APPENDIX L:

• Jurisdiction: United States

APPENDIX L:

Model Grievance and Arbitration Provisions Template for Employers Negotiating Union Contracts—Annotated in Footnotes

INITIAL NEGOTIATING PROPOSAL

Note: This template contains a wide range of provisions creating a strong initial negotiating position. Counsel and negotiators using the template will want to select from these provisions, based on the organization’s level of interest in limiting arbitral power. It is not anticipated that all the provisions of this template will be achieved at any negotiation. Managements should be prepared to modify these provisions as part of the negotiating process. Some provisions raise serious labor law issues if they are insisted upon to impasse. The template does utilize concepts that may fall into gray areas of the law. Consult labor counsel. The footnotes provide the principle point and the rationale for each provision.

Section 1 Definition

An employee grievance is a claim by an individual employee¹ with a real interest in the outcome,² supported by the union,³ that there has been a violation of an express provision of this Labor Agreement⁴ and stating the specific relief requested.⁵

Matters of law may not be raised as grievances.⁶ Questions concerning interpretation of, or violation of, last chance agreements shall not be deemed grievances and shall not be arbitrable.⁷ Only an employee, acting as such, may initiate a grievance. The union agrees that institutional union grievances are knowingly and voluntarily, clearly and unmistakably, after having time to consult with counsel, and in consideration of other terms of this Agreement, waived.⁸ To be timely, a contract interpretation grievance must be filed within ten (10) working days of the date the event or sequence complained of first arose within the bargaining unit.⁹ All other grievances, including discharge grievances, must be filed within seventy-two hours of the date and time of the relevant Company action. These time limits shall include the day on which the event or sequence first occurred.¹⁰ The distinction in time limits between hours and working days is deliberate and must be followed. Failure to file within the time limits specified settles the dispute on the basis of the Company’s action and negates arbitrability. The question of such arbitrability may then no longer be contested before an arbitrator. The concepts of “group grievances,” “class action grievances,” and “continuing violations” are not recognized under this grievance procedure.¹¹ Applicants, probationary employees, “at will” personnel, and past retirees may not file grievances.¹²

Section 2 Processing

Grievances shall be processed as follows:

Step 1 (applicable to only contractual interpretation disputes):¹³

The grievant, accompanied, at the grievant’s option, by the appropriate steward, shall discuss the matter orally with the grievant’s immediate supervisor.¹⁴ The grievance shall be presented to the supervisor within ten (10) working days of the date the alleged event or sequence initially occurred or began. The supervisor shall respond orally as soon as practical, normally within ten (10) working days of receiving the grievance.¹⁵

If the employee is not satisfied with the supervisor’s answer, the employee may appeal to the second step by reducing the grievance to writing, citing the express article and section of the labor agreement alleged violated, stating the specific relief requested, having the grievance signed by both the employee and the steward, and by presenting the written grievance to the employee’s superintendent, or to that person’s designated representative, within not more than five (5) working days of receipt of the immediate supervisor’s first-step answer, including the day of receipt.¹⁶ No grievance may be filed as a “group grievance” or “class action.” The employer does not consent to group or class action arbitrations and if they are deemed mandated by any court, board, or agency, there shall be no consent to arbitrate and to that extent this agreement to arbitrate shall be null and void in its entirety if not found severable.¹⁷ Nothing in this grievance/arbitration agreement is intended to, nor shall it be construed to, limit access to, or the right to file charges at, the National Labor Relations Board.¹⁸

Step 2 (applicable to contractual disputes only):

As soon as practical, normally within five (5) working days of receipt of the steward’s and the grievant’s first-step appeal, the superintendent, or that person’s designated representative, shall schedule a second-step grievance meeting.¹⁹ Persons entitled to attend the second-step grievance meeting shall be the superintendent, or that person’s designated representative, a representative of the human resources function, the grievant’s immediate supervisor, the grievant and the appropriate steward.²⁰ However, to avoid coercion or undue influence, the grievant may be excluded when other bargaining unit employees are testifying. Only new matter shall be considered at this meeting.²¹ As soon as practical, normally within ten (10) working days after the second-step meeting, the superintendent, or that person’s designated representative, shall answer the grievance in writing, with a copy to the grievant and the steward. The day of receipt and the day of the meeting shall be considered the first day of their respective time limit periods.²²

In the event that both the employee and the steward are not satisfied with the written second-step answer, they may appeal to a third step, in writing, but to be valid the grievance must be signed by the employee and the steward, and must state the express article and section alleged violated and the specific relief requested.²³ To be timely, this appeal must be signed and presented within ten (10) working days of receipt of the second-step answer. The day of receipt shall be considered the first day for time limit purposes.²⁴

Step 3

All covered non-contract interpretation grievances shall start at the third step. To be timely, a non-contract interpretation grievance must be signed by the employee and the steward and presented within seventy-two (72) hours of the date and time of Company action relevant to the event. Suspensions pending investigation are not grievable. The date/time of a discharge is to be deemed 9:00 A.M. on the date the employee is given notice of discharge.²⁵ No “group” or “class action” grievance may be filed.²⁶ An employee who is disciplined or discharged for violating a last chance agreement may not grieve or otherwise challenge such action.²⁷

As soon as practical, normally within ten (10) working days of receipt of a third-step grievance, the human resources manager, or that person’s designated representative, shall schedule a third-step meeting.²⁸ Present at the third-step meeting may be the human resources manager and/or that person’s designated representative, the plant manager, or that person’s representative, the grievant’s immediate supervisor, the appropriate steward, the International Representative (or that person’s representative) at the request of the local union, and the grievant unless excused by both parties.²⁹ Only new matter shall be considered at the third-step meeting.³⁰ As soon as practical, normally within five (5) working days of the third-step meeting, the human resources manager, or that person’s designated representative, shall answer the grievance, in writing, with a copy to the grievant, the steward and the union. The day of receipt of the grievance and the day of the meeting shall be considered the first day of their respective time limit periods.³¹ At all stages under this article, the Union is the moving party in the grievance/arbitration process and the burden of moving the matter ahead is exclusively on the Union.

Section 3—Arbitration Agreement

Appeal Requirements: If both the union and the employee are dissatisfied with the written step-three response, they may appeal the matter to arbitration by filing an appeal with the Company, in writing, which to be valid and effective must be received by the Company within no more than ten (10) working days of the issuance of the third-step answer (the day of issuance shall be counted as the first day for time limit purposes). The appeal must be in a form also acceptable to the arbitrator provider agency and conform in all aspects to the provider’s filing requirements, or it shall be invalid, but the parties are not incorporating the provider’s rules by reference or otherwise.³² No more than one issue may be arbitrated on a single day. The issues to be arbitrated may not be expanded beyond the issue(s) identified on the appeal form.³³ To be valid, the appeal must also be signed by the employee and by the Local Union President, or that person’s representative, must specifically state the express article and section of the labor agreement alleged violated, and state the specific relief requested.³⁴ No action taken under or arising out of a last chance agreement (LCA) shall be subject to arbitration.

Time Limit, Filing Fee and Selection: As soon as practical, normally within ten (10) working days of receipt of the appeal to arbitration, the manager of human resources shall select and provide the union with a list of five (5) attorney-arbitrators who appear on FMCS and/or AAA labor arbitration rosters.³⁵ Any of these five (5) shall be deemed acceptable to the Company. The manager of human resources shall frame the sole issue(s) the arbitrator shall be empowered to decide.³⁶ Within five (5) working days of receipt of this list of acceptable arbitrators, the union shall notify the Company of which arbitrator the union has chosen from that list. Failure to select an arbitrator from the list within the time frame provided shall result in the grievance being settled on the basis of the last Company response.³⁷

Disclosure: Before accepting designation as the arbitrator, the selected person shall disclose to the parties any and all conflicts of...