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