WE MAKE SAN JOSE HAPPEN
MEF & CEO
Discipline and Workplace Rights*
What is (and is not) a grievance?
Generally speaking, a grievance is a claim or charge of misunderstanding, or difference in interpretation, or violation of provisions of the rules, including, but not limited to, any violation of a contract, policies, regulations, etc. which affect wages, hours or other terms and conditions of employment. Usually, if you believe that you are being harmed or treated unfairly, but have some other route of appeal or complaint, you do not have a viable grievance. However, it is important to review the grievance procedure as outlined in the MEF MOA to determine whether you have a viable grievance.
In other words, to find a grievable offense, one must usually first find a violation of a particular rule, departmental policy, or contract. It is important to realize that merely because a supervisor is mistreating you, it probably does not give rights to a grievance. The term “hostile work environment” is typically not a term used in grievances. This term is specifically reserved for use in harassment cases. As long as a supervisor is not creating a “hostile work environment” because of your affiliation with a protected class, such as your race, gender, sexual orientation, religious affiliation, disability, etc., your supervisor can usually treat you as poorly as he/she chooses. Having “people skills” and a pleasant approach with subordinates is, unfortunately not a requirement for supervisors.
Q: What is a grievance?
A: Although many people think of a grievance simply as a complaint, a grievance is actually a specific process that is used when an employee or a union representative believes that a violation of a union contract has occurred. A grievance is defined as a dispute between the City and the union (or bargaining unit) regarding the interpretation or application of the MEF contract (Memorandum of Agreement or “MOA”). A grievance can also be a dispute regarding the interpretation or application of the Employer-Employee Resolution #39367 (City Policy Manual Section 2.1.1).
Q: What are the steps of the grievance process?
A: The steps of the grievance process are described in the MEF MOA. There are four steps:
Step 1 – Presented to employee’s immediate supervisor (either verbally or in writing)
Q: What should I do to prepare for a grievance?
A: First contact a steward or other union representative. Make sure you understand the specific section MOA for which you are filing the grievance. It is also very important to know the exact date or dates the violation occurred. Grievances must be filed with in a specific timeline as outlined in the MOA (see MOA Rights Grievance Procedure). Once you have this information, determine if you are within those required timelines for filing.
Q: What should I include in my grievance?
A: You should identify the facts, the specific issue(s), and the remedy you are seeking to “right the wrong.” Your steward should help you with this.
Q: Can the timelines to file a grievance be extended?
A: Yes. However, these timelines can only be extended by mutual agreement. If a timeline is extended, the agreement to extend the timeline should be confirmed in writing, including the number of days or the exact date of the extended deadline. Timeframes in the grievance are of the essence and will be strictly followed by management.
Q: What happens if my supervisor/manager misses the deadline to respond?
A: If management fails to respond to a grievance within the required timeframe the union can advance the grievance to the next step of the grievance process.
Q: With whom do I file a Step I grievance?
A: You file a Step I grievance with your immediate supervisor who responds to it. You should seek assistance from a union representative if there is any question as to the meaning or interpretation of language of the MOA and if it applies to a particular situation. If you are dissatisfied with your immediate supervisor’s response, you may appeal the grievance to Step II. This must be filed in writing, and should be done with the assistance of a union representative.
Q: With whom do I file a Step II grievance?
A: The Department Director or designee is responsible for receiving Step II grievances. Again, it is important to ensure that the grievance has been timely filed according to the timeframes in the MOA. The Step II grievance must be filed in writing and include 1) a clear statement of the problem, 2) the facts upon which the grievance is based, 3) the MOA sections violated, and 4) the remedy requested. If you are dissatisfied with the Department Director’s or designee’s response, you may appeal the grievance to Step III.
Q: With whom do I file a Step III grievance?
A: A Step III grievance is filed with the Office of Employee Relations (OER) on behalf of the City Manager. This must be done within 10 working days of receipt of the written Step II decision. Within 10 days of filing OER will schedule a hearing with you and your union representative. A Department representative who has background knowledge of the grievance will also be invited to attend.
Q: What happens in Step IV – Arbitration?
A: If the union is dissatisfied with the response by OER, the grievance may be appealed to Step IV – Arbitration. Prior to this occurring, the MEF Stewards Council will review the merits of the grievance and decide whether or not to advance the process to arbitration. If this occurs, the union and the City select an arbitrator. The arbitrator is a neutral person from outside the City who holds a hearing and issues a decision. The arbitrator’s decision is binding on both the City and the union. Arbitration is the final step in the grievance process.
Q: Can I skip any of the steps in the grievance procedure?
A: No, unless by mutual agreement between the employee or union representative and OER. In some cases, an agreement is made to allow a grievance to be filed directly to the Step II or III level.
Q: What is an Administrative Grievance?
A: An Administrative Grievance is defined as an employee’s contention that the City has failed to comply with an established rule, regulation, policy, procedure, ordinance or resolution governing personnel practices or working conditions and by such failure has either deprived the employee of a right or economic benefit or impaired such right or economic benefit.
Q: How is an Administrative Grievance different from a MOA Grievance?
A: An Administrative Grievance differs from a MOA grievance in that the dispute is not over the interpretation of the MOA. In addition, there are only three steps in an administrative grievance with the City Manager’s Office of Employee Relations’ decision being final. However, if there is an applicable complaint or dispute resolution procedure provided in the City Charter, Municipal Code, MOA, policy, ordinance or resolution, that procedure shall be used. (See CPM section for Administrative Grievance Procedure fore more information.)