How can you protect members and enforce the contract when management is trying to derail the grievance procedure? The grievance procedure is supposed to protect members from unfair discipline and hold the company accountable to the contract. Management plays a variety of games to derail the grievance procedure and undermine our rights.
The Fishing Expedition
Management has the right to ask questions in an investigatory interview. But smart Stewards won’t fall for a fishing expedition. Members who are called into the office should have their steward with them and be prepped to keep their answers short and simple. If you’re asked about something and you don’t remember, just say so. The worst thing you can do is to make up a story and give management an excuse to try to discipline you for dishonesty.
Another common management tactic is to try to get you to lose your cool. They’ll put a member or steward down, shout or hammer us with ridiculous questions…whatever it takes to provoke a reaction they can use against us. Don’t give them the satisfaction or the upper hand. Keep your cool and think twice before reacting to a statement or question. A member or steward can stop a meeting at any time and leave the room to calm things down and keep on track.
Shifting Burden of Proof
Don’t let management turn the tables. In a grievance hearing, the shop steward or union representative should always insist that management present its case first by asking direct and specific questions. Later in the grievance process make management answer the question, “Is that your entire case?” Then, use the Seven Steps of Just Cause to show that management failed to meet its burden of proof or that the discipline is too severe.
Management will frequently ask a steward or union rep to drop one grievance to get a settlement on another. This is a recipe for permanent surrender. Once you go down this road, management will never settle a grievance without trading it for something. Grievance settlements can involve compromise. But all grievances should be pursued on their individual merits.
Supervisors love to change the subject to get out of resolving an issue. Instead of discussing a grievance, they’ll bring up other problems or side issues. Redirect the conversation back to the issue at hand as often as it takes: “We can discuss that later. Right now, we’re talking about this grievance.” Don’t take the bait and let management sidetrack the meeting.
This is the most common management game and the toughest to deal with. Probably the all-time favorite. By foot-dragging, management hopes you’ll lose interest and go away. This is why the grievance steps have time limits.
Generally speaking, it’s easier to resolve grievances at a lower level in the grievance procedure. Take action early and target the people who have the ability to settle the issue. By using smart strategies, we can beat management at their grievance games.
Remember the company has a duty to bargain in good faith. Under Section 8(a)(5) of the NLRA, the employer must negotiate with the union in good faith. That does not mean that the employer must agree to union proposals. But it does prohibit certain management tactics which are considered by the NLRB to be proof that the employer does not intend to negotiate with the union. Violation of the duty to bargain in good faith is an unfair labor practice (ULP). Typical examples include the following:
- Refusing to supply information requested by the union in order to perform its duties as bargaining representative.
- Refusing to meet at reasonable times with union negotiators, or attempting to dictate who those union negotiators may be or how large a team the union can use.
- Refusing to abide by ground rules for negotiations agreed to by both sides.
- Attempting to bargain directly with the membership instead of with the union’s official negotiators.
- Attempting to discourage membership support for the union negotiators by using threats, promises, punishment, or discrimination.
- Withdrawing approval of particular parts of the contract on which the two sides had already reached tentative agreement.
- Refusing to negotiate over a mandatory subject of bargaining or refusing to settle without agreement from the union on a non-mandatory subject.
- Unilaterally changing wages, hours, or working conditions before reaching impasse in bargaining or without talking to the union first (unless you have waived this right in the contract).
- Engaging in “surface bargaining”—going through the motions of negotiating but taking positions that clearly could never be the basis of give-and-take bargaining.
Remember Section 8(d)(3) of the NLRA requires the union to negotiate in good faith as well.