Home Legal News Daniel J. Leffler The Grievance and Arbitration Process - Part I

The Grievance and Arbitration Process - Part I


Generally speaking, Collective Bargaining Agreements (CBA) define a grievance as a misinterpretation or misapplication of the specific terms of the CBA.  Although through time, the arbitration process and arbitrators have developed a broader range of potential claims under the CBA, such as past practice and reliance on external laws, those topics are not covered by this Article.  Grievances are not complaints about a supervisor or a negative action taken by the employer that affects the employee.  Often times, employees are confused about why no grievance was filed or a grievance, if filed, was not advanced to arbitration.  The reasons are numerous and vary from case to case, but this article in intended to give employees some historical background about the grievance process and hopefully give some insight as to how cases are evaluated.

Prior to collective bargaining, the private sector workplace was governed by the at-will doctrine.  Essentially, employees worked “at the will of the employer” so long as the employer’s actions didn’t violate a law or weren’t taken for discriminatory purposes.  Under the master-servant relationship, the employer had every right to determine the employees wage, terms of employment, work schedule, and ultimately whether to terminate the employee for any or no reason.  When the parties to a CBA talk about “management rights,” those rights include every possible action that the employer could historically and legally take.  From a historical perspective, the Federal labor laws in the early twentieth century, such as the Railway Labor Act (1926)[2], the Davis-Bacon Act (1931)[3], the Wagner Act (1935)[4] and the Fair Labor Standards Act (FLSA) (1938)[5], began to limit the employer’s ability to act in certain ways.  Although the FLSA set a minimum wage and a maximum hours limit before the employer had to pay an overtime rate, there were little restrictions on the employer’s actions.  In fact, until the 1930s, employers could require employees to enter into a yellow-dog contract.  A yellow-dog contract (a yellow-dog clause of a contract, or an ironclad oath) was an agreement between an employer and an employee in which the employee agreed, as a condition of employment, not to be a member of a labor union.  In the United States, these contracts were widely used by employers to prevent the formation of unions

While collective bargaining agreements have existed since the 19th century, disputes often ended in violent and deadly battles.  The Homestead Strike was an industrial lockout and strike which began on June 30, 1892, at the Homestead Steel Works in the Pittsburgh area town of Homestead, Pennsylvania, between the Amalgamated Association of Iron and Steel Workers and the Carnegie Steel Company.  The strike resulted in 3 management agents and 7 workers being killed.  None of the management agents were even charged with crimes while all the employees were charged with crimes, resulting in one employee being convicted.  With the expansion of Federal labor laws in the 1930s, the grievance and arbitration process was a means to peacefully resolve differences.

“Since the 1960s, the tremendous growth of employee organization and collective bargaining in the public sector has been accompanied by the rapidly expanding use of arbitration for public employee disputes.  This development has been particularly important because federal and state employees continue to be restricted by the traditional prohibition against strikes by public employees. Neutral dispute settlement machinery is essential in the public sector if organizational and bargaining rights are to have any real substance.” Elkouri and Elkouri, How Arbitration Works, 5th Ed., p. 14.

With the advent of formal collective bargaining in Ohio in 1984, public employees could negotiate and implement the terms and conditions of their employment and some designated classifications were prohibited from striking to resolve the negotiation process.  The negotiated terms and conditions of employment contained in the CBA are a direct limit on and exception to the traditional management rights.  In addition to defining wages and benefits, the “Just Cause” standard is one of the most important, and often taken for granted, aspects of the CBA.  Under a CBA, management retains the right to take all lawful action, except where the CBA specifically requires or prohibits management action.

Two of the more common examples include scheduling and disciplinary action.  In the absence of language in the CBA related to work schedules, in general, the employer is permitted to schedule employees or modify an employee’s schedule as they deem fit.  In the case of an employer modifying an employee’s schedule with little or no notice, while objectionable to the employee and the Union, the action may not be grievable as a violation of the CBA.  Conversely, under the just cause provision related to discipline, the employer is now prohibited from disciplining an employee for no reason.  The Employer is required to prove a justifiable reason for discipline and that the level of discipline is appropriate for the alleged conduct.

So in evaluating whether a grievance exists or determining the merits of a grievance, the single most important question is “What does the CBA say about the subject?”  If the subject of the grievance is contained in the CBA, a grievance exists if management misapplies the provision.  If the subject is not covered in the CBA, a grievance will likely not exist.


[1] Future articles will discuss the interpretation of CBA language and the arbitration process.

[2] The Railway Labor Act required employers to bargain collectively and prohibited discrimination against unions. It applied originally to interstate railroads and their related undertakings.

[3] Congress passed the Davis-Bacon Act, requiring that contracts for construction entered into by the Federal Government specify the minimum wages to be paid to persons employed under those contracts.

[4] The NLRA was applicable to all firms and employees in activities affecting interstate commerce with the exception of agricultural laborers, government employees, and those persons subject to the Railway Labor Act. It guaranteed covered workers the right to organize and join labor movements, to choose representatives and bargain collectively, and to strike.

Employers were forbidden by the Act from engaging in any of the five categories of unfair labor practices. Violation of this prohibition could result in the filing of a complaint with the NLRB by a union or employees. After investigation, the NLRB could order the cessation of such practices, reinstatement of a person fired for union activities, the provision of back pay, restoration of seniority, benefits, etc. An NLRB order issued in response to an unfair labor practice complaint was made enforceable by the Federal courts.

The NLRA included no provisions defining or prohibiting as unfair any labor practices by unions. The Act served to spur growth of U.S. unionism -- from 3,584,000 union members in 1935 to 10,201,000 by 1941, the eve of World War II. The 1941 figure represented more than 25 percent of the nonagricultural workforce in the U.S. Congressional Digest, June-July, 1993.

[5] Known as the wage-hour law, this 1938 Act established minimum wages and maximum hours for all workers engaged in covered "interstate commerce."

Last Updated (Thursday, 13 June 2013 19:54)