.: Another Headline
.: Thank You!
What is a grievance?
The term grievance refers to a written statement
made according to the grievance procedure included in the collective
agreement. It deals with any dispute concerning the interpretation,
the application, the administration or the alleged violation of
any clause of the collective agreement.
The purpose of the grievance procedure
The grievance procedure is at the heart of the collective
agreement. It allows the union steward to draw up a grievance on
behalf of the members. It is recognition by the employer that members
have the right to he heard by management.
The procedure can have two to four steps. At each
step, representatives of the union and the employer meet. Make sure
you know the time limits for each step of the procedure.
When a case is settled through a grievance, it can
serve as a precedent, or a model on which the merits of similar
cases will be assessed in the future. Precedents are usually very
important because they establish how the union and the employer
will interpret the collective agreement from then on.
The Grievance Investigation
Gather the facts from the member who has a complaint.
The steward must listen closely to the member who comes with a problem.
Get all the facts. Make sure you give the member enough time to
give you all the relevant information.
•Take notes. Ask questions.
•Use the CEP investigation form.
At times, a member takes it for granted that you know his or her
work well and forgets to tell you important details. To avoid this,
follow the five W's method.Who is involved?
Name of member or group of members. The employee's number, classification,
work station, etc.
What is involved?
Unpaid hours? A violation of seniority rights? Discrimination? Overtime?
When did it happen?
The required information includes the official date
of the grievance, the date of the incident that led to the grievance,
the date of the submission of the grievance and the employer's response.
Make note of all the important dates related to the incident.
Where did it happen?
Describe as clearly as possible the case history
and where it took place. Indicate the shop, the machine, the purpose,
the plant, etc.
Why did it happen?
The fundamental reason for the grievance. This question
is the key to the grievance, so it must be clearly expressed.
The investigation form
Whenever you collect information, use the required investigation
You can forget things.
When facts are laid out in black and white, it is
easier to determine the merits of the case.
When the grievance is completed, you have a file
that can be used as a precedent for similar grievances in the future.
The investigation report can be used by the negotiating
committee when the time comes to renew the collective agreement.
The difference between winning and losing a grievance
can depend on the thoroughness of the information you have collected.
When you write your report, remember that others will have to refer
The investigation report can always be used as proof
to the members of the work you and the union have done for them
Is the grievance well-founded?
It is best to have a thorough discussion with the member before
determining whether the Grievance is well founded. If in doubt,
consult other stewards as well as union leaders. They can help you
make a decision.
Do not proceed with grievances that are not well
founded. A member may believe he or she has a grievance because
of a misunderstanding of the collective agreement. Personality conflicts
or a misreading of the collective agreement are not legitimate grievances.
Agreeing to lodge this type of grievance may mislead
the member and undermine your credibility with the employer. If
you are sure that there isn't a valid grievance, tell the member,
explain why and show him or her the section of the collective agreement
that supports you argument. Be firm but be tactful in order to keep
the member's trust.
The wording of the grievance
Once you have determined that you are dealing with a legitimate
grievance, make sure to word it properly. Here are the steps to
Obtain the appropriate grievance form.
Include all the details required on the form.
Define the nature of the grievance, use the least
number of words possible and ask for the help of your chief steward
State clearly the expected outcome. If a financial
statement is involved, do not forget to claim interest.
Date the document and have the employee sign it.
Do not forget to sign it yourself.
Submit it to management within the required time
Should the member attend the grievance hearing?
Always take the member with you, except in special circumstances,
e.g. if a member threatens to physically attack the supervisor.
If you go to see management alone, the member may
believe that the grievance was not presented properly and could
end up blaming you unjustly. Together, you can present a better-prepared
and more detailed case. Before meeting with the employer, the member
should be warned that the steward will talk on his or her behalf.
The member should only respond to questions that are asked by the
Discourage members from presenting grievances on
their own. A member who is not familiar with the collective agreement
could he easily influenced and decide to drop the grievance or accept
a settlement that would weaken the collective agreement.
• To best analyze the facts, talk less and listen carefully.
Communication is a two way street.
• Let the employer make his own case.
• Do not let anyone side-track you. Stick
to the question in dispute.
• Avoid tit-for-tat bargaining on grievances.
• Avoid personality conflicts. Do not provoke
or ridicule the employer.
• Do not lose your temper. Create a climate
of mutual respect and avoid making threats.
• Do not get involved in discussions of personal
• Consult other stewards or union representatives.
• Keep the member informed about the outcome
of the grievance.
back to top
What a shop steward should know
Know your collective agreement
Read every word of your collective agreement and
consult it regularly.
Become familiar with all the provisions included
in the collective agreement. Consider they should be applied in
Discuss them with members of your local executive
and other stewards.
Discuss them during union meetings.
Know your workplace
Stewards must know their workplace and, as much
as possible, know every worker's responsibilities.
Make sure you know all the members of your group.
Learn all the salary scales.
Make sure you have a seniority list in your files.
Know your members
Everybody is different. In the case of a grievance,
for instance, some will readily give you all the relevant information
while others will not. Some will have a complete file, others won't.
Some will have personal problems. You will be in a position to help
your members more effectively if you know them well.
back to top
Shop steward's responsibilites
Keep your members informed.
Stewards have the opportunity to speak to members
every day, at mealtime, at break and during working hours. Take
advantage of these opportunities to inform members about the latest
union activities and to encourage participation. This will reinforce
Members expect you to know more about the union
than they do and they will listen to what you have to say. They
might not agree, but generally they will trust you. Make sure you
tell the truth and do not make up answers if you are asked something
you do not know.
Get to know newly hired workers.
Every new hourly employee becomes a member of the
union. Whether this new employee becomes an enthusiastic member
or an indifferent one may depend on you.
Introduce yourself and explain your work as a steward.
Tell them about the union. Offer your help if they have problems.
Explain all the gains that the union has made for its members since
they were first unionized.
Make sure new employees feel welcome. Put them at
case. Give them a copy of the collective agreement and offer to
answer any questions they may have. Give them CEP literature. This
will foster a sense of belonging.
Participation at meetings, events and union training
Unions are among the most democratic organizations
in the world. It is both a privilege and a duty for every member
to take part in the election of stewards, Union committee members
It's at union meetings that members learn how their
dues are used. Who their representatives are and what the union
When members do not bother attending meetings, they
weaken their union. It goes without saying that you must encourage
them to attend all meetings. Hold shop meetings and keep your members
up to date on the latest developments. Encourage them to make their
When a situation arises in the workplace that affects
many members, it is up to you to call a meeting.
You are the union in the minds of your members.
Make sure that every member receives newspapers and that the bulletin
board contains the latest information.
Urge your members to use the union's services.
Inform members of the social activities sponsored
by the union. Help the members experiencing problems outside work,
for example: disqualification from unemployment insurance, a need
for day-care or a problem with alcohol or drugs.
Refer them to union leaders trained to respond to
these needs or to CEP's specialized services.
back to top
Shop Steward Rights and Issues
As a steward, you have a lot of rights on the job
in representing members; rights that most bosses would prefer you
didn't know about. We've listed the most important ones, with links
to related articles.
A steward's job can mean confrontations with the
boss — confrontations that could get you fired in your role
as an employee. The Labour Law recognizes this fact and provides
three specific protections for stewards involving:
o Equal Standing
o No Reprisals
o Equal Treatment
Know Your Rights ...
Stewards have rights under the law and the union
contract. They provide real protection for members and stewards
...but you got to know them before your can use them!
Don’t let the boss con you! As a Steward,
you’ve been elected to represent your members — a job
that most bosses would like to keep you from doing. Here’s
a brief list of some of your rights and obligations.
You have the RIGHT to grieve about unfair treatment
— whether you saw it happen or someone calls it to your attention.
Bosses may accuse you of "soliciting grievances," but
don’t be fooled! It’s your duty to encourage workers
to grieve about legitimate issues — or file them yourself.
You have the RIGHT to carry out investigations of
grievances, including interviews of grievants and witnesses. Most
contracts provide for investigation on "company time."
For those that don’t, there is often a clear past practice
that allows this. But, if not, every grievance must be investigated
as thoroughly as necessary, even if it’s on your own time.
You have the RIGHT to organize and encourage your
fellow workers to take action in support of an issue or grievance,
so long as it doesn’t take place on work time and interfere
with production. The boss can’t stop you from getting people
to wear stickers, sign petitions, carry signs, or take similar actions
on break or lunch time. (Of course, stickers, buttons and caps can
be worn all the time, unless there’s a special reason for
a dress code.)
You have the RIGHT to request the information you
need to process a grievance from management. You should put these
requests in writing. Management is obligated to respond.
You have the RIGHT to be present in any meeting
between the boss and an employee if it might lead to discipline.
You have the RIGHT to be present every time a grievance
is being "adjusted" or settled. Even if a worker has taken
up the grievance on their own, the boss can’t bypass the union
You have the RIGHT to stand toe-to-toe with your
boss when you’re conducting union business. You can get loud,
angry, forceful, and speak your mind during grievance meetings.
This is the "Equality Principle" that says you and the
boss are equals in grievance discussions.
All of these rights are legally guaranteed, but
they depend on how well you use them. When you do, your members
will find their rights are protected, too.
As a Steward, you’re elected to protect the
rights of other members and defend the contract. Our style is militant
and aggressive. It’s the best defense against bosses who try
to undermine hard-won gains. To be effective, it’s important
to know the weapons and protections we have as stewards.
Most of us know our weapons: the contract, the grievance
procedure, the Labor Board, and, most important, shop floor unity
and organization. Less well-known, perhaps, are the protections
we have under the law.
(The rights described here are protected by the
Labour Relations Act (LRA). Public sector workers are protected
by similar state or federal laws.)
The Equality Rule
Probably the most important protection is called
"The Equality Rule." This rule acknowledges that your
job is likely to involve confrontations with management—confrontations
that could lead to discipline under the normal rules of employer-employee
You can openly disagree and argue vigorously with
management during grievance meetings; question management’s
authority; and, demand certain actions of management, all without
risking disciplinary action.
The "Equality Rule" makes you a "legal
equal" to the boss. But, it’s in effect only when you
are doing your job as a steward, not when you’re acting as
an individual employee. You’re acting officially when you
investigate and argue grievances, request information and otherwise
defend your members.
There are limits to what you can do, though. Threats
of violence and actual violence are prohibited, as are extreme profanity,
name calling, and personal attacks. Actions barred by your contract
are not protected, either. To prevent supervisors from claiming
you "exceeded the limit," it’s wise to have another
steward or member with you during meetings with management.
The boss is not allowed to use discipline, either
real or threatened, or any other form of intimidation to discourage
you from doing your job. For example, you can’t be denied
overtime opportunities, promotions, job transfers, bumping rights,
or any other entitlement as punishment for doing an aggressive job.
Nor can management assign you to the most undesirable jobs or more
closely supervise you than other workers.
Some supervisors try to hold stewards to higher
standards than others. "You, of all people, should know the
rules," is often a statement heard when some rule has been
broken. This is illegal, too. You’re not a "super-worker"
and you can’t be singled out for unusual discipline to "set
an example" or because you should "know better."
The only exception: not carrying out responsibilities required of
the union under the contract.
What to do
If the boss breaks these rules, there is most likely
a contract grievance—and, an Unfair Labour Practice charge
can be filed with the Labour Board.
As in the case of most other grievances, a workplace
strategy for solving the problem is often much more effective than
dealing with the LRB—especially because the Board is often
frustratingly slow to respond. But, if you feel that a unfair labour
practise charge should be filed, talk with your Regional Representative
and local officers about the best way to proceed.
back to top
( A Practical How-To Guide )
A member - or members come to you. They’re
mad. Really mad. "It’s unfair...it’s a violation
of the contract...it’s illegal...and it’s not right!"
You think to yourself, "yeah, this is terrible. I’d better
do something." But what do you do next?
If your answer is "demand an explanation from
management," you may want to think again. Sure, some problems
are obvious grievances, but most of the time you’ll need to
know a lot more about what’s going on. Jumping to conclusions
based on false, faulty, or inadequate information will only undermine
your credibility, and the union’s.
Know the issues thoroughly. . . It's the only way
to handle grievances well.
Remember, a member who’s upset, angry, and
frustrated may not always give you an accurate picture of what happened.
A disgruntled member may sometimes exaggerate and leave out important
details. It’s up to you to investigate, look at the facts,
and then decide on a strategy for dealing with the problem.
The first step in your investigation is to conduct
Get the information you need from an upset member
after they’ve calmed down, either by taking them aside and
talking for awhile, or by meeting with them later.
Here are some time-tested tips for getting the most
Make sure you’re relaxed — and take
your time. Listening is the key, so control your feelings and concentrate
on hearing what the member says. Write down important facts, including
who, what, when, where, how, why, and the names of any witnesses.
Encourage the member to "get it all out"
(both facts and feelings).
Ask questions that can’t be answered yes-or-no
when you don’t understand something or when you need to clear
something up, such as: "Why do you think this happened?"
Or, "Give me an example."
Once in awhile, repeat back to the worker what you’ve
heard them say. This checks your accuracy and often brings out overlooked
Avoid making judgments during the interview. Form
your opinion later, after you’ve gathered the facts.
Avoid making promises about the actions you will
take. Assure the worker that you will investigate and let them know
when you’ll get back to them. Make sure you do!
If you don’t know the answer to a question,
Promise the member you’ll find out and get
back to them (and do it!).
A Full Investigation
Interview everyone connected to the problem in the
same manner. Talk to other workers, any witnesses, other stewards,
even foremen and supervisors. Never depend on a single version of
what happened, if you can avoid it. And remember, interviews are
one way of getting at the facts, but they’re not the only
Check documents and records that could help you
decide what happened and what should be done. They include:
o Past grievances, steward’s notes, and arbitration
o The contract and supplemental agreements;
o Employer policies and work rules, and,
o Information that you may need from the boss.
When you’ve gathered all the facts, then it’s
time to put your case together (if there is one), and determine
what strategy (big plan) and tactics (smaller moves) that can be
used to solve it.
Other Sources for getting Information
Having good and complete information is vital in
fighting grievances. But where and how do we get it?
First we should look to ourselves. An informed steward
not only knows the contract, but the past practices of the department.
A wealth of knowledge exists among the members as well. And of course
the local union should keep records. But sometimes that still isn’t
enough to be properly prepared.
Help can come from an unexpected source—the
employer! It’s not because they want to provide information.
The union is entitled to it under the Labour Relations Act (LRA).
The steward may request information
Before a grievance is filed to see if the contract
may have been violated.
At or between any step of the grievance procedure.
After the final step to prepare for or consider
a possible arbitration case.
It’s best to be specific about what we want
and, unless the information is immediately available, to put the
request in writing.
Remember, the information must bear some relevance
to the actual or potential grievance. The union is not allowed to
use requests merely to conduct a "fishing expedition"
through company records. Nevertheless all sorts of company documents
data and factual information are fair game. There have even been
cases where the boss has "thrown in the towel" on a grievance
rather than go to the trouble of digging up the information requested.
Some Examples of Information the Union May Request:
Health and safety studies
Job assignment records
Job descriptions Material safety data sheets
Names of witnesses
"Notes to file"
i.e. database source
Reports and studies
Security Guard records
Time study records
back to top
Just cause for discipline?
Our main contractual weapon in discipline and discharge
cases is usually the requirement that boss must have "just
cause" (or "fair cause" or "proper cause")
to take action against an employee. Even if these words are missing
from the contract, many arbitrators use this standard, anyway.
But, what is "just cause"? Simply put:
it means the employer must have a reason (he or she must have "cause")
for imposing discipline and the reason must be fair ("just").
It is commonly accepted that there are seven tests
as to whether the boss has used "just cause" in handing
Using the Seven Tests
Here are the "Seven Tests" as to whether
the boss has used "just cause" in discipline and discharge
One of the main reason workers join unions is to
gain protection against unfair and unjust discipline that employers
hand out. Stewards must be ready to handle all sorts of discipline
cases, from warnings to suspensions to firings. Stewards must be
ready to deal with situations of gross discrimination by the boss
on who gets disciplined to dealing with union members who sometimes
seem to go out of their way to get themselves fired.
Our main contractual weapon is often times summed
up in one short sentence, "Employees shall be disciplined or
discharged only for just cause". In some contracts the words
used are "proper cause" or "fair cause". The
importance of a sentence like this is that it binds the employer
to imposing discipline not just for any reason (cause) but the reason
has to be a "just" reason. Many arbitrators have gone
so far as to hold all employers to a "just cause" standard,
whether the contract uses the words or not.
What is a "just cause" standard? It is
commonly accepted that there are seven tests as to whether a boss
has used "just cause" in handing out discipline. The Bureau
of National Affairs lists them as follows:
The Seven Tests
Was the employee adequately warned of the consequences
of his conduct?
The warning may be given orally or in printed form.
An exception may be made for certain conduct, such as insubordination,
coming to work drunk, drinking on the job, or stealing employer
property, that is so serious that the employee is expected to know
it will be punishable.
Example: If an employee is told to stop using vulgar
language and told that if he continues he will be disciplined, that
maybe adequate warning. However if a boss comes up to an employee
and says "I'm tired of your swearing, cut it out", and
then the next day fires the employee for swearing again, that may
not be adequate warning.
Was the employer's rule or order reasonably related
to efficient and safe operations?
Example: A boss makes a rule that all employees
must wear red tee shirts and they must be tucked in so they don't
get caught in machinery. An employee is fired for wearing a blue
tee shirt that was tucked in. Making a rule that tee shirts must
be tucked in so they won't get caught in machinery may be reasonable
and related to safety, but demanding the tee shirt be blue isn't
related to safety or efficiency.
Did management investigate before administering
The investigation normally should be made before
the decision to discipline is made. Where immediate action is required,
however, the best course is to suspend the employee pending investigation
with the understanding that he will be restored to his job and paid
for time lost if he is found not guilty.
Example: The boss fires a worker for stealing and
then demands evidence from the union that the worker isn't guilty.
At the grievance meeting the boss admits he never investigated the
incident, just took another employee's word. This probably wouldn't
hold up. If the union has facts to prove the employee's innocence
they should be presented to the boss, even though he failed to properly
investigate the case.
Was the investigation fair and objective?
Example: If an incident happened does the employer
interview everyone present or only management people who were present.
If the employer refuses to interview non-management workers then
the investigation may not be fair.
Did the investigation produce substantial evidence
or proof of guilt?
It is not required that the evidence be preponderant,
conclusive, or "beyond reasonable doubt," except where
the alleged misconduct is of such a criminal or reprehensible nature
as to stigmatize the employee and seriously impair his chances for
Example: Here it is obvious that workers have less
rights inside the workplace than they would have in civil court,
but still the boss must have real evidence, not guesses. Again the
boss cannot just try to make a worker prove his or her innocence,
without presenting proof of guilt.
Were the rules, orders, and penalties applied evenhandedly
and without discrimination?
If enforcement has been lax in the past, management
cannot suddenly reverse its course and begin to crack down without
first warning employees of its intent.
Example: This is the most common form of discrimination.
An employer decides to suspend Mary for taking too long at lunch,
but lets the employees who eat lunch with a supervisor take extra
time every day. This would not hold up. However, if the employer
tells everyone that starting on Monday employees will be disciplined
for taking too long at lunch and on Tuesday Mary comes back late
and everyone else has been on time, she may be disciplined.
Was the penalty reasonably related to the seriousness
of the offense and the past record?
If employee A's past record is significantly better
than that of employee B, the employer properly may give employee
A lighter punishment than employee B for the same offense.
Example: The classic example is two employees get
in an argument and shove each other. One has 25 years service with
a clean record. The other has 3 years service with lots of warnings
and discipline. Based upon the workers seniority and records, the
employer may give the older worker less punishment than the other
Tips for Handling Discipline & Discharge Cases
Here are some basic tips for stewards handling discipline
and discharge cases:
• Use the " seven tests "
as an outline. Did the employer meet the seven tests? Remember that
just because an employer messes up on one of the seven tests, this
doesn't mean we automatically win, but proving they screwed up helps
• Try to stop the employer from suspending
or firing a worker. Try to get a cooling off period if necessary.
The case becomes harder once a worker is out the door, now we not
only have to fight about what happened but over back pay, etc.
• Ask for all the employers notes and records
they used to make a decision. Get any notes or records a foreman
or supervisor might keep, even informal records. The union has a
right to them. On the other hand the employer has no right to the
notes or records that the union makes when investigating a case.
• Do a thorough investigation of the case.
DON'T take the employers word on anything. (See: Investigating Grievances).
• In a grievance meeting make the employer
prove their case first. Make them present all the facts and don't
assume anything. Don't let the boss start the meeting by saying
to the union, " OK tell me why I shouldn't fire Joe".
Make the boss justify firing Joe.
• There are two parts to every discipline
case. Did the employee violate a known rule and what should the
punishment be? Sometimes we lose the first part but then we have
to make sure the punishment fits the offense.
• If the employer refuses to back down from
a written warning, and the case doesn't merit arbitration make sure
the employer receives from the union a written statement disputing
the facts and the discipline. Have this letter also put into the
employees personnel file.
back to top
Past Practice Grievance
Winning Past Practice Grievances
The Types of Past Practices
Tips on Filing Grievances About Past Practices
One of the most powerful tools at a steward's disposal
in defending members' rights and working conditions at work is the
concept of past practice.
It's important for each steward to be familiar with
the practices of the workplace ... and how to use the grievance
system to defend them.
Winning Past Practice Grievances
Understanding and Defending Past Practices at Work
One of the powerful tools that each steward has
in their Steward's Toolkit is the use and understanding of past
practices. Stewards need to know what constitutes a valid past practice
and what are the past practices in their workplace. It is important
that all stewards are aware of the past practices so they can defend
them from erosion by management.
Definition of a past practice
A past practice is any long-standing, frequent practice
that is accepted and known about by the union and management. A
practice that meets the standards of being a bone fide past practice
is considered to be part of the contract. Since it is part of the
contract, grievances can be filed if management violates a past
practice. In most cases management cannot end a past practice without
first bargaining with the union. In some cases management must wait
until contract negotiations to change a past practice.
Be sure to check your contract for any language
that may limit the use of past practices for grievances.
The test for a valid past practice is as follows:
o It must exist for a reasonably long time.
The longer a practice has been in effect the more
weight it carries. We are talking about years, not weeks or months.
Many arbitrators think that a practice must be 3-5 years and "cross
over contracts," that is, it must have been in practice during
the life of at least 2 contracts.
o It must occur repeatedly
To be valid, a practice has to occur many times,
the more times the better. It should also occur consistently. A
practice that happened 5 times, four years ago and hasn't happened
again, is not a very strong past practice. An exception to this
might be a practice that occurs around a specific holiday. If every
year for 7 years the management allows workers to go home without
penalizing them after working only half the day on the day before
Christmas, this could be a valid past practice.
o It must be clear and consistent
Whatever the past practice is, there must be a clear
and consistent pattern of it being repeated in the same way each
time. If there are minor deviations, then there must be at least
a predominate pattern of consistency.
Example: Management has always let workers accept
personal phone calls. The union can document over 100 times in the
last 5 years. Management says they can prove that on 3 occasions
workers were refused the right to accept a personal phone call.
In this case the clear and overwhelming pattern is in favor of the
union. Three refusals over five years doesn't break up the clear
and consistent pattern.
o It must be known to both management and the union
While a past practice does not have to be "negotiated,"
it must be something that both parties know about. On the management
side it sometimes is not good enough for a low-level foreman to
know, it must be higher management.
Example: For years workers have been leaving the
work place early on Fridays and the foreman knows it. According
to the "absentee program" workers should receive one point
for leaving early, but the foreman never gives points for Friday.
Upper management finds out and decides to give everybody warnings
for leaving work early. The union could argue that nobody should
get a warning because management did not inform the union that they
wanted to change the practice of no discipline for leaving work
early on Friday. However since upper management did not know about
this practice it would be hard to argue that workers could continue
to leave work early every Friday, without discipline.
o It must be accepted by both management and the
The practice not only has to be known by both parties,
it must be accepted by both parties. Often times the fact that a
practice occurs frequently over a long period of time indicates
that the parties agree to it. A practice that is openly agreed to
by both parties, gains past practice status quicker than one that
is not openly accepted. When management acknowledges a past practice
as part of a grievance answer, its "legal" status is much
Example: For many years workers have been allowed
to line up at the time clock after the first bell rings, signifying
there are five minutes left until quitting time. A new boss says
that no one can line up until the quitting bell rings. The union
has a strong case of past practice. Management cannot claim they
didn't know workers were lining up after the first bell. In this
case since management never did anything to stop this practice,
this indicates acceptance of the practice.
The Types of Past Practices
There are three categories of past practice. The
"contract clarifying past practice" is the strongest type
and the "contract conflicting past practice" presents
the weakest legal argument.
Contract clarifying past practice: These practices
come into being when there is contract language that is vague or
general. The practice defines the general language.
Example: The contract language reads, "The
company will allow union stewards reasonable time off from work
to attend union meetings." The general phrase is "reasonable."
For many years the company has allowed stewards to attend monthly
union meetings and three times a year the District council meeting.
Every year one steward and the officers get time off to attend the
National Union convention. This past practice now clarifies what
the contract means by "reasonable."
This is the strongest type of past practice because
it is backing-up negotiated language. In most cases an employer
must bargain to change the past practice, and they cannot change
it if the union doesn't agree.
Independent past practice: This is a practice that
is not addressed by any contract language. Most often these are
"benefits" that workers take for granted and so were not
included in the contract.
Example: There have always been vending machines
in the cafeteria. Management cannot just decide to remove them.
Parking has always been free in the company parking lot. Management
cannot just decide to begin charging employees.
Independent past practices can be terminated by
management for the following reasons:
o If they can prove that there has been a significant
change in the original conditions that started the practice;
o If they can prove significant ongoing employee
abuse of the practice;
o Finally, if they notify the union during contract
negotiations that they will end the practice during the next contract.
Even under the "change in conditions"
and "abuse" situations the employer must bargain with
the union before ending the practice.
Most arbitrators will not extend these past practice
rights to "work methods."
Example: Management wants workers to run 3 machines
instead of two, claiming new technology makes them easier to run.
The union probably cannot claim it is a past practice that workers
only run two machines. However in most cases the union can demand
that management bargain over a change in working conditions.
Contract conflicting past practice: In this case
the practice clearly conflicts with the contract language. These
are the hardest to prove, with most arbitrators coming out on the
side of saying the contract should prevail. With a contract conflicting
past practice an arbitrator may look at practices that have existed
for very long times, happen very frequently, very clearly conflict
with the contract and were very clearly known to both parties. In
these cases the arbitrator may rule in favor of the practice.
Example: The employer has never given Union Representatives
"points" under the absentee system for attending union
conventions, even though there are no provisions for this exclusion
in the absentee system which is part of the contract. This has been
going on for ten years. The union notifies management each year
as to who will be attending the convention. In this case although
the practice conflicts with the contract it probably would be considered
a valid past practice.
The employer must notify the union of its intent
to end the past practice and must bargain with the union, if the
union requests to bargain. After bargaining the employer may end
the past practice.
Tips for Filing Grievances About Past Practices
Know which kind of past practice it is. Remember,
the strongest case can be made for a "contract clarifying past
Gather plenty of evidence of how long, how frequent,
and how the employer knew about the past practice. The more the
better. Bury the employer with evidence.
In writing a grievance, cite which part of the contract
the practice is clarifying and, as always, cite the entire contract.
Finally, as always, don't depend on any arbitrator
or LRB to save the day. Everything cited above are "guidelines"
that most arbitrators follow BUT are under no obligation to do so.
Rely on the membership to win past practice grievances, just like
all grievances. (See: The Case Against Arbitration)
back to top
Arbitration - yes or no?
The Case For or Against Arbitration
Organization, not arbitration, is often the best
way to resolve grievances. Why? Arbitration can:
o undermine organization
o be dangerous in ways you never expected
o be very expensive
Arbitration is often a gamble, too — with
the outcome having little to do with the merits of the case.
The Case Against Arbitration
The best place to settle grievances is right where
they began ... on the job. Relying on arbitration can undermine
your local union's strength and be unexpectedly disastrous.
Arbitrate? Sometimes we’re forced to. But
taking grievances to arbitration can be expensive and dangerous.
Why? Because, at best, arbitration is a third party process that
does little or nothing to build union strength and, at worst, can
set a bad precedent that will haunt workers in many places for many
Given our belief in rank-and-file unity, eagerness
to arbitrate grievances can be a danger signal that a local’s
organizational strength is suffering. The best place to settle a
grievance has always been right where it began—on the job.
The boss should know that all grievances will be backed by a unified
and, if necessary, angry membership.
If very few grievances are settled on the job or
in the early stages of the grievance procedure, then it may be time
to take a good look at your local’s ability to send a unified
message to the boss. Instead of building unity, arbitration can
actually undermine organizational strength.
Think about it. Arbitration removes an issue from
the workplace and it takes time. Instead of reinforcing the idea
that "we—all of us—are the union," the attitude
is developed that the union is some type of insurance agency: ‘file
a claim and see what happens.’
An ill-considered decision to arbitrate can also
turn into a disaster. With the stroke of a pen, an arbitrator can
undo hard-won contract language—and, as many trade unionists
have found out—what we lose in arbitration we rarely recover
Arbitrators have considerable freedom to frame their
decisions and the outcome may be completely unexpected or irrational.
In one case, an arbitrator ruled the company was wrong—but
he had developed such a dislike for the grievant that he refused
to provide a remedy.
Fighting mandatory overtime through arbitration,
a local in another union was shocked when the arbitrator decided
the company and the union wouldn’t have negotiated overtime
pay provisions if "reasonable" mandatory overtime wasn’t
expected.’ The decision was bad enough but it set a precedent
that has been used repeatedly in other cases involving similar contract
Arbitrate until you drop
Finally, arbitration is expensive and there are
plenty of bosses who would love to bankrupt a local union by pushing
every grievance to arbitration. The best rule of thumb: always try
to win organizationally; consider arbitration only if there’s
no other course. And, always consider what will happen if the case
Remember, the arbitrator’s decision may be
binding until your contract language is changed. The common experience:
union’s seem to run about a 50-50 chance of winning discharge
and discipline cases, but a much lower percentage of cases involving
contract language. Arbitrators seem much more likely to defer to
the "management rights clause"
than support the union’s interpretation of the contract.
If you have to . . .
We know it’s sometimes necessary to arbitrate.
Pick your cases carefully and make sure they’re strong. Be
very careful where contract language is concerned. And, try to take
the long view: is it likely that a particular principle can be won
through a stronger case in the future? Or, should the issue be saved
for the bargaining table?
back to top
Most bosses, of course, want to limit the ability
of members to bring up workplace issues ... and will often insist
that an issue can't be dealt with "because it's not in the
But, the recognition clause in every union contract
gives workers the right to bargain collectively over any issues
involving wages, hours and conditions of employment.
This isn't an opinion, it's the law. Yes, there
are some limitations, but far fewer than the boss would have you
Rights: Theirs & Ours
Management may say the union can't file a grievance
because "it's not covered in the contract." But your contract's
recognition clause says the boss must deal with the union on issues
involving wages, hours and conditions of employment.
How many times has this happened: a problem arises
at the workplace and the contract is "silent" on the issue
at hand. Management claims that since the contract doesn’t
cover the issue, the union has no basis for a grievance; that "management
rights" allows them to do most anything they want. Often times
we are faced with a grievance and have trouble finding a specific
remedy in the contract. This is where the recognition clause comes
Most often the recognition clause is at the beginning
of the contract and reads something like this: The employer recognizes
the Union as the sole and exclusive bargaining agent, for the purpose
of establishing wages, hours and conditions of employment.
Where Do Union Rights Come From?
The reason this kind of language is so common is
that the recognition clause is just repeating what's in the Labor
Relations Act : For the purposes of the Act, to bargain collectively
is the performance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours and other
terms and conditions of employment.
Processing Grievances is A Form of Bargaining!
So under most of our contracts and under the law,
the employer must bargain with the union — and processing
grievances is a form of bargaining — when unresolved issues
regarding wages, hours and conditions of employment arise.
Here’s an example: Employees have always been
allowed to have radios in their work area. A new foreman orders
all radios taken out of the work area. He claims they distract employees
from doing more work. He also claims that under the management
rights clause he has the right manage the work place, and this
gives him the right to make changes.
This is a perfect example. The right to listen to
radios isn’t in the contract, but the steward files a grievance
under the recognition clause. Removing radios would be changing
employees’ conditions of employment and therefore the foreman
must bargain with the union before making any change.
Although the management rights clause says the employer
has the right to run the work place, this is a general right and
does not mean they can change any working conditions any time they
want to. Management rights clauses that list specific items like,
"management has the right to set starting times" means
the union can’t complain about management setting starting
times, unless some other part of the contract addresses the same
Restrictions on Our Right To Bargain and Grieve
There are some restrictions on making employers
bargain over conditions of employment. Although there is no basis
in the law itself or in the LRB, the Courts have put some restrictions
on our rights. As may be expected, the restrictions favour the bosses.
The Court decided there should be mandatory subjects of bargaining
and voluntary subjects for bargaining.
Never take the bosses word that they don’t
have to bargain over an issue. Check with the Union first. Because
even if the union has "waived" its right to bargain or
grieve an issue, the Company may be obligated to bargain over the
effect of the change.
The voluntary list is fairly small but covers some
important topics. For example it is voluntary for an employer to
bargain over the decision to close plants or eliminate part of the
business. They must, however, bargain over the "effects on
employees" of such decisions. This is where we bargain over
severance pay, etc. A decision to close a plant that is based solely
on wanting to pay lower wages may move this issue into the "mandatory"
bargaining category. Other "voluntary" items are picking
supervisors, pre-employment tests, advertising, management salaries,
It's Our Duty
As most stewards soon realize there will be many
fights over what the recognition and management rights clauses means.
We must always try to use the recognition clause to demand the greatest
rights for the workers and the union, "to push the envelope".
We must always try to make management bargain over
any proposed change, no matter what the management rights clause
says. We won’t win every one, but by sticking to our rights
and having an active membership behind us, we can "train"
management to bargain over most working conditions.
Issues the Boss Must Discuss
Here is a list of some issues that management must
talk to the Union about unless the union has specifically waived
its right to bargain or grieve them (by coming to agreement on the
- absence rules , automation decisions
, clean-up rules , disciplinary procedures
- dress codes , drug/alcohol testing , elimination
- employee privileges (such as right to listen
to radios, receive telephone calls, smoke etc.)
- employee purchase plan , evaluation
systems , food service hours, free coffee
- grooming standards , "light
duty" policies , new positions , parking
rules , pay check procedures
- production quotas , safety
awards , smoking rules , subcontracting
decisions , tardiness rules
- union steward and officer privileges (such as
paid leaves, access to facilities, time off etc.)
- vacation policies , workloads
, work rules
back to top
Smile . . . You're On Corporate Camera!More
and more employers are using some form of electronic surveillance
in the workplace. In a union workplace, workers
have a better chance of fighting this invasion of privacy.Stewards
should know new forms of surveillance may well be grievable . . .
and hidden cameras may be subject to mandatory bargaining. Non-union
workers are basically out of luck in looking for legal protections.
and more workers are being monitored on the job through some form
of electronic surveillance.
Workers at a factory one day noticed a crew of outside
electricians doing a lot of work in the plant. They were installing
an extraordinary amount of new electric exit signs and refurbishing
old ones. At first no one thought anything about it, but then someone
noticed that instead of regular electric cable running into the
signs there was 3/4 inch coaxial cables. The second shift conducted
an examination of the new signs and to their surprise they found
that each exit sign not only had lights inside them but also had
miniature video cameras that were set to watch the workers!
At another workplace the office and clerical workers
were notified by management that they were not to conduct personal
business on company time. Most workers treated this as just as another
one of those stupid notices that bosses post from time to time.
A few weeks later several workers were called into the office and
given written warnings for conducting personal business on company
time. The bosses evidence was E-mail letters that had been taken
from the workers personal inter-office E-mail accounts! Since the
letters were of a personal nature and didn’t have anything
to do work the boss accused the workers of "stealing time."
A growing trend
This is all part of a growing trend of employers
spying on workers. While most bosses say this is just part of an
effort to stop "theft" or to prevent "drug usage,"
it is in most cases just another way to put pressure on workers
to produce more, it is part of speed-up.
In 1990 according to one survey about 8 million
workers were subject to some form of electronic surveillance by
their employers. In 1996 the number had risen to 20 million workers,
and this is just based upon the employers who admit to spying on
their workers. In a 1993 survey of large corporations 22 percent
admitted they spied on their workers with some form of electronic
surveillance and never told the workers they were being monitored.
Is Spying Grievable?
The basic answer is yes. The basic union approach
must be that any time the employer wants to make a change in our
working conditions (and using surveillance on workers can not be
considered a "minor change") then we can grieve the changes
and demand the employer bargain over them. The section of the contract
to quote is usually the Recognition Clause.
If we ever suspect that the boss is using surveillance
cameras, or reading E-mail, confront them with the accusation. If
they admit doing it, immediately file a grievance. Have everybody
sign it to let the boss know they don’t like being spied on.
Remember, this is a two step process. First, the
grievance is filed over a change in working condition being made
without bargaining with the union. The remedy must be stated, usually
it will be that the employer stop the surveillance immediately.
Second, a separate letter is given to the employer demanding they
enter into negotiations with the union over their intent to spy
on the members.
Is There Legal Protection?
As in most cases concerning the rights of workers,
the laws are not so good or don’t exist. We have to depend
on our strength as a union to back up the grievance procedure. When
the boss is caught spying on us it is easy to make up stickers and
buttons with catchy slogans.
back to top
Breaking in a New Boss
You've got a new boss, bosses, or maybe an entirely
new management team. He, she or they want to make the point that
"things will be different." How different will they be?
Here are some issues to consider involving both the legal aspects
of what can – or can't – be changed, the reality of
your workplace and what it will take to make sure respect for the
members is preserved (or reestablished) ...
Breaking in a New Boss
The new boss will often try to "make an impression."
Here are some thoughts on how to make sure a new boss learns how
to act like a civilized human being.
Here’s a situation that can happen to any
union local, sometimes more than once...
Corporate management appoints a new management team,
or local management hires a new personnel manager, or the operation
is sold to a new owner. In the public sector a new person is elected,
or a department is privatized. Management announces that from now
on things are going to be different, rules will be enforced, discipline
will be handed out. New company policies or work rules are posted
or handed out.
A steward files a grievance, management rejects
it because it wasn’t written properly, or a deadline was missed.
The union committee cites past practice, management states they
are new, and that only past practices that benefit the company will
be recognized. Union members are mad and demand that the union take
action. Even lower level management is complaining and tells the
union that they better do something about the boss.
What causes this to happen? Often it’s a new
young boss trying to make an impression. Since many workplaces are
non-union, odds are this person has never dealt with a union before.
They don’t understand how a unionized location operates. It’s
up to the union to not only defend working conditions, but also
"break in" new management. They may need to be taught
how to act like civilized human beings. Respect for the members
must be reestablished.
As with most situations, there are two aspects to
consider, the legal issues and dealing with reality. How much can
the union afford to let management get away with? When has management
crossed the line, forcing union leaders to take a stand?
The union’s best weapon is it’s members.
The members control production quantity (a lot or a little) and
quality (good or bad). They control the delivery of services. Services
can be provided fast or slow, a lot of "red tape" can
be involved. Often what’s needed is a method to remind the
employer of the member’s power. It could take one or several
reminders. Management can be slow learners, but eventually the message
will get through and respect for the workers will be reestablished.
Ideas for Action
• Discuss the situation with the members immediately.
Hold meetings, either formal or informal (at lunch, in the parking
lot, in a nearby restaurant).
• Make sure a substantial majority of the
members are on board and that they understand the problem. New management
can be the best activator and organizer of union members.
• Call a stewards meeting right away. Get
the stewards on board. Hold a mini stewards class, if necessary.
Make sure the stewards know their legal and contractual rights.
Be sure they know the proper way to write and present a grievance.
Make sure they understand the importance of meeting the contract
• Don’t skip steps in the grievance
procedure, even if the supervisors claim they can’t do anything
to resolve the grievance. If union members are going to be made
miserable by the new management’s tactics, lower level bosses
need to be made just as miserable. Pressure must be put on them
to help whip the new managers into line.
• Work on management at every level. Try to
determine if this attack is the policy of the employer, or the action
of a new boss out to make an impression. We have more leverage if
the problem is with the individual. If that’s the case, other
levels of management may not be interested in going to war with
the union. Try to use any division in management to the union's
advantage. Remember, management will generally not publicly denounce
one of their own, but if we can pit them against each other the
union will gain bargaining leverage.
• Don’t expect to win this fight overnight.
It will take time. Make sure the members and stewards know and understand
this. Don’t allow management to single out union officers
or stewards for punishment. Advise people not to lose their temper
or do something stupid. That could be playing into management’s
hand. They may be looking for a union official to fire to scare
• File a lot of grievances — they may
have to be withdrawn later, but let the employer know that people
aren’t happy. Let management know you are willing to spend
as much time as it takes sitting in grievance meetings. When possible,
present group grievances. (Either file a lot of separate grievances,
or have everybody sign one grievance). Have as many members as possible
come to the grievance meeting to testify.
• Work to rule when you can. Take time filling
out paper work and always work in an extremely safe manner. Everyone
should ask their immediate supervisor a lot of job related questions.
Remember, being a model employee takes time.
• At some point the union may need to take
the fight outside the immediate workplace. Petitions may need to
be sent to corporate headquarters. Practice picket lines can be
held (off hours), or call a press conference to inform the public
if we provide services to them.
• Figure out what the best resolution to this
problem is. It’s rare that the employer will fire a boss because
the union demands it. Most likely, someone different will handle
the grievance procedure for a while, or the situation may improve
over time. Leave management room to save face.
back to top
Stopping Sexual Harassment
A steward's job is to protect the rights and working
conditions of all the people in our workplaces.
As a union, our job is to protect the rights and
working conditions of the people in our workplaces. Sexual harassment
is illegal and a violation of the contract as well — and it's
our job to respond when we see it happening.
Stopping Sexual Harassment
Sexual harassment is a violation of most union contracts
and is illegal.
Sexual harassment is one of the leading forms of
discrimination that women workers face. One survey of women workers
showed that 56% had faced some sort of sexual harassment at work
during their lives. Sexual harassment and discrimination are illegal
under most union contracts and it is illegal. In guidelines defining
sexual harassment. It is defined as:
(1) unwelcome sexual advances; or (2) requests for
sexual favors; or (3) any other verbal or physical conduct of a
sexual nature. Sexual harassment can occur through looks, touches,
jokes, innuendoes, gestures, or direct propositions.
Such conduct constitutes sexual harassment when
(a) submission is made a term or condition of employment; or (b)
submission is used as a basis for employment decisions; or most
broadly (c) the conduct has the purpose or effect of unreasonably
interfering with an individual’s work performance, or creating
an intimidating, hostile, or offensive work environment.
Under the law, men as well as women can be victims
of sexual harassment, but in reality it is women who are affected
98% of the time.
So, in short, sexual harassment is any unwelcome
sexual advance or a hostile work atmosphere based upon sex. The
key to all this is, if a woman says "no" or "stop
it", then actions that occur after that probably are sexual
harassment. The "no" does not have to verbal either. If
a boss keeps demanding that a woman worker go out with him, and
she walks away from him each time he does it, then that should be
taken for "no". For him to keep bothering her is sexual
What Makes the Boss Guilty?
The employer is liable for the actions of its employees
involving sexual harassment under certain conditions. These include
1) The sexual conduct was unsolicited and unwelcome.
People can still talk about sex or make jokes with each other as
long as both parties don’t mind it and they keep it to themselves.
A hostile work environment can be created by the language or actions
of two consenting people if other workers find the language or behavior
2) For "hostile working conditions," the
conduct must be severe or continuous.
3) The employer or someone in authority must know
that a worker is being harassed. If the employer fails to take action
to stop sexual harassment then their penalties can be greater. The
"higher" up the boss is who is doing the harassment then
the greater is the company responsibility.
What About Workers Harassing Other Workers?
As a rank and file union we must make it clear that
we want to make working conditions better for all workers, and therefore
we cannot tolerate one worker or a group of workers making life
miserable for other workers. This is not union behavior.
The union’s obligation is to make sure that
everyone is treated fairly and gets a fair hearing. If the union
determines in good faith that a member was wrong and was harassing
another member, then the union has no obligation to defend the harasser.
Our policy is that workers get education on why
their behavior is wrong. Many time this is enough to stop them bothering
another worker. If we can handle this inside the union, that is
the best approach, but if a worker after being "educated"
continues to be abusive then we must take steps to protect the member
who is being harassed. Our mission is to "unite all workers
on an industrial basis, and rank and file control, regardless of
craft, age, sex, nationality, race, creed or political beliefs and
pursue at all times a policy of aggressive struggle to improve our
Some Legal Terms
Quid Pro Quo is Latin for "this for that".
This simply means demanding something from a woman in return for
giving her something. "If you go out with me I’ll make
sure you get overtime" is something a boss may say to a woman
Hostile environment is any unwelcome sexual conduct
that "unreasonably interferes with an individuals job performance
or creates an intimidating, hostile or offensive working environment".
This type of harassment also includes cases where a boss harasses
woman because he doesn’t want them working on certain jobs,
or he allows men to harass the women to get them "off of the
Every instance of sexual harassment will be unique
- but we've got some suggestions for developing thoughtful responses.
Every instance of sexual harassment will be unique
and creating appropriate responses will require the Steward to be
thoughtful, sensitive, and resourceful. Below are a few suggestion
that should be kept in mind when dealing with sexual harassment.
1) The Union should make all members aware that
sexual harassment is illegal and that the union will fight on behalf
of its members to stop it.
2) Make the employer post notices that sexual harassment
3) Many women are not sure who to turn to when they
are being harassed. The union can appoint several stewards (some
of whom should be women) who are well known and respected by the
members to be a special committee to deal with sexual harassment.
Make this committee known to all workers.
4) If the harasser is a boss (or an unrepentant
union member), have everyone — men too — in the department
wear stickers or buttons with messages like the one at the top of
5) When dealing with the issue in grievance meetings,
make sure the victim isn’t harassed again by the company by
being made to recount what happened in front of many bosses. Make
the company show some sensitivity.
6) Make the harasser pay for the crime, not the
victim. Too often, the boss’s solution is to move the victim
off of her job to "keep her away from Joe". Make the employer
fire or move the boss who was the harasser, not the worker.
7) Put the employer on notice that illegal behavior
is going on. Be the buffer between the victim and the employer.
Don’t let a boss harass a worker into withdrawing their complaint.
8) In cases where a union member is the harasser,
try to make them stop before going to the boss (see #4). Get the
union committee involved if the worker doesn’t understand
what they are doing is wrong
Back To Top End
Web site contents © Copyright CEP603, All rights reserved.