Getting More Out of Grievances
Part 4
Turning Up The Heat
Here are some ideas on turning up the heat during the grievance procedure and getting management to "yes":
Don't Grieve The Unwinnable
If you want to have a snowball's chance in hell of winning your grievance you must allege a violation of the collective agreement - some clause or group of clauses that management has breached in its treatment of you. Sometimes finding the clause(s) may be easy (the violation may be in the article that deals with seniority or job posting or vacation scheduling or whatever you are going to say wasn't done properly) and sometimes you have to look a little harder. Some management actions may not be directly referenced in the agreement itself but may be captured in general language that deals with "fair treatment", "fair working conditions" or something like that. (You'll probably need your union rep or steward to find these if they exist in your agreement and if they are applicable in your case.)
Sometimes, however, your issue may be something that is not covered by the agreement at all and there is little hope that any language in your contract can be made to fit the bill. If that's the case, you've got no case. Don't file grievances where you have no chance at all of success (unless this is part of a broader strategy that is designed to achieve something other than an arbitration ruling). There may be some other venue where you can take your issue (your LRB, Human Rights Commission, Occupational Health and Safety Agency or to the bargaining table at the next round of contract negotiations). If you have no hope of success at arbitration, however, don't go there. You won't win and, because management knows that, you've got no negotiating leverage.
Understand The Process
Understand how the grievance procedure in your collective agreement works. How will the grievance be filed? Who on the management side will be receiving it and responding to it? Who will be involved in discussions about it? When does the grievance need to be in presented in writing? Each collective agreement has its own procedure. Discuss this with your union rep and make sure you understand it. Find out from your union rep that from the union will be responsible for looking after the grievance at the various grievance procedure steps and what decisions, assessments or judgment calls they will be making. Find out also, what kinds of discussion may be held with management throughout the grievance procedure - formal and informal. Will you be involved in all of these discussions? If not, tell your union rep that you will want a briefing and debriefing before and after any discussions at which you are not present.
Check Out The Landscape
Find out from your union rep how many grievances are filed in your workplace, department or work unit each year. Of those, how many are settled, how many go to arbitration, how many are dropped? Has a grievance on the issue you're going to be raising been filed before? How did management react to it? What became of it? Who in management will be involved in the grievance you're filing? None of this information will give you much insight into whether you will win or lose your grievance but it may give you some insight into how management will react to your grievance. If they've heard it all before a hundred times and it's been dropped a hundred times, good luck trying to get their attention and never mind getting the settlement you want. Maybe you should just zip right on through to arbitration. If it's new ground that you're breaking, you may have more leverage. New issues are unsettling and unsettling your opponent is good.
Keep Your Eye On The Ball
Simply by filing a grievance you've taken an important step forward. You're raising an issue that's important to you and possibly to other workers in a very formal way - one that can ultimately lead to the issue being decided by an independent third party (an arbitrator) in a way that is final, binding and sets a legal precedent. Management can't ignore the grievance and make it go away. Even if management disagrees completely with the union's position on the grievance, it still must go through the grievance procedure "step" meetings, attend the arbitration hearing and defend it's position and if it loses the case, there's no second chance. Keep this in mind as you go along. It will help you cope with the frustration and disappointment you'll encounter along the way.
Involve Your Union Representatives
Engage your union representatives in discussions about communications right at the very beginning. Tell your reps (the stewards and business agents who will be involved in the grievance) that you want to take an active part in discussions about the grievance and that you want to map out the most effective way in (which) you can participate. Impress upon your reps that you think that you will all be very effective if you collaborate on this in a way that will allow everyone involved to use their skills and knowledge to the fullest.
Nowhere will you find something that says that you cannot talk at these meetings and it can be very effective if you do. Management is more comfortable if you don't talk. Discomfort can motivate people to settle (we tend to want to flee from things that make us uncomfortable). It's important that you and all of the union representatives who are going to be at the meeting take an active part in the meeting. If your rep says nothing, management may take that as a sign that the union is really not that interested in this grievance.
Scope Out The Opportunities
There will be at least a few opportunities to engage management representatives in discussion about your grievance as you go along. Some will be formal (the grievance procedure "step" meetings, mediation meetings and the arbitration hearing itself) but opportunities to initiate informal discussions with management representatives may come along as well. These may involve chance meetings in the hallway or on the shop floor with anyone from your supervisor to the head of your department to the labour relations expert from the corporate office. Strategize with your reps about both the formal and informal opportunities.
Talk about how communication at the step meetings will be handled. What will be the focus of the discussion? At the initial step meetings, the participants are usually local level managers. Hammering away at the benefit of local or in-house solutions may be more effective at these steps than later on when bigger players from the corporate office get involved. IN these latter stages, hammering away at local managers' mistakes could be more effective since the corporate guys are there to save the local guys from themselves. Who will say what and when?
Step meetings usually involve discussion of a number of different items: The reason for the grievance, the facts - what happened, when, where, who was involved. The violation of the collective agreement - the specific clauses. The remedy - what the union is seeking, any proposals for settlement or counterproposals in response to offers to settle from management. It may be that your union rep takes the lead on Item 1, you take the lead on Item 2, your steward takes the lead on Item #3 or you hand that over to the rep (this is just an example of how you might decide to handle the discussion). Be careful that you don't over script or carve up the speaking parts in a way that will get in the way of dialogue (management doesn't want dialogue) or prevent you and your reps from taking advantage of opportunities to further strengthen your case based on manager's statements or comments. You're trying to get a general sense of the ground you're going to cover and who will take the lead on certain aspects of it.
Talk about the informal opportunities that may present themselves: Is it OK for you to lean on your supervisor or manager about the grievance from time to time? If you encounter the Labour Relations Manager in the hall or at some other meeting, is it advantageous to strike up a discussion about your grievance? It may be. The Manager will, of course, not make any commitments but will be horrified that you brought the subject up informally and this may help in the softening up. (Do this discreetly.) If the union rep has a similar opportunity should s/he act on it? What will be said? If you are going to be having these kinds of chance encounters, how will you all keep each other posted on who's said what to who?
If you are going to try to mine the informal opportunities, exercise discretion. Embarrassing people or putting them on the spot in front of others is more likely to make them even stronger in their resolve to beat you. Avoid doing this in confrontational ways. Remember, your objective is to plant seeds of doubt, unsettle people in subtle ways, give them the impression that settlement is a good thing and that they can be heroes by helping to make one happen. Be tactful and discreet. Take your target aside and ask diplomatically "So have you had a chance to think about our proposal for settlement?" or "I'm still trying to understand what the obstacle is for you guys?"
Don't be put off if the manager balks at your question and runs away. That's OK. By doing something unconventional, you're unsettling them and creating your own rules for the game.
Your Union Must Be Behind You 100%
It's really important that your union be seen to be behind you and your grievance 100%. Management needs to know that the issue involved in the grievance is one that is important to the union and not just to you. This can influence how seriously management takes your grievance.
Managers like to believe that the union isn't really all that keen on pursuing most grievances and will drop most of them somewhere along the way. This is especially true if your union is a biz union. Managers who think this are less likely to want to settle because they believe that the grievance will disappear sooner or later anyway. It's really important that the message you and your union reps communicate is that the issue behind the grievance is very important and the union is behind you 100%. Even if management doesn't care much for you, most LR managers want to get along with their union counterparts. Hearing that a grievance is important to the union could prompt them to take it more seriously.
Get Your Message Straight
Before you talk to anyone in management about your grievance get your message straight. It's really important that you and your union reps are saying the same thing about your grievance.
The message you want to communicate should include the following elements:
- What the grievance is about and why it's an important issue to you, the union and the bargaining unit.
- The union intends to proceed full tilt with this grievance and will arbitrate if necessary.
- You and your union are willing to discuss possible resolution but you're not going to back off or sell out any important principles to do that.
Mixed messages on these points will cause management to question the union's commitment to the grievance. They will be that much more likely to sit on their hands and wait for the grievance to go away.
If you are involved in a group grievance (two or more grievers raising the same issue), it's important that all the grievers are on the same page as far as the message goes. Managers tend to look longer and harder to signs of disunity among grievers in a group grievance, just because there are more of you and more opportunities for disagreement.
Decide What You Will And Won't Discuss
Get an understanding among yourselves about what you absolutely can't and won't say to management, whether you are speaking formally or informally. Typically, making admissions of guilt is not a good move (unless its part of a strategy that involves a demand for leniency or reduction in a penalty), nor should you be disclosing your bottom line (if you are willing to compromise) nor should you indicate that there is any disagreement at all between you and your reps about any aspect of the grievance or a possible settlement. Talk about what you will do or should do if you are at a loss for words or don't know how to respond to a question or comment. Do not make comments that could undermine your interests.
Problems With Your Case? Deal With Them!
Discuss how you will deal with aspects of your case that are problematic or could make a win very difficult to achieve. Weak spots in a grievance will have to be addressed. Developing a strategy for minimizing the damage or even flipping it over and making it work for you, is important.
Here's an example: Let's say that when confronted with allegations of serious wrong doing by management, you broke down, 'fessed up to everything, including things you didn't do. You declined to have a union rep present at the interview because you didn't think the meeting was going to be about that. You were suspended for the misconduct and management will surely use your admissions against you. There are a number of very effective ways of dealing with this situation. One could result in the entire discussion being ruled inadmissible (if your contract said a union rep must be present at disciplinary meetings, then your confession is out the window and so is the suspension!).
If there are problems with your case, discuss the most effective way to address these. There's no point in avoiding or ignoring them. They will come up at the step meetings and will definitely be used by management at arbitration. You don't want your representatives to be caught by surprise.
Grievance Discussions Are "Without Prejudice"
Grievance discussions are typically held on a "without prejudice" basis. This means that the participants are free to talk about the grievance, the circumstances behind it and possible resolutions without fear that something they say or do will be used against them as admissions of guilt or liability if the grievance ends up at arbitration. Make sure management understands this. If you are speaking off the record, make sure they understand this as well. If you don't trust them, don't say anything you wouldn't want repeated or tossed back at you.
Talk To Managers As People, Not Organizations
Think of and communicate with the employer as the people who are representing the employer - not as some humungous entity that exists on paper. The people you will be dealing with are the people who will be making decisions about the grievance (whether to take a hard position or try to resolve it; when, where and on what terms to resolve it and so on). They're the ones you're going to have to persuade, scare, make uncomfortable or whatever. Think of the management representatives as people rather than titles and talk to them person-to-person instead of organization-to-organization (union to company). Person-to-person is more effective. It's harder to say "no" to a person than to an organization.
Take this a step further and refer to the management reps by their first names. This is unsettling if they're not used to it and that's OK. You want to shake them up a little. If they refer to you as "the griever" ask them to refer to you by name. This helps establish a sense of equality in rank. You may be their subordinate when you're on the shop floor but you are not their subordinate in this process.
During the course of your grievance meetings, address questions and comments to the various management reps at the table rather than just at the spokesperson. Most will balk at this and refer you to their chief talking head. Again, that's not a loss for you. You're stirring things up. Some will feel rattled by being asked something they'd rather not talk about. Others will bristle at the fact that they couldn't respond and had to let their talking head do the talking for them (management muzzles its representatives as well).
The Importance Of Being Clear
Whenever you are discussing the grievance, be clear about the issue, why it's important and the resolution you are seeking. Management will be trying to spot differences of commitment between you, your steward(s) and your union rep while the discussion is going on. They will be doing this in an effort to determine whether this is really just your issue or whether it's an issue that is important to the union as well. It's really important that you and your reps not send out any mixed signals - intentional or not. Don't beat around the bush or do lengthy prefaces to your comments. Confusing management can be helpful but you don't want them to be confused about where you're coming from. Make your points plainly and quickly.
To Script Or Not To Script?
It's useful to bring speakers notes with you so that you don't forget to cover off important points or information. Avoid reading verbatim from a script however. You will give the impression that either, (a) the meeting is a pro forma thing, or (b) you can't be trusted to speak and have been scripted to save you from yourself. You also lose the advantage that comes from looking your opponents in the eye and being able to observe their reactions as you go along.
Beat The Problem-Solving Drum Slowly
Most managers, even the biggest jerks, like to think of themselves as problem solvers. This is so of line managers (the people who manage your department) and staff positions (labor relations managers and other corporate staff). Problem solving, dispute resolution and "win win" solutions are all really trendy concepts in management. In the step meetings and during informal discussions (if you are going to have these), remind managers of the importance of working really hard to resolve issues. You can do this in a way that does not make it appear that you are overly anxious for a settlement. "You know Bob, the union is prepared to take this all the way but since we are in a resolution mode here today, we'd like to hear some creative thinking from you about how we can solve this problem."
Use conciliatory expressions like: You want to settle this don't you? We can settle this ourselves; I see no reason why we can't. How about a win-win solution?
Create A Sense Of Urgency
You want to convey to management that the issue behind the grievance is something that needs to be resolved - whether between "the parties" or by an arbitrator - quickly. Make up a list of reasons why this is so and cite them whenever it makes sense to do so. Tell management that you expect they will respect the time lines and other requirements of the grievance procedure (you want to do this to prevent them from stalling).
Get What You Want Our On The Table
Make sure that your proposed resolution is presented clearly along with a supporting rationale. This can often be something as simple as: I am contractually entitled to ________________. You have failed to live up to this contractual commitment, therefore am I owed full compensation. Why should I settle for any less?"
If you are prepared to compromise, state your proposal in clear and unambiguous terms and make up a list of three or four really good reasons why management should accept your proposal and beat the drum about these every time you have to discuss your proposed resolution. Management will, almost inevitably, blanch at your resolution. You give yourself an advantage, however, by putting one out there (you will look like a reasonable person for having gone this extra mile) and you will be setting the parameters for any future settlement discussions (you can always tell a mediator or arbitrator, "Well, we've already put an offer out there and we're prepared to work with it within reason. What we offered was..."). It's a game, remember?
Different Grievance, Different Approaches:
There are two kinds of grievances that you're likely to be involved with: Discipline grievances and language interpretation grievances. Each calls for a different approach.
With discipline grievances you are in the driver's seat. Management has to clear three big hurdles in order to win. (1) They have to prove that you did what they are accusing you of doing, (2) they have to establish that what you did was culpable or blameworthy behavior and (3) they have to convince the arbitrator that the punishment they meted out fit the crime. With discipline grievances, we would urge caution in informal communications. Management is probably very wedded to its discipline and doesn't want to back off. At the same time, you don't want to give away any of your case. Wait 'til you hear what they have to say at the grievance meeting. Then surprise them with your information about how lousy their case really is.
At the grievance meeting hammer away at them about whichever of the hurdles you think are a weak point in their case. If they haven't proven that you did anything, tell them that and ask for disclosure of any further evidence. If you've done what they're alleging, argue about culpability (not always easy but sometimes worth doing). Your strongest arguments are likely to be around the punishment fitting the crime.
Relentlessly remind management that:
- Others have been treated more leniently.
- Managers and supervisors do it and get away with it. Cite examples (this can be very effective).
- You have a long service and a clean disciplinary record and that was not taken into account.
- The company's policy is not well understood and not consistently enforced.
All of these are factors that an arbitrator will consider in determining whether you're guilty of anything or whether the punishment fits the crime. Management knows this. If any one of these factors, or combination of them, is present in your case, they'll know they have a problem. Reminding them of it may soften them up some. There may be other factors that weigh in your favor, add those to the list. Remind them that it's better to settle now than later.
You've got the upper hand in these kinds of grievances. So stand your ground and don't back off unless there is a reason for you to need to consider a compromise. There are a lot of different resolutions to discipline grievances. Removal of the discipline and full back pay are usually your goal. If you have to compromise, however, you may want to consider a reduction in the penalty, partial back pay, rewording of the disciplinary notice so that it's not quite as damning, a limit to the length of time the notice will stay on your file or some combination of these.
On language interpretation grievances, you and the union have the uphill battle in that you must persuade the arbitrator that there is a violation of the collective agreement. This may not be all that difficult to do. Collective agreement language is given its plain and ordinary meaning by arbitrators when they are called upon to interpret it. If the agreement says X and the company did Y, it shouldn't be too difficult to establish a violation.
Provide as much detail about the violation as you can. Describe what management did and what they should have done. Emphasize that you and your union can't look the other way when the agreement is violated. Why have the language in the collective agreement in the first place?
List as many articles as you can that are relevant to your argument. Don't assume anything is understood and don't leave anything out for another day. If you don't raise an issue or an argument at the grievance meeting you may be prevented from raising it at the arbitration hearing. Stick to your position.
Don't Get Fished In
Don't get knocked off stride by red herrings and comments, statements or questions that sound important or imposing but are actually pretty irrelevant. For example, let's say the management guy says to you, "How can you expect us to give you that job at this point? There is already someone in it. You'll be displacing another union member." Answer: That's not relevant. That person is being advantaged as result of your violating the contract. If they are disadvantaged it will be because of your having to undo your mistake. Put the blame where it belongs and let's get back to talking about how we can resolve this."
Watch out for management reps that want to confuse you with a lot of talk about the case law and arbitral principles and management prerogatives. If they say anything at all that you don't understand, ask them to explain. Keep asking until either you understand what they're saying or they understand that they're not making any sense. (Try asking "Why?" or "What else?" frequently and see what happens!) Alternatively, tell them to save it for the arbitration hearing. You thought the purpose of this meeting was to try to resolve the grievance. Stick to your argument and keep making your points.
Press The Biggest Buttons First And Most Often
At the Step 1 meeting, you may want to focus on the value of local level solutions. By the time you get to Step 2 or 3 (when corporate office people get involved), this approach may not be as effective. Once the corporate people arrive (during the later stages) it may be more effective to focus on the failings and errors of local managers since that's what the LR experts are supposed to be on the lookout for anyway. Over the long run, it may encourage your local managers to settle up in the earlier stages because they'd rather not have the corporate staffers picking through their mistakes.
Read The Signals
Corporate office reps arrive at the grievance meeting with a good idea of the position they're going to take already set in their heads. They're either going to take a hard line or settle the grievance. If they want to take a hard line, it will become apparent from the very beginning of the discussion. If they want to settle, they will be more conciliatory and will probably propose something early on in the meeting. If you're getting the hard line, don't waste your time. Tell them what you want. If your proposal is rejected outright, tell management you'll see them in court. If, on the other hand, you're getting the conciliatory treatment, they want to make a deal. Make sure it's the one you want.
Plot Your Moves And Stay A Step Ahead
If management wants to make a deal and you're prepared to entertain a compromise, map out a few moves in between your full remedy and the bottom line settlement you're prepared to accept. Each move is a proposal or counterproposal whether it's a big move or just a wiggle. Management people love to negotiate. Once the offers start going back and forth, a deal is almost always possible. By mapping out your moves in advance, you'll be able to keep the deal in your ballpark and out of theirs.
Look Before You Leap
Don't bite on proposals for settlement too quickly no matter how good they sound to you. Always ask for a moment to speak with your representatives. This makes a lot of sense in that you want to understand exactly what's being proposed and its implications before agreeing. You also don't want to sound too anxious. The lull in the action while you and your reps are deliberating can also create a sense of suspense and anticipation. People sometimes get more and more committed to finding a settlement when this happens.
Speak From Your Head And Your Heart, Not From Your Butt
Speaking from the heart can be very effective. It's compelling, it's hard to dispute and it can tug at people emotionally and get them questioning their positions. Speaking form the heart means speaking about things in a way that people will connect with on a deep emotional level. It does not, however, mean foaming at the mouth.
Whatever you are discussing, wherever and with whomever, always, always, always keep your cool. If you're having a hard time doing this, repeat this over and over to yourself: S/he who angers me controls me. Remind yourself of that when you react emotionally, you lose your edge, you won't think clearly and you'll make mistakes.
Emotional outbursts, threats or personal attacks won't help you no matter how good they might make you feel in the short run. Remember, you're trying to persuade people to do things they really don't want to do. Pissing them off isn't gong to take you there. Emotional outbursts are regarded by management types as indicators that this is really just your issue and no one else's or that you're out of control or don't know what you're talking about or all of the above.
Avoid posturing. Posturing distracts people from your message or is recognized for what it is: Phony behavior. You will be more effective without posturing. Avoid body language like rolling eyes, gesticulating with your hands, leaning over in a threatening or menacing manner or similar behavior. This stuff is unlikely to soften anyone up and will probably just get everybody dug in deeper.
Speak intelligently and keep what you say relevant to your grievance. Why it's been filed, why it's important, what needs to happen to resolve it. Why it's important that management take an active role in the resolution process. Speaking intelligently does not mean that you have to use a lot of large words or long sentences. It means speaking clearly and in a way that makes sense. The more that you give management to think about, the more uncomfortable they'll become, the more likely that they'll start to warm up to the idea of a settlement.
Nervous?
Don't worry about it. Nervousness doesn't count against you or detract from your message. Everyone who has ever had to speak in front of a group (especially a hostile group) knows the feeling. If anything, it conveys that you care about what's going on.
Keep An Ear To The Ground For Opportunities
Take advantage of opportunities that come along to plant seeds or to convey a sense of urgency about resolving this grievance. If your collective agreement is coming up for renewal or there is some other really big issue that management is trying to sort out with the union, they may be more amenable to resolving your grievance. When the chips are down, everyone wants a "win-win". The beginning of new business cycles or new initiatives can also be an advantageous time to revisit the grievance. "Let's start with a clean slate and put this thing behind us so we can get on with our new challenges. Here's all it will take..."
Put It To Them In Words They'll Understand
Don't be shy about using some good management concepts and business jargon in the course of making your point. Talk to management about accountability and responsibility when it comes to living up to contractual obligations. Living up to our commitments is a best practice, resolving our issues quickly and equitably should be standard operating procedure. Treating people fairly is doing right things right. If your company, department or work unit has a mission statement or something that talks about its goals and objectives, feel free to work that into the discussion if it helps you.
Patience Is A Virtue
Few employers will compromise on a grievance willingly especially in the early stages of the grievance procedure unless they are blatantly in the wrong and don't mind you knowing that. You can expect that that your first attempt at communicating with them will not generate anything in particular. What you're looking to do is "influencing" their thinking and that may be a long process. The good news is that every step you take is worth something to you.
Communicating With Others About Your Grievance
Discuss with your union reps the extent to which you can or should communicate with others about your grievance. There are few situations where complete silence is advisable. Your grievance may be of interest to your co-workers, other members of your union and community. Talk about what can be communicated and when. Discuss the possibility of writing about your grievance, the outcome and the whole grievance procedure experience in one of your union's publications. Tell us about it!