When a member comes to you with a problem or a complaint, you need to investigate it. Your collective agreement will outline the exact procedure that must be followed – what we present here is a general guide to investigations. Investigations help us determine the facts of the case, help us determine whether or not there is a grievance, and give us an indication about how best to proceed. Grievances must be based on facts.
What is a fact?
A fact comes from:
• Witnesses with first-hand knowledge (this includes the grievor)
• Documents verified by witnesses
• Relevance – it must be directly linked to the issue Hearsay is not fact. Hearsay is second-hand information.
Fran tells Sukhvinder that she saw Trevor put bolts into the machine. Fran’s evidence is first hand (what she saw or heard) – it would be admissible at a hearing. But Sukhvinder’s evidence is hearsay, and would not be admissible, given that he did not hear or see it firsthand.
Hearsay is not accepted because the other side cannot test (through Sukhvinder) whether Fran’s vision / hearing is accurate, or whether her memory is faulty, or whether she has a reason to lie. A thorough investigation will not rely on hearsay.
Tips for investigating workplace problems & grievances
Organize your “tools”. Have a place at work and at home with ready access to what you’ll need to respond to calls for assistance from members in an organized way. Keep a supply of Grievance Fact Sheets and grievance forms on hand, and your collective agreement within reach. If you are not a full time rep know what your collective agreement says about time to meet with a member during working hours.
Use a grievance factsheet. When you are first approached with a possible grievance, record what information you can on a Factsheet. It is a useful tool to help you collect and record the important facts. It is for union use only, and an important part of the file you’ll create.
Set up a grievance file. Number it. Collect and file all relevant documents. Keep everything together in the file folder. Your file is your own investigation. It is different from the grievance form that you give to the employer.
Log it. Record this grievance in your workplace grievance log (usually kept in the union office). Enter new grievances into the log (grievance #, date filed, name of grievor, type of grievance, workplace rep’s name). The log will also include a column for noting the date when the grievance is resolved. The log book is an important central record. The log helps us keep an eye on timelines, and it also ensures that even if the workplace representative is off sick, unelected etc., the chair (keeper of the log) and the Unifor National Staff Representative can know at a glance which grievances are active and which have been resolved.
Interviewing the grievor:
Make the most of the first interview. Choose a quiet, convenient and private place. If possible, set a time when you’re both not rushed.
Listen to what the grievor has to say. Listen to both words and feelings. Encourage the member to talk freely, venting if necessary. A story may change considerably when the worker has blown off some steam.
Get all the facts. Write them down on your fact sheet. Question points you don’t understand, press for all the facts, and discuss potential witnesses.
Make time for listening “first aid”. The person may have a significant emotional investment in the issue. This is particularly true in cases of harassment and serious interpersonal conflict. If this is the case, allow time for venting. When an individual feels understood, an enormous emotional burden is lifted; stress and defensiveness are reduced and clarity increases.
Develop your questioning skills. There are different kinds of questions – “open-ended”, “close-ended”, “greater response”, “feeling-finding” and “mirror questions” – that help you elicit information. Avoid “leading questions” – questions that contain or suggest an answer.
- “Open-ended” questions typically begin with “what”, “how”, “who” or “when”: “Why did you respond in that way?” “What exactly did he say?” “When did you first become aware of it?” “What do you think should be done now?”
- “Close-ended” questions usually require a “yes” or “no” response: “Did you say management responded in writing?”
- A “greater response” question is an adaptation of the “open-ended” question to draw out additional information. Key words include “describe”, “explain”, “tell”, “elaborate” and “provide”: “Describe the location where this took place.” “Tell me what happened next.” “Can you elaborate on that point?” “Can you provide more details on what took place at the meeting?”
- “Feeling-finding” questions ask for subjective information that gets at a person’s opinions, attitudes, values, beliefs or emotions. They typically use words like “think” and “feel”: “How did you feel about that?” “Why do you think she said that?”
- “Feedback and clarification” questions are used to clarify information. They can also serve to draw out additional information. Try to mirror the exact words used by the person to avoid turning it into a leading question. “When you said ‘everyone participated in the meeting’, what did you mean by that?”
- Avoid “leading questions”. A leading question suggests its own answer or can prejudicially influence a person’s response. For example, “What colour hat was he wearing?” suggests the person was wearing a hat when perhaps s/he was wearing a hooded jacket. Instead of “Most people would have been upset by that remark. Were you?” try “How did you react to that remark?”
Get to the source of the member’s concerns. There may be “layers” of a problem or more than one distinct problem requiring more than one solution and way to achieve it. Providing the member with the time and space to share information and express emotions should give you what you need to identify the problem(s). However, recognize that in some cases, the problem may not be clear until additional fact gathering and research have been carried out.
Ask for the story in writing. Ask the member to write out the full story as soon after the event as possible. Suggest that it be organized chronologically with exact names, job titles, dates, times and places. Ask that actual quotes be used to relate things s/he heard or was told, to the best of her/his recollection. Maybe the tone is also important, or how s/he felt at the time. Recording information in this way will help the person organize her/his thoughts and it will be useful for refreshing their memory (and yours) at later meetings/ arbitration. These notes will not be provided to the employer during the grievance procedure – though they may be used at arbitration as long as they were made at or about the time of the events in question. Be sure the grievor signs and dates their written notes. In the case of a continuing grievance, advise the member to keep a diary of events, signing and dating each entry.
Note: not all of our members have the ability to capture issues in writing. Or they may prefer to write their notes in their first language, rather than English or French. In either case you can offer to scribe for them (you write down their exact words), read it back to them, and get their signature indicating that this is their recollection of the events.
Record all contact with the complainant. Generally, this is a good practice as it provides a written record of verbal and written communications to help maintain focus on important details concerning the case. It also provides an important timeline of the investigation process itself. Devise a system for recording the date and a summary of each conversation. It will become especially important if a decision is made not to proceed with a grievance or not to provide representation at some point. It will be an important record if a member complains that s/he has not been fairly represented.
Planning the investigation:
Determine when time limits start. Your collective agreement outlines the timelines that a grievance be filed. You should ensure that a grievance is filed within the time limits specified to avoid an objection concerning timeliness.
Plan and organize the investigation. List what information you need and identify possible source(s). Determine how and when you are going to gather what you need. Writing it all down will help you approach what needs to be done in an organized way. Keep revising the plan as new information becomes available. Look for your best evidence. For example, an original receipt for registered mail is better than a statement from someone who describes his or her recollection of it.
Have an organized approach to gathering the facts. This is not as easy as it sounds. Real documentation is often not available. Sometimes, people forget important details, withhold pieces of information, interpret facts in a way that suits them or allow emotions to cloud their thoughts. That’s why it is so important to dig, check for all angles, re-check, and ask questions. The tried-and-tested “who”, “what”, “where”, “when”, “why”, “want” and “whoa” is a good model to use. Try to gather assemble your evidence on this basis.
Stay within the time limits. A good grievance can be lost by missing a time limit. Get to know the grievance procedure inside out. The collective agreement will outline the procedure. Strictly observe the time limits. Get any extensions in writing. If for some reason a time limit is missed, determine the cause for the delay but don’t abandon the grievance. The employer may not object and under certain conditions, arbitrators have the power to extend time limits. Usually, if the employer or the union fails to object to a missed time limit, it is considered that the party waived that right.
Determine whether this is an individual, group or union/policy grievance (check your collective agreement). Where an individual matter is involved – and especially where individual relief is sought – an individual grievance is filed. A group grievance is filed in instances where a group of employees have been affected in the same way and usually seek the same redress. Policy or union grievances involve matters of general policy or of general application of the collective agreement affecting the union as a whole, or where an obligation owing specifically to the union has not been fulfilled.
Review your reference tools. The type of problem will determine what facts you need to gather. There may be specific tools you need (for example, the Unifor Pocket Guide on Investigating and Resolving Workplace Harassment).
Investigate promptly. Investigate before memories fade or witnesses disappear. Also, when people are involved in a highly charged emotional confrontation, their recollection of facts may be less than reliable. There is a tendency to overlook one’s own errors and place oneself in a favourable light. Over time, positions may harden, with each person becoming increasingly convinced of the accuracy of his or her point of view. Therefore, it is important to interview people and acquire statements or take notes early in the investigation process.
Identify affected parties. There may be people whose situation could be affected by the outcome of a grievance. For example, another member of the union might have benefited from the way the employer distributed overtime or made a staffing decision. It will be important to explain the rationale for the grievance, listen to their concerns, keep them informed and generally not treat them as the “enemy” just because they enjoy the rewards of a management decision. As much as possible, consider ways to work out a settlement that addresses their situation as well.
Get the story in pictures. Look beyond paper evidence. Take pictures, create diagrams, get a google map. This can be useful to demonstrate size and location of furniture or space, condition of materials or equipment, distances and measurements, or state of roads and highway conditions. Ensure that the photographer or author signs and dates each item. These kinds of ‘props’ help everyone on the union side to ‘see’ the events described.
During the investigation:
Involve the member. Involve the member in the process – gathering facts, drafting the grievance, participating in meetings. If confidentiality is not an issue, look for ways to involve others who are similarly affected. It makes them better union members and helps strengthen the union in the process.
Integrate the “organizing model”. Make the organizing model a consistent thread in grievance handling. It is an approach to union work that puts membership involvement at the centre of each union activity. It utilizes the knowledge and expertise of union resources but puts real power in the hands of the members. It means giving members opportunities and support to do things for themselves. We continue to “service” the members by offering advice, handling grievances and providing representation, but service has to be an organizing activity.
Stay objective. Gather all relevant facts and evidence. It is just as important to gather those facts/evidence that hurt the case as it is to gather those that help. When in doubt, get advice. Talk to other stewards or committeepersons and with your local union to find out if there have been other grievances like this one. If discipline (a letter of warning or a suspension) was issued, was it the same for similar offenses? Be sure you are reading the agreement correctly and only then go ahead.
Adopt a learning stance. You aren’t expected to have immediate answers but members should be able to expect that you’ll do your best to talk with others and get back to them with answers. Treat every opportunity as one that enables you to learn and practice your skills.
Talk to other workers in the area who may have knowledge of what happened. Interview any witnesses who might have seen or heard anything related to the event or issue. Conduct your interviews as soon after the event as possible.
Interview witnesses separately. Interview witnesses separately so one person’s recollection or perspective isn’t tainted by that of another person.
Collect statements from witnesses. Interview each person before asking for a written statement. Your interview questions will help that person focus on the type and detail of the information you are seeking. If the witness is reluctant to make a written statement, make one for them and confirm that it is what actually happened. Have them sign it.
Interview both supportive and non-supportive witnesses. You need the whole picture, or one as complete as you can get. Surprises will not help your case or your credibility. Focus on remaining objective, gathering information that both helps and hurts your case.
Don’t settle for hearsay information. If someone says, “Jean told me…,” talk to Jean. At arbitration, hearsay evidence is generally not admissible, or is given little weight.
Getting all sides to the story:
Get the employer’s version. The employer must make any related facts and documents available to you. Talk to the supervisor. Get an understanding of where the employer is coming from. What does the employer know that you don’t? Does management have a detailed rationale? Are they trying to be firm on a broad point of principle, or just automatically backing a manager who might be in the wrong? What case law are they relying on?
a. Obtain as much detail on the employer’s version of events or management’s position on the issue. Gather factual particulars by interviewing supervisors. Obtain documentation or citations from human resources.
b. You may find a way of resolving the problem without having to file a grievance but if not, be as rigorous in documenting and analyzing the employer’s position as your own. This will give you a good idea of what you’re up against and what case you have to meet. It will help you narrow down the facts and arguments likely to be advanced, and allow you to plan accordingly.
c. During all meetings with management, take notes and sign and date them. Remember to record details such as meeting location, date, time and names and positions of those in attendance.
Research the law. Check the case law. Ask your chief steward, chairperson, or national rep for help. Look for decisions on grievances dealing with a similar issue or collective agreement language. If past decisions (called case law) are favourable, bringing this information to management’s attention may get the problem resolved without a grievance. See the section in this Pocket Guide on Researching Arbitration Cases.