Shoptalk: Getting a Grip on Grievances

By Ryan Boyd, Day Ramp Steward

The grievance procedure plays a central role in defending our rights in a unionized workplace. However, grievances are often misunderstood, and members can feel apprehensive about filing. Many are fearful of retaliation, a concern that is not unwarranted. Having a fuller understanding of what grievances are — and what they are not — can help overcome some of the reluctance associated with this important right.

It is a common misperception that once a union contract is negotiated, collective bargaining ends and the union assumes a defensive posture around whatever rights it has attained. In fact, collective bargaining is not limited to the periodic negotiation of a written agreement. It is actually an ongoing process that happens on a day-to-day basis. The grievance procedure is the formal mechanism by which union members negotiate with their employer in real time, as issues arise.

Shop Steward Ryan Boyd addresses a picket over split wages.

Grievances as a Legal Right

Ever since the early 1900s, when collective bargaining was made the official policy of the United States government, it has been unlawful for employers to interfere with the application of this right. Because the grievance procedure is a form of collective bargaining, the prohibition on interference applies with equal force.

Not only are employers prohibited from retaliation and other forms of intimidation when processing grievances, they are held to the affirmative standard of bargaining in “good faith.” This means the process of dispute resolution in the workplace has already been assigned: the boss doesn’t get to decide whether or not he will participate.

Any attempt by an employer to get around the grievance procedure exposes them to legal peril. If the boss says, “This department has never had a grievance and we aren’t about to start now,” an appropriate response is: “Would you prefer the union file an Unfair Labor Practice (ULP) charge?”

When a grievance is filed, the manager has to explain it to the company’s labor relations department, as a normal part of doing business in a unionized workplace. When a ULP charge is filed, management may need to explain it to a federal investigator, as part of a probe into unlawful activity. Which course is preferable to someone who wants a long career in management?

Employers sometimes think they can get away with unlawful activity, either because they don’t know it is unlawful, or because they are confident the behavior will go unchallenged. It is the union’s role to address either scenario. An informed, proactive union presence will make the consequences for such activity clear, and management will know that whatever they attempt will be thoroughly documented for the case to be filed against them. Managers wield a lot of power, but their positions are insecure. Creating legal problems for the company can quickly make a boss look less like an asset and more like a liability.

Teamsters flash their penalty paychecks after successful grievances.

What Qualifies as a Grievance?

In technical terms, a grievance is a formal complaint — it documents an issue that is disputed between an employer and the unionized workforce. Documentation has the advantage of creating a record that can be used to challenge management’s version of events down the line.

Over time, documentation also establishes the bargaining history of a particular union local with the company. If a local does not consistently fight practices that are ambiguous in the contract, an arbitrator may decide the union has surrendered on that issue. Grievances are key to creating a record of protest.

In more general terms, the kind of issue that qualifies as a grievance is not always obvious. Collective bargaining agreements usually try to draw a rough outline. For example, the Local 623 Supplemental Agreement describes grievances as “any controversy, complaint, misunderstanding or dispute arising as to interpretation, application or observance of any of the provisions of this Agreement or Supplements hereto.”

On the other end of the spectrum, an arbitrator once wrote: “Generally speaking, if a man thinks he has a grievance, he has a grievance.”* This is because what qualifies as a grievance is sometimes not known until it is tried by the grievance procedure. Ideally, stewards and other union representatives will have a sense of whether a grievance has merit or whether an issue is best addressed by other means.

Putting Your Boss on the Sidelines

Perhaps the core element that makes grievances a superior means of dispute resolution is the ability to appeal an outcome multiple levels above your own boss. In a non- unionized workplace, employees are limited to pleading with their boss, or taking the risky step of going over the boss’s head — for example, to a higher-up or to HR.

The grievance procedure is structured in a way that makes going to the boss with a problem only step one. This minimizes the influence any single manager has on deciding an issue, and helps take their personal preferences out of the picture. If a manager is wrong, the possibility exists they will be corrected by a labor representative at step two. If the company is wrong, it is possible they will be corrected by a labor panel or, in the final judgment, via binding arbitration. This upends the power dynamic that would otherwise exist between a boss and employees: instead of an absolute ruler, the boss becomes one player among several.

This gets at the main objection the business community has with unions and the collective bargaining process in general: it shifts workplace power away from management and toward employees. Without unions, employers decide what goes. Without collective bargaining and the grievance procedure, the boss has the final say when resolving workplace conflicts.

Companies often say they have their employees’ best interests at heart, but they won’t give their workforce the freedom to enact those interests. This tells you that their priority is control. Whatever they give, they also want the right to take away. And recent history reveals that they want to take away more and more.

Use your grievance procedure to ensure that you and your coworkers retain maximum advantage in the face of managerial power. If your boss has a problem with you filing a grievance, tell them their problem is not with you, it is with federal law, and they should think twice about which side of the law they want to be on.

* See Cudahy Packing Co., 7 LA 645, 646 (Fisher, 1947)