CAN WE DENY A GRIEVANCE IF...........

Crout

Two ee's were given verbal warnings over medication errors. They grieved of course, and we had a stage 1 meeting. Their position was that the instructions for the distribution of the medications were not clear. Since they both worked at the same location and the verbals were over the same incident, we had one meeting to cover both ee's. We had solid, documented evidence to prove that the instructions were clear. The decision to sustain the grievance was handed down, and they filed another grievance. This time they are claiming that the disciplines were not "corrective and progressive in nature." This is utter nonsense and we are going to deny the grievance. My question is: what grounds should we use to deny the grievance? It seems to me that we should cite the preponderance of evidence brought out in the first meeting, but what about the fact that they are now changing their claims? Is that procedurely correct? Can the Union keep "changing horses in the middle of the stream," so to speak, in order to drag on the process? Thank you for your response.

Don D

Crout: Not knowing your contract or anything about your procedurally required steps, its hard to say. Speaking from a frame of reference of OUR contract, however, I will say that we often do deny the originally filed grievance at each required step right up to the step that is the company's final response. No, we do not let grievances advance that become side grievances or contain additional charges. Each grievance issue must stand on its own (here). I don't think it's sensible to let the union jerk you around by changing horses or taking off in new directions. That's why our process requires that the original grievance specifically state what occured that is grievable, who is the grieving party, what policy is grievable and and specifically which section of the contract is relevant. Its hard to keep the grievance on course without all those pieces. I wouldn't address anything other than the original grievance. With our union, when they decide to challenge a response and elevate the grievance, they just indicate that desire and there's a comments space that they might enter what they think is relevant. If the union alleges that one of our policies is not clear, we generally cite how long it's been in place, where it's posted and manualized, who signed for it and when plus any events where it might have been emphasized in training, etc. And then we'd state that "The company stands by its written and publicized policy and by its decision to discipline the grieving parties for policy or procedure violations." If, though, you really do see that your policy is unclear and subject to extreme interpretation, you may want to look at changing it in fairness to the employees and the facility. It sounds as though you're in a medical facility and I would think the policies and procedures are well established and mandated. Hope this helps.

Crout

Thank you very much for your help. Contractually, our prodedures only specify timelines (which the union followed) and that disciplines and terminations be progressive in nature and for "just cause." The "changing horses" aspect was interesting to me and I wanted to get a sense of how others have dealt with a similar tactic. My gut feeling is to stand by the original grievance and the solid evidence we already have. The only question in my mind is wether or not to mention the "changing horses" tactic in the response. I would not necessarily cite it as a reason for denial, but throw it out there as something the Union is doing that's not quite kosher. On the one hand this may create some waves, but on the other hand I feel the need to go on record so as not to help create a precedent. Any thoughts you might have on this would be appreciated.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 06-21-02 AT 07:11PM (CST)[/font][p]You need to check your contract's article on grievances. Is this second grievance filed timely? It should have been stated as an issue of the first grievance, since the employees already knew that they had been given a verbal warning and could have raised the issue, as ridiculous as it is, that this was not in com;iance with the company's policy or contract's progressive discipline article.

By the way, make sure that the policy does indicate that management reserves the right to modify in a particular situtaion, ether by repeating or skipping any step in the progressive discipline process, as warranted by the individual facts.

If you reject it for being untimely, DON'T respond on the grievance form. Instead do a memo back returning the grievance and indicating that it is untimely filed under the aprovisios of the agrievance article. Give the citation; don't reference anything about any next step. And don't say that you are "denying the grievance." If you ARE rejecting it for being untimely, say that.

If you respond on the grievance form itself, it could open it up to eventually to "arbitration." By putting the rejection based uon the untimeliness outside of the grievance process, you help close down that possibility.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 06-24-02 AT 10:48AM (CST)[/font][p]Since the grievance process is applicable to both grievances, and they are both now in the works, why don't you combine them as one grievance at the second level? See if the union is willng to do that. It would make sense and cut down on unneeded work and delays. Deal with the grievance on the second issue and then handle both grievances as one at the second level if the union agrees.

From what you posted, I'm not quite sure on what basis you are going to deny the grievance citing that you failed to follow progressive discipline requirements of the CBA. Is there anything in the contract or in your policy that the union okayed that permits the altering of the progressive discpline steps? If so, you should be okay. If not, you may have a problem at arbitration.

Regarding "throwing out" the second grievance since it's timely and asuming there is nothing stated about the number of grievances that can be filed, you may find it not supportable to deny the grievance on a procedural basis. I don't believe that an arbitrator would find it acceptable to violate the wording of the grievance article because management found the grievance "not quite kosher."

Don D

I would like another run at this one, x:-), from the perspective of a Mississippi employer with an IBEW contract. The whole thing got off track, I think, when the employees filed a second grievance while the first was in progress, assuming them both to be the same. There is no way I would combine the two of them into one. Your step one process, following the issuance of verbal warnings was a meeting with both employees where you said your instuctions and the warning were appropriate, I think I hear you saying. I don't know your particular steps, but, would think the employees and union then should have elevated the grievance to a step 2 written level to appeal your verbal conference ruling. To deviate from the original grievance and then raise the claim that the verbal discipline was not corrective and progressive would not pass muster with our written grievance procedure. That sounds like grieving a non-grievable issue; your company policy and procedures (which hopefully are protected in the contract by your management's rights clause). In the first grievance, if they wanted to grieve the ligitimacy of the discipline beyond the verbal conference level, they have the opportunity to do that. If the Union wants to grieve whether or not you appropriately followed your disciplinary steps, that should be so stated as the basis for a second grievance. The first grievance was that they said the instructions for med issuance were unclear. You feel you disproved that and so stated. Then they came along and said, "Well, now we don't agree with the Company's definitions of progressive and corrective, so let's debate that." Again, I would let the first grievance run its course, through its shelf-life and steps; then, would entertain the second grievance if they want to get into a symantics debate over progressive and corrective. Or you can run them simultaneously in order to preserve the time requirements. I feel that the employees and the union know full well that the med issuance policy was clear, was violated and was disciplined. Allowing them to rabbit-trail off into symantics-land in the middle of the first grievance is improper. Two issues, Two grievances, Two sets of procedural steps, Two final company decisions.....clearly separable. x:-)