On the basis of the investigation, the steward or committee (or Chairperson in some cases) will make a decision whether or not the problem is grievable and on what grounds.
Most collective agreements require that the union give the employer the opportunity to resolve an issue before it becomes a grievance. This is expressed in many collective agreements as a requirement that the employee take the matter up with their immediate supervisor, along with a steward if desired. Other collective agreements require a written grievance right from step one of the grievance procedure. Remember to always review the language in your own collective agreement.
It is wise at the first stage to take the issue up verbally with the supervisor, even if the contract says the grievance must be submitted in writing at this step. Your chances of achieving a settlement are far better if you give management an opportunity to correct the problem and back down gracefully. You can always submit the grievance in writing if you have to. That’s the easy part. The hard part is getting a settlement.
The point of your first meeting with management is not to prove who is the cleverest person. The point is to get a settlement which is satisfactory to the union and to the grievor.
The following information applies to any meeting you have with an employer representative to resolve a problem.
Tips for meetings with employers
Before you meet:
- Completely research the case. Do you have all the facts? Do you know the case?
- Consult with others in the union – do they see something you may have missed?
- Decide which facts to present.
- Know what will satisfy the member that does not violate the contract or leave other workers worse off.
Preparing the member for a grievance meeting
- It is generally good practice to have grievors attend their grievance meetings. Some collective agreements spell out what parts of the process the grievor is directly involved in. If the grievor will be attending the grievance meeting, make sure you meet beforehand.
- Prepare the grievor so s/he will know what to expect. Describe the setting, who will be there, how the case will be presented.
- Go over the facts and arguments with the grievor. Outline the key arguments, with the facts and case law in support. Outline management’s anticipated arguments and questions, and discuss how to best respond to each of these.
- Decide in advance what role the member with the grievance will play at the meeting (will they silently watch, passing notes if necessary or will they participate more actively in the meeting?). Review what the grievor will or will not say during the meeting. If they have the skills to take notes, ask them to do so as well, then both of you will have a record of the meeting.
- Make sure the grievor knows that you are there to speak for them and for the union.
- Some union representatives organize a rehearsal or role play of the meeting with the grievor.
- Be sure the grievor understands the importance of not arguing in front of management. If either you or the member disagrees with anything that the other says during the meeting agree in advance that you will call for a short break and work out your differences in private.
What to say at the meeting
- Go over the facts of the case you have decided to present.
- If it isn’t obvious, say why the issue/situation is a problem.
- Be specific and to the point. Don’t speak in generalities. A statement that the employer is always breaking safety rules, for example, is weak. Specify dates and locations. Present evidence like a doctor’s certificate or the employer’s own records if they are available and if they support your case.
- Tell the manager how the member would like to see the problem resolved.
- Use the phrase “We the union” (not ‘I’).
- Don’t try to prove that the employer has done wrong. Make them prove that what they’ve done is right.
- Stop talking when you have made your point.
How to say it
- Keep calm and low key.
- Start out by pressing facts and evidence that management will agree with.
- Argue on the basis of the facts and stick to them. Don’t get involved in side arguments. When this happens, switch the conversation back to the grievance.
- Do not get sucked into a debate about contract interpretation. Your job is to find out how the person you are meeting with interprets the relevant clauses of the contract. Say that you are there to see if the problem can be resolved, not to debate how an arbitrator will interpret the contract.
- Don’t rush or feel pressured by any silences. Take time to read and take notes as needed. Silence while doing this is okay. In fact, you may need to request silence so that you can take notes (this request can be a powerful tool).
- Avoid personality conflicts. Do not provoke or ridicule the employer. You are there to work something out, not to score points.
- Do not lose your temper. Avoid shouting and table pounding. Many times supervisors will be deliberately insulting in the hope of provoking you into some rash act.
- Create a climate of mutual respect and avoid making threats.
- Be firm and courteous. Don’t be timid and apologetic. Show respect but demand equal respect.
- Don’t fall for back-slapping.
- Do not get involved in discussions of personal issues.
- If another union representative is helping you negotiate, and/or if the grievor is present, stick together and don’t argue with each other. If you have differences, ask for a recess and settle them among yourselves.
- Don’t take the process personally. You are there to give the union’s position on the matter and to advocate on behalf of the grievor. The employer representatives are there to speak for the employer.
- State the facts as you see them. Advance arguments, supported by the facts and case law. Use formal language like, “It is the union’s position that…”. Avoid any rhetoric about fairness, or discrimination, unless those words are used in the relevant provision of the collective agreement. Unsubstantiated statements don’t help your case.
What to listen for
- Factual information that you don’t know or information that conflicts with your understanding of what happened.
- Any indication of what the manager is prepared to do.
- Let the employer make their own case (do not make it for them!)
- If this is a disciplinary case, the burden of proof is on the employer. They must produce facts strong enough to contradict or disprove the facts that support the grievor. If the employer has “evidence” (for example, photographs, video, medical reports, statements, etc.) ask for a copy now. If they don’t produce a copy, after the meeting write to them (on letterhead – not by email) requesting a copy.
- If you know you are not going to resolve the grievance at this meeting try and gather as much information from the employer as possible.
- To best analyze the facts, talk less and listen carefully. Never pass up the opportunity to keep your mouth shut.
Caucus if you need to
- A caucus is a break during which time the two parties go to separate rooms to discuss something among themselves. A request for a break (caucus) may be made by either union or management at any point during the meeting.
- A caucus is usually sought when serious or previously unknown facts are discovered, or when an opportunity to think and regroup is needed, or when you have exhausted a line of argument and think it might sink in better if management were to go and have a caucus of their own.
- A caucus should also be called if you sense there is a difference of opinion (e.g., between a union representative and a grievor) or when you need to discuss a settlement proposal.
Finding a resolve
- Do not let anyone side-track you. Stick to the question in dispute.
- Avoid tit-for-tat bargaining on grievances.
- Drive for an immediate settlement if you can get exactly what you asked for. A delay may give management second thoughts.
- If the resolution you propose isn’t accepted, ask what the employer is prepared to do to resolve the situation.
- If they offer less than what you ask for, don’t immediately agree. Tell the employer that “the union will respond”.
- If the employer says they will get back to you – ask them when they will give you an answer in writing. Remind them of the time limits in the collective agreement. Guard against stalling tactics.
- Once you have a resolve, don’t move on to the next grievance, until you have settled and signed off a written resolution of the first one.
Prepare for the end of the meeting
- In your preparation, make some notes that will help you bring closure to the meeting. It may be as simple as identifying the deadline date for the employer’s response and considering whether or not you’re open to extending the time limit.
- During the meeting, include in your notes the details of any agreements that represent a resolution, in whole or in part.
- As part of bringing closure to the meeting, summarize what you understand to be the points of agreement or better still, have the parties commit them to paper.
- Identify next steps, noting time frames and commitments.
- Stick to your plan! If you get stuck – say you’ll carry on the discussion at another time (and do so).
- Keep a diary of all meetings that take place. Record the date, time and location of your meetings and who was there.
- Keep careful notes of what the employer says. Write down any facts of the case or information that might be useful.
- Keep notes on what if anything the employer indicates they are prepared to do to resolve the problem.
- These notes cannot be subpoenaed as they deal with attempts to resolve the grievance.
- Write down any commitments the employer makes. Put your notes in the grievance file!
After the Meeting
- Go back over the meeting to see if it went the way you thought it would and if you learned anything about the case that you didn’t already know.
- Investigate new facts, look for additional evidence.
- Be sure everything that happened is written down; management’s facts, your observations.
- If you got the resolve you were looking for, follow up to make sure management makes good on their commitments – don’t assume this will happen.
- If the manager offered a different resolve, ask the member how they feel about the offer and if they would like to propose another solution in light of what the supervisor said.
- If the outcome was not satisfactory, work out what to do next in light of what came up at the meeting.
- Don’t let the supervisor go behind your back to deal with the member.
- Follow-up with the member – keep them in the loop, don’t leave them wondering.
- Keep the file up to date with the terms of settlement or the employer’s response and your notes from the meeting.
- If the grievance is to go to the next level, do so within the time limits. Keep the grievor updated.
- If the employer said they would provide you with documents follow up with them – in writing (on letterhead) if necessary.