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.