There is no more important function to our union than the proper handling of time claims and grievances. To successfully prevail in the handling of claims and grievances, there must be solid facts and data that not only explain the violation but also contain information that will support the union's position. This information can only be developed by the Local Chairperson.
Many instances occur where a General Chairperson will receive a file on a claim or grievance from the Local Chairperson, which lacks sufficient information and data to support the union's position. Both the Local Chairperson and the General Chairperson may be fully convinced an actual violation occurred, but somewhere in the process of the handling on the local level, there was not sufficient information developed. This places the General Chairperson and the union in a no-win situation.
If the General Chairperson progresses the violation to arbitration without sufficient data, he/she no doubt will receive a denial award. If the denial award only affected the one claim or grievance, the situation would not be so serious. However, in most situations, a denial award could have the effect of losing an important provision in the collective bargaining agreement. If the provision was part of a system agreement, it could result in an adverse effect on the members working under the contract on the railroad. If it was a provision under a national agreement, it could have an adverse effect on our entire membership subject to the national agreement.
Why Violations Occur and Grievances Are Filed
Many contract violations occur as a result of an oversight or complete disregard by a local carrier officer of the provisions in the collective bargaining agreement. Others occur because of greed of the carrier and/or its dislike of a certain provision in the contract, especially if an arbitrary is involved. In these types of situations, the carrier will try to drag out the process as long as possible for several reasons. If the carrier has any feasible argument whatsoever in favor of its position, the longer they drag out the dispute, the more likely the members will become discouraged and tired of submitting time claims for the violations. In the meantime, each time a member fails to file a time claim, that is money in the carrier's pocket if the carrier is eventually found to be in violation of the agreement. The carrier can also create discontent among the members toward the union for taking so long to resolve the dispute.
Many members think the purpose of filing a time claim is simply to increase their earnings. This is not so. A grievance is filed for the purpose of enforcing the collective bargaining agreement.
If one goes back into railroad labor history, we find railroad employees in the late 1800s engaged in bitter struggles to obtain agreements that would prevent the railroads from acting in an arbitrary and capricious manner. The employees sought elimination of favoritism in the assignment of workers and eventually established the seniority principle in the railroad industry. Similarly, to protect craft rights, the employees fought for and obtained a scope rule. Railroad employees of today have a responsibility to maintain these principles. Thus, when a carrier violates the seniority or scope rules, for example, the railroad employees have an obligation to file a time claim not for the purpose of increasing take-home pay, but rather for the purpose of enforcing their rights under the contract. And the penalty should be severe enough so as to make it unprofitable for the carrier to repeat the violation.
Essentially, then, the grievance is filed to enforce the contract. And enforcement of the contract is not only for your benefit, but also for the benefit of your fellow union members.
Knowledge of Schedule Agreements
It is extremely important that the Local Chairperson be knowledgeable of the collective bargaining agreements his/her membership is working under. Carriers will often test new Local Chairpersons in order to determine how knowledgeable they are concerning applicable agreements.
If the carrier officers find a Local Chairperson who does not fulfill his/her obligations, they will take advantage of them. They will intentionally violate the provisions of the agreements. The longer such violations occur unchallenged, the more damage is done to future attempts to police the agreement with respect to identical or similar violations of the agreements. The carrier will build a record relative to the application or practice of applying the agreement. Over time, the carrier will expand its application to other districts on the system. When time claims or grievances are progressed the carrier will then take a position "past practice" prevails.
The collective bargaining agreement encompasses much more than the printed agreement book. Many documents have application to the rates of pay, rules and working conditions of the members. For example:
Since the schedule agreement book was last printed, it is possible additional Memoranda of Understanding have been entered into between the General Committee of Adjustment and the carrier.
At times, agreements covering certain local conditions exist. These, too, are part of the overall collective bargaining agreement.
National agreements frequently contain clauses which modify or add to the agreements covering the system, and these clauses are also part of the contract.
From time to time disputes committees, established pursuant to national agreements, are given the responsibility to interpret these national agreements. Their interpretations have the same effect as an agreement.
The Washington Job Protection Agreement of 1936, which covers rail consolidations not covered by the Interstate Commerce Act, is also used to protect employees '' adversely affected because of such consolidations.
When discussing grievance handling, it is important to recognize there are different types of grievances. In general terms, any complaint from the members pertaining to the rates of pay, rules and working conditions is commonly referred to as a grievance. Any grievance arising from application of specific provisions of the collective bargaining agreement generally is handled through the time claim procedure mandated by the schedule labor agreement or practice in effect on your property. Complaints arising from the provisions of the law, such as the Hours of Service Act or Interstate Commerce Act, are also grievances, but must be handled in a different method simply because their foundation lies in legal regulation, not in the collective bargaining agreement. In most cases these types of grievances must be enforced by the regulatory agency having jurisdiction and remain outside the scope of the time claim procedures and adjudication pursuant to the Railway Labor Act.
There will be many times that a member will approach the Local Chairperson about a contract violation or grievance that the Local Chairperson does not have the answer to. Be honeSt with the member. Advise the member you will investigate the matter and get back to him/ her with the answer. Then follow through. If you cannot find the answer to the member's question, consult with your General Chairperson for his/her expertise. The worst thing to do is to tell the member what he or she wants to hear. Be honest with the member.
The most respected Local Chairperson, by both the membership and the carrier, is the Local Chairperson who is knowledgeable of the agreement and handles time claims and grievances with merit and factual information to support them. To handle claims lacking merit or insufficient information sends the wrong message to the membership and carrier alike. The members will be given false hope thinking the claim or grievance will produce satisfactory results, when in fact, it will not. Additionally, handling claims with no merit bogs down the grievance system, creating unnecessary work for both the Local Chairperson and the General Chairperson.
Time Claims (5 Important W's)
As previously stated, probably the most essential element in the handling of a grievance is getting the facts.
In the handling of time claims, the claim should contain the specific facts involved in the grievance as well as reference to the specific rule which allegedly has been violated. Such facts include what actually happened, the date of the occurrence, the yard or run involved, the engine number, train number, etc.
Remember the Five W's:
Who is involved in the claim or grievance? Name(s) of person(s) involved. Anyone who can furnish information concerning the claim or grievance. (Don't forget the supervisor or management representative who might have caused the claim or grievance.)
When did the claim or grievance occur? On what day and at what time did the act or omission take place that created the claim or grievance?
Where did this occur? Exact location-milepost number, yard, industrial track, terminal, etc.
Why is this a claim or grievance? What has been violated? Agreements? Supplement? Local Agreements? Past practice? Law? Rulings or Awards? In order to have a legitimate claim or grievance, there must be a violation of something. This "W" directs your attention to that specific something which has been violated.
What are the demands? What adjustments are necessary to completely correct the injustice and to place the aggrieved member in some position he/she would have been in had the grievance not occurred?
It is important to remember that many people cannot clearly distinguish opinion from fact. It is important to examine all facts, and make certain they do not contain opinions.
In the handling of disciplinary cases, getting the facts becomes even more important. In such cases, the aggrieved employee is frequently emotionally involved in the grievance and for good reason, since the employee's job might well be at stake. It is in the interest of the employee that the facts in the case be carefully checked. There is no substitute for thorough preparation of a case prior to investigations involving the discipline of employees.
The duties of a Local Chairperson are awesome. The membership frequently does not understand the burdens of the Local Chairperson's duties. Many of our members are of the opinion it is the Local Chairperson, and not the member, that is responsible for developing information on contract violations. In some instances, it will be necessary for Local Chairpersons to inject themselves into the fact-finding process. However, this does not excuse the claimant from furnishing as much information as possible with regard to a claimed agreement violation. The claimant is in a much better position to know the pertinent facts involving violations in which they are personally involved. They, not the Local Chairperson, stand to gain monetarily should the union be successful in defending their claim. We must all work together.
The handling of disputes are generally governed either by time limit rules established by national agreements, such as the time limit governing the negotiating and arbitration of interdivisional service issues, or by time limit rules established in individual system agreements between the parties. These time limit rules apply not only to the period within which a grievance can be filed, but also to the period within which a grievance can be appealed by our Union. The time limit rules also apply to the periods in which the carrier must respond to a union grievance. In other words, both parties are bound by the limits established in the agreements, whether national or local.
What is the purpose of time limit rules? They are essentially designed to expedite the handling of grievances. This is based on the idea that if there is delay in handling of grievances, the facts surrounding the grievances become blurred. The expeditious handling of grievances is essential for good labor relations. When it is recognized the purpose of a grievance is to enforce both the contract and protect the membership as a whole, it then becomes quite clear why it is essential to have time limits on grievances.
How Do You Count the Days in Relationship to the Time Limit?
At times a question arises as to just how one counts the days to determine whether or not time limits have been adhered to by the parties. For example, what is day number one if a yard employee starts his shift on 1 1 :00 P.M., July 1 , and violation of the agreement takes place on 1 :00 A.M., July 2? Similarly, when is the last day on which a carrier can reply? Is it the date of mailing the letter or the date of receipt? To be on the safe side, both the first and last day of the time limits should be counted.
These are technical questions on time limits, and it is important, from the UTU's point of view, that grievances not be lost because the time limit rule has not been followed. The best procedure is to make absolutely certain the time limit rule is being complied with. One should avoid technicalities in handling grievances.
As far as conferences are concerned, the Railway Labor Act contains a specific provision. When a conference is requested by either party-union or carrier-the other party must agree to a conference and set a date within ten (10) days after such request. The conference itself must be held within twenty (20) days after the receipt of the notice.
Rights of Claimants Involved in Continuing Violations
All rights of a claimant involved in alleged continuing violations of the agreement are, under this time limit rule, fully protected by continuing to file a claim or grievance for each occurrence (or tour of duty). With respect to claims and grievances involving an employee held out of service in a discipline case, the original notice of request for reinstatement with pay for time lost is sufficient.
As previously mentioned, in order to protect the claim or grievance within the time limit period, please keep in mind the right of representatives of the UTU to file and prosecute claims and grievances for and on behalf of the employee they represent. We all must work together to protect our agreements by filing and handling claims and grievances within the time limits.