AR Handbook – 33 Duty of fair representation is intended to protect employees from arbitrary conduct on the part of an organization. Great caution must be exercised in determining the merits of grievances. Before refusing to present a grievance be sure such determinations are made based on the facts and individual circumstances. Because the standards set by the courts and NLRB are complex and potential penalties against associations may be costly, all association leaders and members who may be involved in the handling of grievances should receive training in the duty of fair representation as well as other aspects of grievance adjudication. Contact the regional UniServ office for grievance processing assistance and training. Grievance Procedure The actual procedure in any contract is constructed of three major parts: 1. Definition of what is grievable. 2. Procedural steps to be followed in pursuing the grievance. 3. Terminal step of the procedure. The grievance definition must be in accordance with NJSA 34:13A-1 et seq. The most common definition is as follows: A grievance is a claim by an employee or the association based upon the interpretation, application, or violation of policies, agreements and administrative decisions affecting an employee, group of employees, and/ or the association. The actual procedural steps should provide sufficient opportunity for resolution of a grievance through a series of discussions at successively higher levels of decision-making authority while protecting against unreasonable delay. Normally these steps include more timelines in terms of work, school, or calendar days. The number of days for initiation of a grievance and for each step of the procedure must provide sufficient time for investigation, as well as resolution. The key element in any grievance procedure is binding arbitration. Binding arbitration is indispensable if the terms and conditions incorporated in the agreement are to have real meaning. In the absence of arbitration, the association may be subject to unilateral determinations of the meaning and application of a bilaterally negotiated agreement. NJSA 34:13A-1 et seq. states that: “...grievance procedures may provide for binding arbitration as a means for resolving disputes.” With such clear language in the law, it is apparent that any argument against binding arbitration is nothing more than reluctance by the board to recognize the impartiality of a third party in resolving employee disputes. Binding arbitration without reservation establishes the only fair and equitable manner of resolving these employee disputes. In 1990, the law was changed so that grievances are “deemed to require binding arbitration as the terminal step with respect to disputes concerning imposition of reprimands and discipline.” Even if the contract does not provide binding arbitration, the law requires it for disciplinary grievances. (NJSA 34:13A- 29). Work – Then Grieve Management has the right to establish rules appropriate for the efficient operation of the schools provided that such rules conform to law and the board association contract. Generally speaking, the employee who is ordered to do something which, in the employee’s opinion, violates the contract should tell the administration that the contract is being violated and that the requested action shall not have to be done. If just telling the administration that the order is violative of the contract doesn’t resolve the dispute, the employee should carry out the administrator’s directive, tell the administrator that a grievance will be filed, and then take the steps necessary to file a grievance. Conformity to the work-then-grieve principle can at times work a hardship on the employee which must be corrected later by an appropriate award from an arbitrator or avoided in advance by an appropriate strategy in anticipation of the administrator’s directive. The major exception to the principle is when the directive is for the employee to do something which is obviously injurious to health or physical safety. If the hazard is not readily apparent, the work-then grieve principle applies. Guidance from the private sector indicates that under the National Labor Relations Act and OSHA, a worker must have a reasonable belief of an imminent danger of death or serious physical injury, and every possible alternative method of safely completing the work has been explored before refusing the work. This is a very strict standard which goes far beyond a good faith belief that a danger is present. Although the contract does guarantee employment rights, its benefits must be exercised intelligently and with recognition that the law grants to administrators certain management rights. Management has the right to issue directives; the employee has the right to grieve a directive he/she feels is violative of the contract or unreasonable. Even if an order is clearly violative of the negotiated agreement, the employee should carry it out to the extent possible and necessary while pursuing the available remedies under
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