Grievance Process an Effective Method

¶ … grievance process an effective method for resolving workplace disputes? The dispute between Swallows and Green illustrates why a grievance process established by a collective bargaining agreement is not always an effective method for resolving workplace disputes. The legal duties established by federal labor law do not give non-union employees the right to participate in remedial procedure, such as a grievance process, that is created for union employees by a collective bargaining agreement.

While a collectively bargained grievance process can be an effective tool for effectively resolving disputes between employers and unionized employees, it does not do anything to help non-union employees because unions do not have a legal duty to give the same procedural rights to individuals who are not a part of the bargaining unit. Green's allegation that the union breached its duty of fair representation raises a question about the scope of duties imposed upon a union when it addresses disputes through a grievance process.

The primary source for those duties is the collective bargaining agreement between the union and the employer. The secondary source of those duties is federal labor law, including the National Labor Relations Act, the Labor Management Relations Act, and other related legislation.

Because federal law does not create any duties for a union to include non-union employees in its grievance process, a non-union employee can look to the grievance process for redress only when the collective bargaining agreement (or an employer's own workplace policy) specifically provides that non-union employees have the same access to the grievance process as their union counterparts. See IBM Corp., 341 NLRB No. 148 (2004).

Of course, in many situations, neither an employer nor the union will have any incentive to extend rights created by a collective bargaining agreement to individuals who are not part of the bargaining unit. With respect to the dispute between Green and Swallows, it appears from the facts of the case that the collective bargaining agreement did not include any provisions under which Green would have a right to file a grievance and to have her grievance heard by the union.

Similarly, there is no information to suggest that the union had exclusive control over the disciplinary process, a circumstance under which the union would have a duty to represent Green in the same way that it represented Swallows. IBM Corp. Accordingly, the union simply had no duty to formally take a grievance from Green or to consider it in the same way that it considered Swallows' grievance.

Green's response to the way in which the grievance process was conducted shows why there can be a perception of unfairness in a workplace environment where union and non-union employees work side-by-side with slightly different sets of rights. Green apparently believed that she had a right to participate in the grievance process because, when she asserted that she wanted to file a grievance, no-one told her that she could not do so.

Moreover, when union officials were considering Swallows' grievance, they testimony from Green, confirming her belief that she was participating in the process as a grievant with her own claim and not just as a witness in connection with a union employee's claim. Given her involvement in the process, and given the failure to inform her of her rights by both the union and the employer, it is no wonder that Green believed that her interests had not been protected or the union had failed to act on her behalf.

And Green's perception of unfairness was exacerbated by the fact that Swallows' complaints about the employer's disciplinary action were redressed by the grievance process while her own complaints were not. This situation shows that disputes between employees cannot be effectively resolved by the grievance process alone when the process is reserved for union employees and when the dispute involves non-union as well as union employees.

Employers must have specific policies to supplement the grievance process so that such "mixed" disputes do not create an impression of arbitrary or unfair decision-making by both the union and the employer. 2. How would you suggest that unions and employers improve their ability to correctly interpret the collective agreement? From the perspective of employees, one of the principal benefits of collective bargaining and union representation is assuring a reasonable balance of power between labor and management in workplace decision-making.

Many collective bargaining agreements attempt to achieve such a balance by, among other things, giving employees the right to participate in certain decisions about how work will be assigned, how jobs will be classified, and how workers will be paid. The collective bargaining agreement at issue in Case Study 11-1 attempts to strike a balance between giving employees a role in important decision-making while reserving traditional management prerogatives to control fundamental decisions about profit and loss.

The problem in Case Study 11-1 arises because the terms of the collective bargaining agreement are somewhat ambiguous about how certain decisions are classified and about which of those decisions are reserved to the exclusive discretion of management and which ones are reserved for collaborative decision-making between the union and management. Effective union participation in managerial decision-making is only possible when the provisions of the collective bargaining agreement are absolutely clear about how decision-making authority is to be allocated.

In this case, the ambiguity relates to the distinction between decisions about delegating certain categories of work to contractors, over which management has sole discretion, and decisions about creating new jobs, in which employees have the right to participate. Management justifies its decision to contract out janitorial work by relying on Article 4.1.2 of the collective bargaining agreement, which provides that the "rights of management" include the "right to direct the working forces, including the.

introduction of new, improved, or different production, maintenance, service, or distribution methods or facilities, the placing of production, service maintenance, or distribution work with outside contractors or subcontractors. Management clearly understands the reclassification of janitorial functions as being a decision that is exclusively within the rights of management. In deciding to contract out janitorial work, management created new duties for contract janitorial workers, which it apparently identifies as part of developing a "new, improved, or different" method for providing maintenance and service. From the.