ARTICLE 4 GRIEVANCE PROCEDURE
The purpose of this procedure is to resolve grievances and to assure prompt and equitable solutions of problems arising from the administration of the Agreement, or other conditions of employment by providing the exclusive vehicle set forth in this article for the settlement of grievances. An employee is entitled to use this grievance procedure and to be represented by the Union upon his or her request in accordance with the provisions of this Article. An employee shall not be coerced, intimidated or suffer any reprisal as a direct or indirect result of such use.
1. A “Grievance” is:
a. A claimed breach, misinterpretation or improper application of the terms of this Agreement; or
b. A claimed violation, misinterpretation or misapplication of rules or regulations, existing policies, orders, letters of memoranda or agreement, administrative decisions, or laws, applicable to the agency or department which employs the grievant which establish terms and conditions of employment and which are not included in (a) above.
2. Union Stewards and Representatives:
a. A “steward” is an employee of the State serving as the designated union representative in the grievance district pursuant to Article 25 Section D.1.
b. An “executive board member” is an employee of the State, who sits on the executive board of a local Union. An executive board member will have all the privileges of a steward and may represent any employee, regardless of the employee’s negotiations unit. Time off for an executive board member is governed by Section D.1 of this article. The Union and the State will mutually designate the grievance district(s) within the jurisdiction of an executive board member.
c. A “union staff representative” is a person in the active employ of the Union and not the State.
d. The term “designated union representative,” as used in this Article and throughout the Agreement, refers to a steward, executive board member or a union staff representative.
3. Resource Person:
A resource person is an individual who is not a witness and who has particular expertise as to the subject matter of the grievance and shall be treated in accordance with the time off procedure below.
B. Grievance Steps and Time Frames
a. A grievance must be filed initially within thirty (30) days from any date on which the act which is the subject of the grievance occurred or thirty (30) days from the date on which the grievant should reasonably have known of its occurrence. All references to days in this Article are calendar days.
b. Time limits under this Article may be modified by mutual agreement and consent to extend time limits will not be unreasonably withheld.
c. Any employee may orally present and discuss a complaint with his or her immediate
supervisor on an informal basis.
d. Contractual grievances shall only be processed through representatives designated by the Union.
e. During the Step One and Step Two process the grievant may be represented by a steward or other representative designated by the Union. One person shall act as a spokesperson for the grievant and one person shall act as the spokesperson for management.
f. Should the grievant elect to process a non-contractual grievance without Union representation, he or she shall so indicate on the grievance. The Union shall be sent a copy of the grievance upon receipt of the grievance by the personnel office of the appointing authority. A steward or other representative designated by the Union will be notified of all non-contractual grievance meetings or hearings.
g. The Union shall be given a copy of the final disposition of all grievances. A copy of the decision of the State at each step shall be provided to the grievant and the Union representative involved.
2. Step One
a. In the event the matter is not resolved informally, the grievant or the Union may submit the grievance in writing to the office or individual designated by the Department.
b. A grievance meeting shall be scheduled within ten (10) days of the filing of the grievance unless the parties mutually agree otherwise.
c. A written decision will be rendered by management within ten (10) days of the grievance meeting.
3. Step Two
a. If the grievant or the Union is not satisfied with the Step One disposition, the grievance may be appealed to the Department Head or designee. The appeal shall be accompanied by the decision at the preceding levels and any written record from the earlier proceeding. The appeal must be filed within ten (10) days from receipt of the step one decision or sixty (60) days after the step one decision was due.
b. The Union will specify whether the step two proceeding will be a meeting or a hearing. If the Union requests a hearing, a hearing officer appointed by management will preside. Both parties will be permitted to introduce testimony and exhibits. Either party may make a verbatim record of the hearing. The party making the record will bear the expense. However, if both parties want a copy of the transcript, the cost of the transcript and the reporter shall be shared equally between the parties.
c. The Step Two meeting or hearing will be scheduled within ten (10) days of the receipt of the appeal of the Step One decision. A written decision will be rendered by management within twenty (20) days of the grievance meeting or hearing.
4. Step Three – Arbitration
a. In the event that the grievance has not been satisfactorily resolved at Step Two, and the grievance involves an alleged violation of the Agreement as described in the definition of a grievance in B.1.a above, then arbitration may be brought only by the Union, through its designee within thirty (30) calendar days from the day the Union received the Step Two decision or from the date on which the Step Two decision was due, by mailing a written request for arbitration to the Public Employment Relations Commission and sending a copy to the Office of Employee Relations. In the event the Union deems it necessary to use an additional period beyond the thirty (30) days provided herein the time to appeal may be extended by the Union to not more than twenty (20) additional calendar days. Should the Union use any of these
additional days, it is understood that the time used in computing the extent of the State’s liability shall not exceed twenty (20) days from the day the Union received the Step Two decision or from the date on which the Step Two decision was due. If mutually agreed, a pre-arbitration conference may be scheduled to frame the issue or issues. All communications concerning appeals and decisions at this Step shall be made in writing. The request for arbitration shall contain the names of the department or agency and employee involved, a copy of the grievance form and the Step Two decision, if available.
i. Within thirty (30) days of the execution of this Agreement, the parties shall mutually agree upon a panel of not less than three (3) mediators. In the event the parties are unable to agree upon a panel of three (3) mediators within thirty (30) days of the execution of this Agreement, three mediators will be selected for the panel with the assistance of PERC.
ii. Prior to a grievance being scheduled for arbitration, but after it has been noticed for arbitration, the grievance will be scheduled for mediation. Mediators shall serve on a rotating basis. Where a member of the panel is unable to serve, the next member in sequence shall then serve.
iii. A mediation session will not be scheduled unless there are at least five (5) contract arbitration cases pending, except that mediation will be scheduled at least once each quarter whether or not there are five (5) contract arbitrations pending.
iv. Group grievances, once notified for arbitration, shall be scheduled immediately for mediation without regard to the numerical requirements set forth in subparagraph iii.
c. Within thirty (30) days of the execution of this Agreement, the parties shall mutually agree upon a panel of not less than five (5) arbitrators. Each member of the panel shall serve in turn as the sole arbitrator for a given case. Where a member of the panel is unable to serve, the next member in sequence shall then serve. In the event the parties are unable to agree upon a panel of arbitrators within thirty (30) days of the execution of this Agreement, arbitrators will be selected for the panel with the assistance of PERC. If the parties are unable to agree upon a panel of arbitrations with the assistance of PERC, arbitrators shall be selected on a case-by-case basis under the selection procedure of the Public Employment Relations Commission until such time as the parties agree upon a panel.
d. The arbitrator shall conduct a hearing to determine the facts and render a decision in writing to the parties. The arbitrator shall not have the power to add to, subtract from, or modify the provisions of this Agreement or laws of the State, or any written policy of the State or subdivision thereof not inconsistent with this Agreement, or to determine any dispute involving the exercise of a management function which is within the authority of the State as set forth in Article 1.C., Management Rights, and shall confine his decision solely to the interpretation and application of this Agreement. He shall confine himself to the precise issue submitted for arbitration and shall have no authority to determine any other issues not so submitted to him, nor shall he submit observations or declaration of opinions which are not essential in reaching the determination. The decision or award of the arbitrator shall be final and binding consistent with applicable law and this Agreement. In no event shall the same question or issue be the subject of arbitration more than once. The arbitrator may prescribe an appropriate back pay remedy when he finds a violation of this Agreement, provided such remedy is permitted by law and is consistent with the terms of this Agreement. Any remedy ordered by an arbitrator will not have retroactive affect beyond thirty (30) days from the date the grievance was filed, except that payroll errors and related matters shall be corrected to the date of error. The fees and expenses
of the arbitrator shall be divided equally between the parties. Either party may make a verbatim record through a certified transcriber. Such record is to be made at the requesting party’s expense. However, if both parties want a copy of the transcript, the cost of the transcript and the reporter shall be shared equally between the parties. The cost of any transcript (or copy of any transcript), requested by the Arbitrator, shall be shared equally between the parties. Any other cost of this proceeding shall be borne by the party incurring the cost.
e. The arbitrator shall hold the hearing at a time and place convenient to the parties within thirty (30) calendar days of his acceptance to act as arbitrator and shall issue his decision within thirty (30) days after the close of the hearing. In the event a disagreement exists regarding the arbitrability of an issue, the arbitrator shall make a preliminary determination as to whether the issue is arbitrable under the express terms of this Agreement. Once a determination is made that such a dispute is arbitrable, the arbitrator shall then proceed to determine the merits of the dispute.
f. Whenever a grievance which is to be resolved at Step Three, Arbitration, is based on a provision of this Agreement in which the power or authority of the arbitrator is specifically limited to an advisory award, that limit shall be observed and all the provisions of paragraphs b, c and d above shall be operable except that the award and opinion shall be advisory and not binding on the parties. However, absent a particular exception the provisions of the grievance procedure above shall be operable.
g. Representatives of the Governor’s Office of Employee Relations and the Union will meet bi-monthly to resolve grievances that are appealed to arbitration. Local union representatives and department representatives may participate in the meetings.
C. Union Rights
1. Time Off
This section does not apply to disciplinary arbitrations.
a. When a grievance has been formally submitted in writing and the Union represents the grievant, and where the Union Steward requires time to investigate such grievance to achieve an understanding of the specific work problem during working hours, the Steward will be granted permission and reasonable time, to a limit of two (2) hours, to investigate without loss of pay. It is understood that the supervisor shall schedule such time release, providing the work responsibilities of the Steward and of any involved employee are adequately covered, and providing further there is no disruption of work. Such time release shall not be unreasonably withheld. Where a Union Steward serves a mutually agreed upon grievance district encompassing two (2) or more geographically separate work locations, and where the circumstances require it, a supervisor may authorize a maximum of four (4) hours for any appropriate investigation of grievances. Such time release shall not be construed to include preparation of paperwork record keeping, conferences among Union Officials nor preparation for presentation at a grievance hearing or meeting.
b. An employee and his/her designated representative will be granted time off without loss of pay to attend Step One meetings, Step Two meetings or hearings and arbitration hearings and to travel to and from such meetings and hearings.
c. If a meeting or hearing extends beyond the employee’s normal working hours, compensatory time equal to the additional time spent at the meeting or hearing will be granted, but will not be considered time worked for the computation of overtime.
d. A reasonable number of witnesses and resource persons employed by the State, upon
three (3) days notice, will be granted time off without loss of pay to attend Step One meetings, Step Two meetings or hearings and arbitration hearings and to travel to and from such meetings and hearings.
a. The State will upon request, make available to the Union information in its possession to which the Union is entitled, to properly represent the grievant. Management shall provide the requested information within seven (7) days from receipt of the request. The State will make good faith efforts to identify all documents and information responsive to the Union’s request within seven days of the initial request. In the event information and/or documents responsive to the Union’s request are discovered after the expiration of the seven (7) day period, the State will immediately notify the Union of the discovery of such information and the information and/or documents will be provided within three (3) days following the discovery of such information or documents.
b. The Union, upon request, will make available to the State requested information and documents in its possession necessary for management to respond to the grievance. The Union shall provide the requested information within seven (7) days from receipt of the request. The Union will make good faith efforts to identify all documents and information responsive to the State’s request within seven days of the initial request. In the event information and/or documents responsive to the State’s request are discovered after expiration of the seven (7) day period, the Union will immediately notify the State of the discovery of such information and the information and/or documents will be provided within three (3) days following the discovery of such information or documents. Requests for information will be made directly to the Local or the National Union.
c. Each party has a continuing obligation to provide information responsive to the other party’s request.
d. An arbitrator retains his/her discretion to grant or deny a request for the admission of information and/or documents based on the arguments of the parties. If the State and the Union provide information and/or documents consistent with the time limits set forth in paragraphs a and b above, an arbitrator may not deny the admission of such information or documents based on an argument relating to the timeliness of production.
e. The parties shall make a good faith effort to informally resolve disputes, which arise as to information requests. However, if the parties are unable to agree upon the nature of the information to be provided, a dispute may be submitted to the OER for resolution. If after submission to OER the dispute is not resolved, the parties may seek resolution of the dispute in an administrative or judicial forum or through arbitration.
3. Group Grievances
a. Where a grievance affects more than one employee, the Union may file a group grievance at the first level of supervision common to the affected employees.
b. Where a group grievance affects employees in two or more departments, the Union may submit the grievance directly to the Governor’s Office of Employee Relations. The grievance will be processed as a Step Two grievance.
c. Where individual grievances concerning the same matter are filed by several grievants, it shall be the option of the State to consolidate such grievances for hearing as a group grievance provided the time limitations expressed elsewhere herein are understood to remain unaffected and the union shall be notified of this action.
4. By-passing Steps
A grievance may be initiated at or moved to any step of the procedure without hearing at a lower step by mutual agreement of the parties. Consent to skip steps of the grievance procedure, including mediation, will not be withheld unreasonably.
5. The Right to Amend
The Union may undertake to amend the grievance during the initial step at which such grievance is filed. By mutual agreement the Union may amend the grievance up to Step Two. It is understood that such amendment is only for the purpose of clarification and shall not be utilized to change the nature of the grievance or to include additional issues.
D. General Procedures
1. The lack of response by management within the prescribed time periods, unless time limits have been extended by mutual agreement, should be construed as a negative response.
2. If, at any step in the grievance procedure, the State’s decision is not appealed within the appropriate prescribed time, such grievance will be considered closed and there shall be no further appeal or review.
3. A reasonable number of resource people shall be allowed to attend a grievance meeting or hearing. The parties will schedule resource people to minimize the impact on operations. At the meeting or hearing the Union will present its side of the grievance through the grievant, witnesses and resource people. Management will then proceed to present its responses to the Union’s presentation.
4. The Union shall be given a copy of the final disposition of all grievances. A copy of the decision of the State at each step shall be provided to the grievant and to the Union representative involved.
5. Grievance resolutions or decisions at Steps One and Two shall not constitute a precedent in any arbitration or other proceeding unless a specific agreement to that effect is made in writing by the Office of Employee Relations and the authorized representative of the Union.
6. Unless specifically provided for elsewhere in this Agreement, where the grievance involves an alleged violation of individual rights specified in the Civil Service law and rules for which a specific appeal to the Civil Service Commission is available, the individual must present his complaint to the Civil Service Commission directly, provided however, where allegations of violations of other employee rights which derive from this Agreement occur, it is intended that the provisions of this grievance procedure are to be utilized.
7. A claim of improper and unjust discipline against an employee shall be processed in accordance with Article 5 of this Agreement.
8. The inclusion of or reference by name or title or otherwise in this Agreement to laws, rules, regulations formal policies or orders of the State, shall not be construed as bringing any allegation concerning the interpretation or application of such matters within the scope of arbitrability as set forth in this Agreement.
9. Nothing in this Agreement shall be construed as compelling the Union to submit a grievance to arbitration or to represent an employee before the Merit System Board. The Union’s decision to request the movement of any contractual grievance at any step or to terminate the grievance at any step shall be final as to the interests of the grievant and the Union.
10. A “B.1.b.” grievance may be processed through Step Two of the grievance procedure, but may not be submitted to arbitration.
11. When an employee formally elects to undertake the resolution of a contractual grievance through any available procedure established by an agency of proper authority outside
of those provided herein, such election shall constitute an absolute waiver of the option to appeal the grievance to arbitration unless the parties mutually agree otherwise.
12. If a grievance is appealed to the second step and the Department Head or designee determines that a resolution of the grievance is not within the authority of the department, the grievance will be forwarded to the Governor’s Office of Employee Relations for disposition in accordance with Step Two of this procedure. If the grievance involved a non-contractual matter as defined in B.1.b. the decision of OER shall be final.
13. All grievances must be submitted on the attached grievance form. The form must be completely filled out by the grievant and/or Union. In the event that a grievance form is unavailable the grievance will be in writing and set forth the following information: (a) the names, titles and department of affected employees; (b) the date of occurrence; (c) a brief description of what gave rise to the grievance; and (d) the remedy sought. Grievance forms will be made available at all work sites covered by this Agreement.
14. The State and the Union agree that appeals to arbitration that are not scheduled for hearing within eighteen (18) months after a Step Two decision is rendered will be considered withdrawn unless the parties mutually agree to extend the matter.