Alaska Public Employees Association/AFT Web Site

CONTRACT VIOLATIONS

 As an Employee Representative, you are the front line person responsible for making sure that management abides by the negotiated terms of the collective bargaining agreement. In order to do so, you must be familiar with the contract and how it is interpreted, with management=s written and unwritten policies and procedures, and how management actually applies all of these elements on a day to day basis.

INTERPRETING THE AGREEMENT

PAST PRACTICE

UNJUST TREATMENT

WORKING CONDITIONS SAFETY, HEALTH, SANITATION

 

 

INTERPRETING THE

AGREEMENT

When management and labor sit down to negotiate a contract, they attempt to anticipate the various problems and operational concerns that are likely to arise during the term of the agreement. In doing so, both parties fashion language that they believe they understand and have adequately explained to the other party. However, situations arise that neither party can anticipate or, language that seems clear at the table is no longer as black and white when applied to the actual work environment. When this occurrs, a work place dispute is likely. In order to determine whether or not a grievance should be filed, it is helpful to understand the general rules of contract construction.

When determining the appropriate interpretation of a contract, an arbitrator will look first at the applicable contrac language. If the arbitrator finds that the language is clearly stated, the arbitrator will make a decision from that language. However, if the language is ambiguous, or could be interpreted in more than one manner, the arbitrator will look to other means to fashion a decision.

 

PAST PRACTICE

When contract language is unclear or ambiguous or, when the contract is silent on a particular issue, generally, past practice prevails.

Simply put, past practice is defined as the accepted way that the parties conduct themselves in regards to particular issues in the workplace. When management unilaterally changes a past practices, the union may be able to grieve the action.

If the union raises a past practice argument, it is the union=s obligation to prove it. When trying to determine if there has been a past practice, all the following steps must be met.

1.

In addition to the areas we just discussed, there are other topics which may generate grievances.

 

UNJUST TREATMENT

Grievances alleging unjust treatment are complaints against supervisors. Sometimes it is claimed that they are playing favorites -- discriminating against some workers in favor of others, for instance. A subordinate may claim that they are giving contradictory or impossible orders, are violating rules, or are harassing the workers they supervise.

Two elements commonly found in these grievances make them difficult to resolve:

1. It's often next to impossible to prove a case beyond any doubt. The grievance cannot be tied clearly to the contract or to the law, and the motivation for the behavior is hard to pin down.

2. Because they involve the behavior or "style" of an individual, it can be difficult to win permanent improvements, even though a particular situation might be corrected for awhile. The adage that "you can't change human nature" is sometimes true in these cases, as is the one about teaching an old dog new tricks.

What you want to look for are hard facts that demonstrate a clear pattern of discrimination or favoritism. If a worker the supervisor doesn't like is always passed over for overtime, you may be able to demonstrate this by pointing to the records. In other cases, you may be able to find witnesses to testify to statements the supervisor has made about why he is picking on certain workers. Job assignments are sometimes recorded on paper., If you can show that certain individuals are always wrongfully assigned to the same undesirable jobs, you may be able to build a case. You should also consider the arguments that management might make to justify its job assignment practices.

While supervision grievances are often difficult to handle, they can be very important for you as an Employee Representative and for the Association. When you allow one group of workers to be favored over another, you are assisting in the destruction of the solidarity the Association needs to do its job of effectively representing all members.

These grievances may tax all your talents

 

WORKING CONDITIONS

SAFETY, HEALTH, SANITATION

In the broadest sense of the term, "working conditions" includes anything within the worksite that affects the worker's job performance. Here we are talking about conditions in the narrower usage -- physical working conditions such as cleanliness, health and safety.

You can get into a lot of variations on these grievances. As with other types, you have to decide first if the problem is a minor or serious one, or whether there really is a problem at all. Then you have to determine whether there is a possible solution. These are generally collective or unifying issues, as opposed to divisive ones. One group's gain isn't another's loss, it's a gain for all workers.

However, some working conditions grievances may be divisive. As you well know, for example, people can argue about the temperature in a room. In these cases there is no way to arrive at a "correct" solution. Who's to say when another person feels comfortable? While there may be a problem with room temperature, you may find that you have to look behind the stated complaint for the real source of the problem. For instance, two people working side-by-side may be unable to get along. Instead of stating the real concern, one worker may use the temperature as an excuse to continue the hostilities. You must be aware that these situations arise, and that by attacking the apparent problem you might be missing the real solution.

Most cases aren't clear-cut. They require investigation and good judgment. Get answers to the following questions before you take action:

1. What is the time, duration, and location of the alleged violation? Exactly what jobs are involved?

2. What are the likely and possible consequences of the condition if left uncorrected? Can you cite past situations that have resulted in accidents?

3. Are the workers involved aware of the seriousness of the conditions? Do you have an educational job to do?

4. What are the controlling regulations? Are there applicable contract clauses? What about OSHA rulings, etc.?

 


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Last updated on November 29, 1999