Another concept that is useful to understand in evaluating and considering grievances is the concept of burden of proof. Burden of proof refers to which party has the risk of losing if it cannot successfully prove its case. There are two types of grievances — those dealing with contract language interpretation and those involving discipline. The important distinction between them is who has the burden of proof, because the side with the burden of proof has a more difficult job.
In contract interpretations, the union has the burden of proof. We are claiming that the company has been violating the contract, so we will need to convince/prove to them (and if it goes that far, an arbitrator) that our understanding of the contract is correct. The union must establish the damages and/or an appropriate remedy.
In a discipline case, the company has the burden of proof. They have disciplined someone, and we are demanding that they prove they had just cause for the discipline. If, for example, they can’t show evidence that the worker actually did what they accuse him of, then they have not met their burden of proof, and an arbitrator will rule in our favor.
Sometimes a union will give away the advantage we have in a discipline case by claiming disparate treatment — the company is treating the worker unfairly. When that happens, the burden of proof shifts back to the union. Now the union is claiming the company did something wrong, so we have to prove our case. It’s usually best to avoid this approach.