One of the most important tasks any union may undertake is filing a grievance on behalf of a member. And if the union is fortunate enough to possess a clause in its labor contract guaranteeing binding arbitration as the final step of the grievance process, that task becomes all the more critical insofar as an arbitration decision will determine what for all intents and purposes is to become the “law of the workplace.”
While the grievance process may seem relatively straightforward, there exists some confusion over what precisely makes for a potentially successful grievance. First off, a grievance is not simply an employee’s feeling upset or aggrieved by something the employer did or didn’t do. But for the existence of a collective bargaining agreement (what we call in the public sector a Memorandum of Understanding or MOU) with its attendant grievance procedure, there would be no right to any grievance in the first instance. So a grievance is necessarily defined as a violation of some provision(s) of the MOU. No violation of the MOU, no grievance.
So let’s assume for the purpose of this discussion that we have an articulable violation of some MOU provision which warrants the filing of a grievance. If the parties are then unable to resolve the grievance as it proceeds through the various steps of the grievance procedure, the union – and only the union – may elect to take the grievance to final and binding arbitration. This sort of arbitration is known as “rights arbitration,” meaning that a neutral arbitrator will be called upon to determine whether the employer has violated some right guaranteed by the MOU. After testimony and evidence are considered in a quasi-judicial proceeding (and often followed by post-hearing legal briefs), the arbitrator issues a final opinion and award.
To be sure, other instances may arise where a member or the union alleges that the employer has violated what is known as a “term or condition of employment” but which, for whatever reason, fail to appear in the MOU. In common parlance, these are called changes to an agreed-upon “past practice.” Disputes over what might constitute a legally enforceable past practice are some of the most contentious given the absence of any express agreement between the parties. In addition and for a number of legal reasons too lengthy to explain in this abbreviated “primer,” most attempts by the City and County of San Francisco to change past practices will result not in “rights” arbitration but, rather, in “interest arbitration” – if again, the parties fail to reach an agreement. This has to do largely with the fact that under most public employee MOUs in San Francisco, changes to past practices warrant not a grievance but a demand to meet and confer over changes to the “terms and conditions of employment.”
Only a handful of charter cities in California possess interest arbitration, and San Francisco is one of the lucky few. Unlike most other public safety employees who, possessing neither the right to strike nor interest arbitration may face the unilateral imposition of their respective public employer’s last-best offer after negotiations reach impasse, San Francisco’s finest can proceed to an arbitration panel to set the new “terms and conditions” of employment if their negotiations break down. In interest arbitration, each side, both management and labor, present testimony and evidence to an interest arbitration panel in support of their respective last-best offers. Utilizing a number of criteria set forth in the City Charter, the arbitration panel will then choose that last-best offer which most conforms to the criteria. This tends to boil down to the following: that side which presents the most objectively reasonable proposal wins while that party which overreaches loses. Interest arbitration, thus, has woven into its fiber a strong incentive for each party to come as close to the middle as possible of any controversy which divides them.
And, thus, here one should take note of the rather dramatic difference between “interest” arbitration, which attends disputes over changes to past practice, and “rights” arbitration which is the endgame of grievances where an out-and-out MOU violation is alleged. Victory in a “rights” arbitration turns upon whether the union proves the contract was in fact breached. Victory in “interest” arbitration turns upon which party is more reasonable in its final negotiation proposal. While compromise may (at times) be out of place in the context of a “rights” arbitration where forceful vindication of a grievant’s rights is in order, compromise is more often than not the essence of success in an interest arbitration. Understanding this crucial difference between a grievance that results in rights arbitration and a meet-and-confer demand over changes to past practice that culminates in interest arbitration makes all the difference in the world as to whether a public sector union achieves its aims on behalf of the rank and file.
“Roll the Union On . . .”
