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 pre- sents 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 direc- tor. 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 pre- sented. 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

13 B. Bemmels, “Shop Stewards’ Satisfaction with Grievance Procedures,” Industrial Relations, 34 (1995), pp. 578–592.

 

 

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politically critical for current officers. Satisfaction of union leaders with the process was positively related to autonomy and the proportion of griev- ances 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 griev- ances and positively related to the importance of issues and early settle- ment. 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

14 B. Bemmels and D. C. Lau, “Local Union Leaders’ Satisfaction with Grievance Procedures,” Journal of Labor Research, 22 (2001), pp. 653–657. 15 Lewin and Peterson, Modern Grievance Procedure, p. 89.

FIGURE 14.2 Grievance Procedure Clause

9.02 Grievances

Step 1 The employee and the departmental steward, if the employee desires, shall take the matter up with his or her supervisor. If no settlement is reached in Step 1 within two working days, the grievance shall be reduced to writing on the form provided for that purpose.

Step 2 The written grievance shall be presented to the supervisor or the general supervisor and a copy sent to the production personnel office. Within two working days after receipt of the grievance, the general supervisor shall hold a meeting, unless mutually agreed otherwise, with the supervisor, the employee, the departmental steward, and the chief steward.

Step 3 If no settlement is reached in Step 2, the written grievance shall be presented to the departmental superintendent, who shall hold a meeting within five working days of the original receipt of the grievance in Step 2 unless mutually agreed otherwise. Those in attendance shall normally be the departmental superintendent, the general supervisor, the supervisor, the employee, the chief steward, the departmental steward, a member of the production personnel department, the president of the UNION or his representative, and the divisional committeeman.

Step 4 If no settlement is reached in Step 3, the UNION COMMITTEE and an international representative of the UNION shall meet with the MANAGEMENT committee for the purpose of settling the matter.

Step 5 If no settlement is reached in Step 4, the matter shall be referred to an arbitrator. A representative of the UNION shall meet within five working days with a representative of the COMPANY for the purpose of selecting an arbitrator. If an arbitrator cannot be agreed upon within five working days after Step 4, a request for a list of arbitrators shall be sent to the Federal Mediation and Conciliation Service. Upon obtaining the list, an arbitrator shall be selected within five working days. Prior to arbitration, a representative of the UNION shall meet with a representative of the COMPANY to reduce to writing wherever possible the actual issue to be arbitrated. The decision of the arbitrator shall be final and binding on all parties. The salary, if any, of the arbitrator and any necessary expense incident to the arbitration shall be paid jointly by the COMPANY and the UNION.

 

 

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at 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, adver- sarial 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 autho- rization 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 bargain- ing relationship exists, and a supervisor’s contractual knowledge is low. 21

16 Ibid., p. 170. 17 Ibid., pp. 98–100. 18 J. A. Davy, G. Stewart, and J. Anderson, “Formalization of Grievance Procedures: A Multi-Firm and Industry Study,” Journal of Labor Research, 13 (1992), pp. 307–316. 19 R. P. Chaykowski, G. A. Slotsve, and J. S. Butler, “A Simultaneous Analysis of Grievance Activity and Outcome Decisions,” Industrial and Labor Relations Review, 45 (1992), pp. 724–737. 20 Lewin and Peterson, Modern Grievance Procedure, p. 89. 21Ibid., pp. 98–100.

 

 

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Most contracts rely on a four-step procedure, settlement rates are higher in steps 2 and 3, contractual procedures and time schedules are closely fol- lowed, 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.

22 J. A. Davy and G. W. Bohlander, “Recent Findings and Practices in Grievance-Arbitration Procedures,” Labor Law Journal, 43 (1992), pp. 184–190.

FIGURE 14.3 Grievance Procedure Steps

Union

Employee files grievance

Steward presents to supervisor

Steward submits to IR

Steward submits to negotiating committee

Submits to IR

director ?

Management

Requested relief granted

Supervisor denies

?

Stop process Arbitration

No

No

Yes

Yes

No

NoYes

Yes

Yes

Denied Sustained

No No

Submits to arbitration

Award

IR representative

denies?

IR director denies

?

 

 

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METHODS 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 reso- lution 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

23 See Journal of Labor Research, 19, no. 1 (1998), for additional details. 24 S. B. Goldberg and J. M. Brett, “An Experiment in the Mediation of Grievances,” Monthly Labor Review, 106, no. 3 (1983), pp. 23–30.

 

 

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A 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 griev- ance 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 par- ties 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 sup- plied 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 reflect- ing 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

25 P. Feuille, “Grievance Mediation,” in A. E. Eaton and J.H. Keefe, eds., Employment Dispute Resolution and Worker Rights (Champaign, IL: Industrial Relations Research Association, 1999), pp. 187–218. 26 S. B. Goldberg, “How Interest-Based, Grievance Mediation Performs over the Long Term,” Dispute Resolution Journal, 59, no. 4 (2004), pp. 8–15. 27 M. T. Roberts, R. S. Wolters, W. H. Holley Jr., and H. S. Feild, “Management Perceptions of Grievance Mediation,” Arbitration Journal, 45, no. 3 (1990), pp. 15–23. 28 R. N. Block and A. R. Olson, “Low Profile/High Potential,” Dispute Resolution Journal, 51, no. 4 (1996), pp. 54–61. 29 J. M. Brett and S. B. Goldberg, “Wildcat Strikes in Bituminous Coal Mining,” Industrial and Labor Relations Review, 32 (1979), pp. 465–483.

 

 

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strikes 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 arbi- trate 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 man- agement, 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

30 Ibid. 31 Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235 (1970). 32 Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212 (1979). 33 Complete Auto Transit v. Reis, 451 U.S. 401 (1981). 34 United Mine Workers v. Bagwell, 512 U.S. 821 (1994).

 

 

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request 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 employ- ment 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 viola- tion. 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 pun- ishment 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, repre- sented or not, are able to seek legal redress for employer actions violating

35 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The NLRB has ruled that nonunion employees are not entitled to have another employee present during a disciplinary investigation [IBM Corp., 341 NLRB 148 (2004), which reversed Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000) enforced, which had extended “Weingarten” rights to nonunion employees]. 36 P. E. Starkman, “The Good, the Bad, and the Uncooperative: Dealing with the Uncooperative Employee during an Internal Investigation,” Employee Relations Law Journal, 25, no. 1 (1999), pp. 69–92. 37 Wright Line, 251 NLRB 1083 (1980). 38 For a detailed review of fair representation issues, see E. C. Stephens, “The Union’s Duty of Fair Representation: Current Examination and Interpretation of Standards,” Labor Law Journal, 44 (1993), pp. 685–696.

 

 

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civil 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 minor- ity 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 vig- orous defense must be shown. Because the union is the exclusive bargain- ing 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 man- ner 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) indi- viduals 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 senior- ity of the workers from the acquired company rather than starting at the

39 325 U.S. 711 (1945). 40 B. Aaron, “The Individual’s Legal Rights as an Employee,” Monthly Labor Review, 86 (1963), pp. 671–672. 41 140 NLRB 181 (1962). 42 Humphrey v. Moore, 375 U.S. 335 (1964).

 

 

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acquisition 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 medi- cal 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 repre- sentation 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 arbitra- tion. 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 oppo- site 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

43 386 U.S. 171 (1967). 44 Smith v. Hussman Refrigerator Co. & Local 13889, United Steelworkers of America (U.S. Court of Appeals, 8th Circuit, 1979); certiorari denied by U.S. Supreme Court, 105 LRRM 2657 (1980).

 

 

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collects 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 inter- pretation 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, pro- vides 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 griev- ance 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, par- ticularly in areas where a candidate it would like to see defeated is lead- ing the advocacy.

45 Bowen v. U.S. Postal Service, 459 U.S. 212 (1983). 46 C. W. Summers, “The Individual Employee’s Rights under the Collective Agreement: What Constitutes Fair Representation?” in J. T. McKelvey, ed., Duty of Fair Representation (Ithaca, NY: New York State School of Industrial and Labor Relations, Cornell University, 1977), pp. 60–83.

 

 

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Besides the responses of union officials, rank-and-file members may engage in tactics affecting the grievance process. If a large number of griev- ances 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 set- tle or grant the grievances. 47 Grievants might not wait passively for an ulti- mate 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 negotiat- ing 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 disci- plinary 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

47 J. W. Kuhn, Bargaining in Grievance Settlement (New York: Columbia University Press, 1961). 48 P. Suschnigg, “Measuring Bargaining Power through Grievance Outcomes: Results from an Ontario Steel Mill,” Relations Industrielles, 48(1993), pp. 480–500. 49 Kuhn, Bargaining in Grievance Settlement, p. 79. 50 Ibid., p. 14.

 

 

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one 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 sim- ply 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 super- visor 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 representa- tive, 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 domi- nance were involved in greater numbers of grievances. 51 Higher com- mitment 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 change- overs and heavy schedules; when few grievants were involved; when the steward was politically entrenched; and when they occurred in nonas- sembly plants. In cases where grievances had low factual clarity, politi- cal 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

51 D. R. Dalton and W. D. Todor, “Manifest Needs of Stewards: Propensity to File a Grievance,” Journal of Applied Psychology, 64 (1979), pp. 654–659. 52 D. R. Dalton and W. D. Todor, “Antecedents of Grievance-Filing Behavior: Attitude/Behavioral Consistency and the Union Steward,” Academy of Management Journal, 25 (1982), pp. 158–169. 53 C. E. Labig Jr. and C. R. Greer, “Grievance Initiation: A Literature Survey and Suggestions for Future Research,” Journal of Labor Economics, 9 (1988), pp. 1–27.

 

 

Chapter 14 Contract Administration 483

rate; 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 rela- tions 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 stew- ards 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

54 D. Meyer and W. Cooke, “Economic and Political Factors in Formal Grievance Resolution,” Industrial Relations, 27 (1988), pp. 318–335. 55 M. M. Kleiner, G. Nickelsburg, and A. Pilarski, “Monitoring, Grievances, and Plant Performance,” Industrial Relations, 34 (1995), pp. 169–189. 56 M. M. Kleiner and A. M. Pilarski, “Does Internal Union Political Competition Enhance Its Effectiveness?” in S. Estreicher, H. Katz, and B. Kaufman, eds., Internal Governance and Organizational Effectiveness of Unions (New York: Kluwer Publishing, 2001). 57 D. Meyer, “The Political Effects of Grievance Handling by Stewards in a Local Union,” Journal of Labor Research, 15 (1994), pp. 33–51. 58 P. Cappelli and K. Chauvin, “A Test of an Efficiency Model of Grievance Activity,” Industrial and Labor Relations Review, 45 (1991), pp. 3–14.

 

 

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of 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 griev- ance 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 sug- gests 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 char- acteristics. Demographic and job-related aspects are generally poor pre- dictors of grievance activity, 61 although evidence finds that younger, 62 male, 63 minority, 64 and better-educated employees 65 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 them- selves 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

59 D. I. Rees, “Grievance Procedure Strength and Teacher Quits,” Industrial and Labor Relations Review, 45 (1991), pp. 31–43. 60 B. S. Klaas, “Determinants of Grievance Activity and the Grievance System’s Impact on Employee Behavior: An Integrative Perspective,” Academy of Management Review, 14 (1989), pp. 445–458. 61 Labig and Greer, “Grievance Initiation”; and S. Bacharach and P. Bamberger, “The Power of Labor to Grieve: The Impact of the Workplace, Labor Market, and Power Dependence on Employee Grievance Filing,” Industrial and Labor Relations Review, 57 (2004), pp. 518–539. 62 P. Ash, “The Parties to the Grievance,” Personnel Psychology, 23 (1970), pp. 13–38; J. Price, J. Dewire, J. Nowack, K. Schenkel, and W. Ronan, “Three Studies of Grievances,” Personnel Journal, 55, no. 1 (1976), pp. 32–37; Lewin and Peterson, Modern Grievance Procedures, p. 174; M. E. Gordon and R. L. Bowlby, “Reactance and Intentionality Attributions as Determinants of the Intent to File a Grievance,” Personnel Psychology, 42 (1989), pp. 309–329; and D. Lewin and R. B. Peterson, “Behavioral Outcomes of Grievance Activity,” Industrial Relations, 38 (1999), pp. 554–576. 63Lewin and Peterson, Modern Grievance Procedures, p. 174; and Lewin and Peterson, “Behavioral Outcomes.” 64 Ibid.; Ash, “Parties to the Grievance”; and Lewin and Peterson, “Behavioral Outcomes.” 65 Ash, “Parties to the Grievance”; Lewin and Peterson, Modern Grievance Procedures, p. 174; Price et al., “Three Studies”; but Lewin and Peterson, “Behavioral Outcomes,” found the opposite. 66 R. E. Allen and T. J. Keaveny, “Factors Differentiating Grievants and Nongrievants,” Human Relations, 38 (1985), pp. 519–534.

 

 

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486 Labor Relations

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 reac- tions 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, process- ing, 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 griev- ance 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 associ- ated 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 disciplin- ary grievances, possibly due to escalating consequences for further disci- pline 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

67 B. Klaas and G. G. Dell’Omo, “The Determinants of Grievance Filing Behavior: A Psychological Perspective,” paper presented at the Academy of Management meetings, Anaheim, CA, 1988. 68 Gordon and Bowlby, “Reactance and Intentionality Attributions.” For an excellent review of research on the grievance procedure, see D. Lewin, “Theoretical and Empirical Research on the Grievance Procedure and Arbitration: A Critical Review,” in A. E. Eaton and J. H. Keefe, eds., Employment Dispute Resolution and Worker Rights (Champaign, IL: Industrial Relations Research Association, 1999), pp. 137–186. 69 B. S. Klaas, H. G. Heneman III, and C. A. Olson, “Grievance Activity and Its Consequences: A Study of the Grievance System and Its Impact on Employee Behavior,” unpublished paper, University of South Carolina, Columbia, 1988. 70 B. S. Klaas, H. G. Heneman III, and C. A. Olson, “Effects of Grievance Activity on Absenteeism,” Journal of Applied Psychology, 76 (1991), pp. 818–824. 71 Lewin and Peterson, Modern Grievance Procedures, pp. 185–187. 72 Ibid., p. 189. 73 Lewin and Peterson, “Behavioral Outcomes.”

 

 

Chapter 14 Contract Administration 487

A 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 permis- sive 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 Manage- ment 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 griev- ance requires involvement of stewards, the grievant, and supervisors at the first step; industrial relations representatives, national union repre- sentatives, 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 pro- cedure (only in the union mills) was associated with higher productivity, perhaps because employees had an outlet for complaints that would oper- ate while production continued. 78

When management and union representatives approach grievance resolution in a cooperative relationship, they are better able to achieve

74 C. E. Labig Jr. and I. B. Helburn, “Union and Management Policy Influences on Grievance Initiation,” Journal of Labor Research, 7 (1986), pp. 269–284. 75 B. S. Klaas, T. W. Gainey, and G. G. Dell’Omo, “The Determinants of Disciplinary System Effectiveness: A Line Management Perspective,” Industrial Relations, 38 (1999), pp. 542–553. 76 T. R. Knight, “Feedback and Grievance Resolution,” Industrial and Labor Relations Review, 39 (1986), pp. 585–598. 77 I. Ng and A. Dastmalchian, “Determinants of Grievance Outcomes: A Case Study,” Industrial and Labor Relations Review, 42 (1989), pp. 393–403. 78 C. Ichniowski, “The Effects of Grievance Activity on Productivity,” Industrial and Labor Relations Review, 40 (1986), pp. 75–89.

 

 

488 Labor Relations

integrative resolutions. Those with competitive goals are more likely to take a closed-minded approach. Seniority issues can be dealt with cooper- atively more often, while disciplinary issues are often competitive. Coop- erative 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 manage- ment spend the most time. Not only do the parties respond voluntarily to differences in interpretation, but they also must, by law, bargain on prac- tices 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 dis- putes 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.

79 D. Tjosvold and M. Morishima, “Grievance Resolution: Perceived Goal Interdependence and Interaction Patterns,” Relations Industrielles, 54 (1999), pp. 527–548.

Discussion Questions

1. Should management be required to consult with the union about dis- cipline before it is imposed rather than simply providing for grievance processing after its imposition?

2. Should unions be allowed to drop an employee’s grievance if the employee desires arbitration?

3. How does the grievance procedure make subtle changes in the meaning of the contract possible over time?

4. What are the advantages and disadvantages of a program for reducing the number of written grievances?

 

 

Chapter 14 Contract Administration 489

Case: New Production Equipment: Greater Efficiency with Less Effort or a Speedup?

Key Terms Contract administration, 463 Last chance agreement (LCA), 464

Umpire, 470 Project labor agreements (PLAs), 474

Fair representation, 477 Fractional bargaining, 481

Carolyn Foster had just returned to her office from the weekly plant IR representatives’ meeting. Her secretary had left a note to call George Lowrey, the superintendent of the forklift assembly operation. She called back and immediately recognized from the serious- ness of George’s tone that a major problem must be brewing in his area. They both agreed she would come right over.

After George had welcomed her into his office, he leaned forward and, putting his chin in his hands, said, “Carolyn, I feel like I’m sit- ting on a powder keg here. Last year we put in the new Simplex Process assembly line for our forklifts. It had a rated capacity of 35 units an hour. When we installed it, we started up at 28 units, which is the same as the old line, to shake it down and get the bugs out. The new line automates more of the assembly, so each worker has less of a physical demand than before. Well, last week we figured we had all the bugs ironed out, so we raised the speed to 35. We figure each worker has to put out about the same amount of effort as under the old system.

“This morning, Steve Bonneville, the shop steward, and three of my general supervi- sors came in, all arguing. Bonneville had a fistful of grievances and was yelling about a ‘speedup.’ Anyway, the upshot is that he wants the employees to be advanced one skill level to compensate for the additional effort and more difficult working conditions under Section 7.03 of the contract.

“Carolyn, we can’t give them a penny more and remain competitive. Besides that, if they get a raise, the whole plant will paper us with classification grievances. Bonneville is running for union president because Matt Duff is retiring, and if he’s successful with this grievance, he’s a shoo-in. All we need is a long strike over some penny-ante issue and a bunch of hotheads like him running the show. What can you do to help me?”

Carolyn had been busy taking notes about the problem. She asked, “Do you have the grievances?” George nodded and handed them to her. Then she said, “I’ll study the grievances, the contract, and the union situ- ation and get back to you in time for us to plan a step 3 response. I’ll be back to you this afternoon.”

DIRECTIONS

1. Draft a strategy for the company to fol- low. Consider the immediate problem and the possibilities of precedents being set by your action. List the advantages and disad- vantages of your chosen strategy.

2. Prepare a scenario in which your response is presented to Steve Bonneville. How is he likely to react? What steps do you expect he will take as a result of your response?

3. What conditions do you consider neces- sary for these grievances to be resolvable at step 3?