Grievance Language: Issues and Remedies
As previously discussed in this column, you have the right to file a grievance. The purpose of a grievance is to let management what your concern is and what you want them to do to fix the problem. When concerns are not resolved at the local level, arbitration is a potential last step. It is important to know that, at the very initial step of the grievance process, the issue and remedy are properly framed so that if the matter does get to arbitration, the arbitrator can give you the remedy you want. An arbitrator has broad authority to remedy grievances raised through a negotiated grievance procedure. The Union’s job is to properly frame those issues and request appropriate remedies when filing the grievance at the first stage. It is generally a good idea to frame the issues clearly for the arbitrator in the grievance so as to avoid losing control of the theory of the case. Although the exact language used to request a remedy may not be binding on an arbitrator, it is wise to give him or her a great latitude to fashion a remedy.
An arbitrator may not rule on an issue not raised in the grievance. The arbitrator has wide discretion to frame the issues when the parties are unable to do so. In the absence of a stipulation of the issue to be resolved, an arbitrator’s formulation of the issue is accorded substantial deference by the FLRA. For all of these reasons it is a good idea to clearly state the Union’s case in the grievance. To that end, the grievance should clearly state the who, what, where, when, and why of the matter, so that the arbitrator can clearly understand what’s going on. It should also clearly state whatever harm is being suffered by bargaining unit employees. If the arbitrator does not understand the Union’s argument, he is free to frame the issue himself under the law. Therefore, it is crucial that grievances are as clear and precise as possible. On the other hand, the grievance should leave some latitude as to the Union’s theory of the case in order to provide a little “wiggle room” for the advocate at the hearing. An overly detailed and narrowly framed grievance can limit an advocate’s ability to frame the issues more effectively by arguing alternate legal theories, etc. To that end, specific language is used in the grievance to denote the Agency’s alleged transgressions.
Example: The Agency’s actions violated the Parties’ Collective Bargaining Agreement, including but not limited to, Article XX, and all other applicable law, rule and regulation.
The above example gives a specific section of the contract as the basis for the grievance, but leaves the door open to expanding on the argument at hearing. This language provides the most latitude for the Union advocate to work with while keeping the issue fairly clear. Failure to clearly define an issue can result in the Arbitrator deciding on their own what the issue is, and that is usually not advantageous to our case. Keep these rules in mind when framing your issue in the written grievance.
Just as important as the issue is the remedy requested by the Union. The remedy section of your grievance is where you tell the arbitrator what you want him to do if he sustains the Union’s grievance. Often, the Union seeks a redress of specific injury, such as a discipline or discharge. In addition, the Union often seeks to prevent a change in working conditions or have such a change rescinded where it was implemented illegally. In any case, the Union typically asks for the Agency to take remedial action to redress the harm it caused. This usually consists of a short bullet-point list of action the Agency should take. Each aspect of harm should be addressed. For example, if an employee was charged AWOL and disciplined for an unauthorized absence, it is important to ask both for a recession of the discipline and the removal the AWOL charge if neither is warranted.
Arbitrators have broad authority and latitude to fashion a remedy for a violation of employees’ rights under a collective bargaining agreement. Therefore, they can theoretically award remedies not specifically requested by the Union. Arbitrators are often reluctant, however, to exceed or go far from the requested remedy because this can lead to an appeal of the Arbitrator’s decision. Because of this fact, in order to preserve the maximum possible latitude for the Arbitrator to fix the problem, the Union uses a specific phrase to keep the Arbitrator’s options open. Specifically, and the very end of the remedy section, the last bullet point should always read:
“And any other remedy deemed appropriate.”
This language enables the Arbitrator to redress the problem in any way he sees fit aside from the specific remedies requested by the Union, while giving the Arbitrator the cover of acting within the requested remedy. It gives our bargaining unit employees maximum protection with minimum risk. Please observe this convention when drafting all of your grievances.
Consult with your LR Representative when drafting grievances to be certain that your issue and remedy are written in the most effective manner possible.