I. General
The grievance procedure is the means where by the contract is enforced. Without it, the rights of the UNION and the members of the bargaining unit set forth in the Agreement would be without substance or meaning. It is the policy of the UNION to enforce vigorously all provisions of the Agreement through aggressive use of the grievance procedure.
An effective functioning grievance procedure improves employer-employee relations by providing a mechanism for the resolution of employee complaints, which otherwise can become festering sores which poison the working environment. Amicable employer-employee relations, however, must be based on management’s respect for the UNION and respect for employee rights, including the right to grieve, and must never be purchased by sacrificing those rights.
To this end, it is important that the grievance rights be exercised regularly so that management becomes accustomed to having grievances filed and processed. A grievance should not be a “big deal”.
Tensions may increase during the grievance process, especially when affected management personnel are unaccustomed to having their actions questioned or examined. This is the necessary prelude to establishing mutual respect. The ultimate objective of the grievance procedure, however, is to solve problems, not exacerbate conflict.
Thus the grievance procedure is not an appropriate mechanism for revenge or punishment. The UNION never seeks the reprimand or removal of administrative officers as a remedy. Rather, the objective is the restoration, insofar as possible, of the status quo ante and making the grievant whole.
Only the employer – the colleges/universities and the State of New Jersey – has the authority to implement remedies. Therefore, grievances are lodged with the employer, and are not directed against individuals, even though the difficulty may have originated with a particular administrative officer or personnel committee.
Unit members who serve as department chairpersons or members of personnel committees may feel that they are under attack as a result of grievances alleging violations of the contract or college policy in which they may have been involved. They are not. As set forth above, grievances are filed to obtain an appropriate remedy, not to inflict punishment. Unless such persons have been accused by management of misconduct, they have no employment rights at stake. They may be called as witnesses in grievances hearings to establish facts of which they have knowledge, but in no sense are they personally “on trial.” Therefore it is inappropriate for them to have UNION representation.
On the other hand, any employee who is accused by management of misconduct, who is reprimanded by management, or who is deprived of any rights of employment by management for any reason, including participation in an evaluation procedure, is entitled to UNION representation and assistance.
II. Fair Representation
The UNION subscribes to the principles of fair representation and will strictly adhere to them in all aspects of contract administration and grievance processing.
Pursuant to the New Jersey Employer-Employee Relations Act, the UNION is the exclusive representative for collective negotiations concerning the terms and conditions of employment of the faculty, librarians, certain professional staff and adjunct faculty in the State Colleges/Universities. The UNION is entitled by law to act for and negotiate agreements covering all employees in the full-time/part-time units; the UNION has a correlative legal responsibility to represent the interest of all such employees without discrimination and without regard for UNION membership. If a majority representative acts arbitrarily, discriminatorily, or in bad faith, the duty of fair representation is violated. Such violation is an unfair labor practice.
The principles of fair representation can be summarized as follows:
- Each employee has a right to have clear and unquestioned terms of the contract followed and enforced. The rights and benefits guaranteed individual employees under the contract cannot be waived by informal agreements to ignore or change them, nor can a union refuse to follow or enforce the rules and standards that it has negotiated.
- Although a union has the right to settle a grievance involving ambiguous contract language, it has an obligation to apply such a settlement consistently, since settlement of similar grievances on different terms would be discriminatory and would violate the union’s duty to represent all employees equally.
- A union has no duty to process every grievance to arbitration when it has made a good-faith judgment that a grievance is frivolous, trivial or without merit. But the individual employee has a right to equal access to the grievance procedure including the right to arbitration for similar grievances of equal merit.
- Settlement of a grievance or failure to pursue a grievance for improper motives such as personal hostility, political opposition or racial prejudice constitutes bad faith in and of itself. This is so even if the grievance without merit.
- The individual employee has a right to have his or her grievance processed on its merits. Hence the withdrawal or refusal to pursue one individual’s meritorious grievance in exchange for settlement of another individual’s or group’s grievance would violate the duty of fair representation.
- Although a union can properly make a good-faith judgment that an individual’s grievance lacks merit, it has a duty to exercise reasonable care and diligence both in investigating grievances in order to make that judgment and in processing and presenting grievances on behalf of individual employees.
(Adapted from the Duty of Fair Representation by Jean T. McKelvey, New York State School of Industrial and Labor Relations, Cornell University, 1977, pp. 4, 82-83.)
The grievance procedure is not the appropriate forum for processing complaints by an individual employee that the UNION has violated the duty of fair representation or otherwise discriminated against him or her. Such complaints may be filed by the employee as Unfair Labor Practice Charges with the Public Employment Relations Commission.
III. Procedures at Step I
Grievances may be filed by individual employees, by the UNION on behalf of an individual employee, jointly by the UNION and an individual employee or by the UNION on its own behalf.
Employees should consult with a UNION grievance representative or other UNION officer before filing grievances. Such consultation, however, is not mandatory.
Upon request, individual grievants are entitled to UNION assistance in preparing their cases and UNION representation in grievance hearings. In such event, the UNION representative is responsible for the conduct of the hearings, and the UNION reserves the right to decide how the grievance is to be handled. In making such decisions, the UNION representative shall consult with the individual grievant and, insofar as is reasonable and practicable, accommodate the grievant’s wishes.
UNION assistance and representation in grievance hearings does necessarily mean that the UNION agrees with the grievant’s position or is advocating the grievant’s point of view.
UNION assistance and representation may be rendered either by the Local UNION (through grievance representatives, UNION officers, or designated UNION members) or by the COUNCIL through its staff representatives. When individual employees contact the COUNCIL office directly concerning grievance matters, staff representatives are authorized to respond to inquires and requests for assistance and/or refer the matter to the Local UNION. Whenever a staff representative determines that an emergency exists, he or she will make every reasonable effort to contact Local UNION officers before initiating action. COUNCIL staff representatives will make every reasonable effort to keep each Local UNION informed of grievance developments on that Local UNION’s campus.
Individual grievants are entitled to process their grievances on their own behalf, without UNION representation. In such cases, a UNION representative shall be present at the grievance hearing as an observer, but shall not participate.
Individual grievants may retain their own attorneys, who may participate in grievance hearings in the same capacity as the grievant (except that attorneys don’t normally serve as witnesses). The attorney may advise the individual, attend the hearings, and consult with the UNION about the conduct of the hearings. If the UNION is representing the grievant, however, the attorney may not appear on the record or determine the conduct of the hearings. If a grievant elects to forgo UNION representation, the grievant’s attorney may conduct the hearing on the grievant’s behalf.
Pursuant to the decision of the New Jersey Supreme Court in Saginario v. Attorney General, 87 N.J. 480 (1981), if a contractual grievance may substantially and adversely affect an individual employee’s employment interest, the UNION is required to notify the individual of the grievance and the dates of the arbitration hearings. If the employee’s position is in conflict with that of the UNION, then he or she may participate in the hearings either through his or her personal representative or pro se.
The UNION may, on its own behalf, file grievances to enforce the Agreement and protect the rights of employees or the bargaining unit as a whole without the consent of affected employees.
IV. Appeal to Arbitration
The decision as to whether or not to appeal a grievance to arbitration is made by the COUNCIL Grievance Committee, which consists of one representative of each Local UNION, with the COUNCIL staff representatives serving ex-officio.
In making its decision concerning grievances filed by or on behalf of individual employees, the COUNCIL Grievance Committee shall utilize the following criteria:
- Merit. Is there a reasonable likelihood of success in arbitration?
- Significance. Is the grievance frivolous, trivial or otherwise lacking in substance? Is there any tangible benefit to be gained from an arbitrator’s award?
- Precedent. Is the arbitrator’s award likely to set a precedent? What kind? Is there a substantial danger that the arbitrator’s award would set a precedent detrimental to the bargaining unit as a whole?
- Policy. Is an important question of UNION policy involved? Is the position of the grievant clearly inconsistent with established UNION policy or contrary to the UNION’s interpretation of the Agreement?
In evaluating the likelihood of success, the Committee normally gives the grievant the benefit of the doubt when the facts are in dispute. However, the Committee may consider the credibility of the various potential witnesses in making its determination.
In the event that the Grievance Committee of the Council declines to move a grievance to arbitration, the grievant has the right to appeal its decision to the entire Council. The grievant does this by requesting that the Local UNION place his or her appeal on the agenda of the next Council meeting. The grievant has the right to prepare a written appeal giving reasons why the grievant feels the matter should be arbitrated for distribution to the Council members, but may not appear before the Council in person.
If a grievant has been offered a settlement that would provide all the tangible benefits of a favorable arbitrator’s award, and the grievant has refused to accept the settlement, the Committee may determine not to appeal the grievance to arbitration.
V. Arbitration Hearings
Arbitration hearings are proceedings between the State of New Jersey and the COUNCIL conducted pursuant to the Agreement to which the State and the COUNCIL are parties. Individual grievants are not entitled to present their grievances in arbitration proceedings either on their own behalf or through their personal attorneys.
The UNION is represented in arbitration hearings by a staff representative, or, in exceptional circumstances, by a UNION attorney. The UNION staff representative or attorney has full authority to present the UNION’s case on behalf of the grievant and make all necessary judgments concerning the conduct of the hearing. In making such judgments, the staff representative/attorney shall consult with the individual grievant and, insofar as it is reasonable and practicable, accommodate the grievant’s wishes.
Individual grievants may retain their own attorneys, who may advise the individual grievant, attend the hearings, and consult with the UNION about the conduct of the hearings. However, the grievant’s attorney may not appear on the record or determine the conduct of the hearing.
Subject to the approval of the President of the COUNCIL, the COUNCIL staff representative or attorney is authorized to enter into settlements of grievances before or during arbitration hearings. The staff representative/attorney shall make every reasonable effort to obtain settlement terms consistent with the wishes of the individual grievant and the interests of the UNION. If an individual grievant withholds his/her consent from a proposed settlement, the UNION may nonetheless enter into a settlement, provided that the settlement is consistent with the principles of fair representation set forth above.
VI. Legal Representation In Other Forums
The UNION may from time to time determine that it is appropriate to provide individual employees with legal representation in forums other than the grievance procedure. This issue arises most frequently in connection with disciplinary proceedings against tenured and multi-year contract employees pursuant to N.J.S.A. 18A:6-18.
The UNION provides such legal support by making its attorney available to represent the individual employee at no cost to the employee. The employee is the client; the UNION pays the bills. The attorneys have the same obligations to the individual employee that they would have to any other client. Consistent with these obligations, however, the UNION reserves the right to control those legal decisions which impact on the cost of litigation.
Except for the occasional contribution of specific sums on a case-by-case basis, the UNION does not underwrite the expenses incurred by individual employees’ personal attorneys.
Application for legal support is submitted to the President of the COUNCIL for consideration by the COUNCIL on a case-by-case basis. Because an individual employee may proceed with legal action even if the UNION declines to offer support, the UNION has wider latitude in determining whether or not to render assistance than it does in grievance matters, and the UNION is under no legal compulsion to comply with the principles of fair representation. The same criteria used to decide whether to appeal a grievance to arbitration will normally be applied in deciding whether to provide legal support to an individual employee. In addition, the cost of litigation and other relevant factors may be taken into consideration.
Because the New Jersey Division of Civil Rights and the Equal Employment Opportunity Commission under law provide legal representation to individuals when it has been determined that there is probable cause to believe discrimination has occurred, it is not normally appropriate for the UNION to provide legal support for private discrimination suits, nor does the UNION provide legal support to private suits unrelated to the individual employment interests.
The COUNCIL may, at its discretion, provide legal support to employees accused of criminal misconduct if the alleged misconduct is employment-related or connected with UNION activities and if the issues in the case may affect the welfare of the bargaining unit as a whole.
