the grievance procedure. Failure to follow an order which is violative of the negotiated agreement can result in a charge of insubordination. Identifying Grievances The first step in identifying grievances is educating the membership about the contract and the definition of a grievance. The initial detection of violations should be considered a responsibility of every member of the association. Educating members of the provisions of the collective bargaining agreement is a responsibility of the association leadership. The association should provide every member with a copy of the current agreement and develop an effective method of explaining the meaning of its terms to every member. Appropriate methods of effective contract scrutiny must be developed to detect violations. Various methods or combinations of methods which have worked for NJEA affiliates include: • Announced visits to schools by grievance committee members • Availability to members of a central contact (such as a telephone answering service or recording device) • A regular agenda item at AR and other meetings • Periodic circulation to members of a questionnaire • Grievance representative in each building or department with responsibility to identify grievances through individual contacts and building or department meetings • Regular grievance reports and contract information in the association’s newsletter and fliers. 34 – AR Handbook Regularly scheduled grievance training Problems that are recognized as grievances usually fall into four major categories: Violation of the Agreement – an act of ignorance, carelessness, error, omission, or commission by the board or its agent which is known to be contrary to the terms of the agreement. Disagreement of Interpretation – the facts of the issue are usually clear and not in dispute. The grievance comes from a dispute in the interpretation of language. Dispute of Fact – the parties agree on the meaning of the language of the agreement. At issue is whether the alleged violation of the agreement did or did not occur. Equity Disputes – usually based upon the association’s claim that the board or its agent has abused its discretion, or exercised a right in an arbitrary, capricious, or discriminatory manner. Grievances in the four categories listed above differ from unfair labor practices in that they are perceived as violations of contractual as opposed to statutory rights. The most often used unfair practice claim related to grievances is a change in terms and conditions of employment without negotiations. If the contract speaks to the issue at hand or if there is a maintenance of benefits clause in the contract, even if there are grounds for an unfair practice, PERC will defer to arbitration. If, however, the contract is silent and no maintenance of benefits clause exists, PERC may exercise jurisdiction. Sometimes past practice is used as an argument in attempting to sustain a claim concerning the disagreement over interpretation of a contract. However, past practice is often misunderstood. In regard to grievances, past practice comes into play when a contract is silent or when the language in a contract is not clear. Arbitrators have always ruled that where the language of the contract is clear and unambiguous, the language will prevail and no practice can overturn it. For example, if the contract provides that all members are entitled to a 30-minute lunch period and they have in fact been given a 40-minute lunch for the past five years, if management now decrees a 30-minute lunch, past practice will not take precedence over the clear and unambiguous language in the contract. If, on the other hand, the contract states that all members are entitled to a duty-free lunch period and if the lunch has always been 40 minutes in length, past practice would be used in defining the length of the ”period.” An established past practice must satisfy four standards: (a) It must be unequivocal, and regularly and uniformly Granted. (b) It must be clearly enunciated, freely and openly allowed, and exist over a reasonable period of time. (c) It must be accepted – and acted upon – by the parties themselves through their authorized agent in administering the written contract. (d) it must be a term or condition of employment.
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