Beginning Contract Maintenance New Leaders and Building Reps

Beginning Contract
Maintenance
for
New Leaders and
Building Reps
Bayland Educators and

United Northeast Educators
Local Leadership Conference
September 26, 2007
Contract Maintenance
The Basics
What is a Collective Bargaining Agreement?
Collective bargaining agreements (contracts) are enforced by the filing and processing
of grievances. But what is a collective bargaining agreement? It is the written record of
the agreements reached at the bargaining table between an employer and a labor union
which regulates terms and conditions of employment for employees in the bargaining
unit represented by the labor union. A collective bargaining agreement (CBA) is also
called a Master Agreement, a Master Contract, or simply a contract.
 A collective bargaining agreement is not the same as an individual

employment contract.
 Side bar agreements and grievance settlements are also collective bargaining
agreements.
Collective bargaining agreements are enforceable by the labor union for the benefit of
the individual members whoa re third party beneficiaries of the agreement, as well as
for the benefit of the labor union.
Statutory Foundation
The statutory foundation for CBAs is the Municipal Employment

Relations Act. (MERA). MERA makes it unlawful for a municipal
employer, a municipal employee, or a labor union to violate a CBA. If
an employer and a labor union have not agreed to submit unresolved grievances to
final and binding arbitration, CBAs can be enforced by filing a prohibited practice
complaint under MERA. If the parties do have an agreement to submit unresolved
grievances to final and binding grievance arbitration, but the employer refuses to do so,
a prohibited practice complaint can be filed under MERA, forcing the employer to live
up to its agreement to arbitrate.
Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 2

Mechanics of Enforcement
The day to day interpretation and implementation of a contract falls to management.
Enforcement of the contract - - making sure that management’s interpretation and
implementation is correct - - falls to the union. Bargaining unit members and/or the
union must enforce the CBA (maintain its provisions) by initiating the dispute
resolution mechanism agreed to by the parties when management administers and
implements the contract incorrectly. Usually that means filing a grievance.
How does the union learn that management has violated the contract? Usually, the
union depends on individual members to bring matters of concern to the union’s
attention. A better, though certainly more time-consuming way, is for the union to
systematically police the agreement.
For instance, in a situation where the union has just bargained a provision providing for
employer contributions to tax-sheltered annuities, the union could circulate a
questionnaire regarding the subject to all members, review the appropriate records of
the district, and then determine if the new provision is being correctly implemented by
the employer.
Or, the union could hold regular building meetings or “listening” sessions for the
purpose of hearing members concerns about contract maintenance.

What is a Grievance?
The definition of a grievance is usually contained in the Agreement. The most common
definition is a claim by an employee, group of employees, or the Association that
involves the meaning, application or interpretation of a provision(s) of the collective bargaining
agreement.
Grievances can typically be characterized into four major types:
1. Plain violation of a contract provision(s).
2. Disagreement over the facts of an event or situation.
3. Disagreement over the meaning or application of a contract provision(s).
4. Disagreement over reasonableness or fairness of administrative acts, often

disciplinary action.
Purposes of a Grievance
• Establishes rights of employee through interpretation of contract, rules and
regulations.
• Protects rights clearly established under contract.
• Assures equal and fair treatment according to customary practice.
• Provides systematic means of solving problems.
• Provides a channel of communication. Allows avenue for employee to tell their

side of the story.
• Requires administration to justify action.
• Lays a foundation for bargaining a successor agreement

Grievance Log
Arbitration
Grievance
Brief Step 1 Step 2 Step 3 Notice
Descriptio
Number Date Response Date Response Date Response Date
n
Submitted Date Submitted Date Submitted Date Submitted
Timelines
Union submit to Employer (Step 1) _____ working/calendar days
Employer response to Union (Step 1) _____ working/calendar days
Union gives notice of intent to arbitrate _____ working/calendar days

Sample Intake Form
Date: ___________________________ Name: ___________________________
Position: ________________________ (w): ______________________________
Barg. Unit: _______________________ (h): _______________________________
School: __________________________ email: ____________________________
Supervisor: _______________________ Building Rep: _____________________
Issue:
Action:

Don’t Wait to File or Appeal
A grievance must be filed, and appealed to succeeding steps, within the timelines set
forth in the collective bargaining agreement.
An arbitrator may dismiss a grievance, no matter how legitimate it may be, if the
timelines were not properly followed.
The time meter for filing a grievance typically starts running the moment the grievant(s)
had, or should have had, reasonable knowledge of the cause of the grievance.
If there is a mutual agreement to extend a timeline, get it in writing.
Check the collective bargaining agreement to make sure whether

timelines are based on work days, calendar days, school days, etc.
Also, how are they applied over the summer break?

Role of a Grievance Committee
A Grievance (or Members Rights) Committee should have primary responsibility for:
 Determining whether to process a grievance, and to what level
 Assisting bargaining unit members
 Interpreting the contract
 Enforcing the contract
 Holding the administration accountable
 Making suggestions to the bargaining team
 Storing relevant information
 Guarding against fraudulent claims and/or nuisance grievances

The Advocacy Function
• Advocacy is defined as “pleading the cause of an individual or a group.”
• Advocacy is the responsibility of the Association, as exercised by any designated

person charged with investigating and processing a grievance.
• The Association is responsible for enforcing the contract on behalf of all

employees covered by the contract, not only members of the Association. Thus,
the Association has the duty to represent and process grievances on behalf of fair
share employees.
• The role of the Association is not to put its members on trial but to defend and
protect them. Don’t judge - - defend.
• The role of the Association is to listen to the complaint of a member, advise the
best strategy for securing or protecting the member’s interest, and set about
doing so in the best manner possible.
• It is not the Association’s business to resolve member v. member complaints,

unless it can be turned into a contractual issue or complaint against management.

Do I Think Like an Advocate?
Based upon the problem listed below, circle “yes,” “no,” or “maybe” for each item.
Problem An employee whom everyone knows abuses sick leave has been docked a
day’s pay for taking sick leave on a day when he was seen skiing.
Yes/No/Maybe Does it appear even slightly possible that this member has been denied a right or
suffered a violation of a right to which he is entitled?
Yes/No/Maybe Despite reasons that may have existed for the action that created this problem, am I
prepared to make a commitment to protect all members, this member included, from
being deprived rights - - knowing the unprotected right of one members will
jeopardize the rights of all?
Yes/No/Maybe Do I believe in the right of due process for every member?
Yes/No/Maybe In light of this member’s right to due process, am I prepared to insist that every
opportunity for presentation of all facts supporting this member’s position be
provided?
Yes/No/Maybe Am I prepared, as necessary, to search out all possible resources through the local
association (the negotiated agreement, past practice, local grievance records, and
bargaining history) and the UniServ Director and other staff to support his member’s
position?
Yes/No/Maybe If it begins to appear that evidence supports the position of the other side am I
prepared to carry through on my responsibility to search out all facts supporting this
member’s position, to allow the other side its right to supply arguments supporting its
position, and to demand that the basic burden-of-proof requirements are met?
Yes/No/Maybe If I should develop some personal prejudices about this member or about
circumstances surrounding this incident, will I nevertheless continue to believe that I
am responsible to do all in my power to advocate this member’s rights? Do I believe
that my personal views have to bearing on the position I will advocate under due
process? Failing this, will I be willing to assist this member in obtaining a more neutral
advocate?
Yes/No/Maybe Do I believe that my judgment is this situation is irrelevant? Do I believe that all that is
relevant is selection of every fact, argument, witness and resource necessary to
advocate the association position for this member?
Yes/No/Maybe Am I prepared to do some extensive listening? Do I believe that my aim will be to

select and make use of only those facts that are pertinent to the association’s advocacy
of this member’s rights? Do I believe that the burden of proof is on the other side?

Role of the Building Rep or Grievance Rep:
Initial Step - - Talking with the Grievant
When contacted by a member, get all of the facts.
• Check the accuracy of the complaint.
• Determine the grievability of the issue. Is it:

– A violation of the Agreement?
– A violation of law?
– A violation of past practice?
– A violation of administration board rules or policy?
– An inherent area of employer responsibility, such as health or safety?
– Discriminatory compared to the way other employees are/were treated?
• Don’t judge a grievance yourself.

Interviewing the Potential Grievant
• Be attentive to obtain the cooperation of the member.
• Ask specific questions to keep the member focused. Who, What, When, Where,
How, Why?
• Request relevant and hard evidence.
• Maintain an objective attitude. Avoid hasty conclusions, and preconceived

notions.
• Do not pass judgment on the matter.
• Do not commit the Association to a course of action. MAKE NO PROMISES!
• Keep in mind there are always two, or more, sides to every story.
Tips to Share With A Grievant
• DO NOT attempt to answer accusations spontaneously in a meeting with the

administrator. Request adjournment.
• If a very serious problem that could result in loss of job, civil or criminal suit, DO
NOT make any statements or answer any questions until consulting the UniServ
Director.
• DO document everything that you can recall about the situation in a timely
manner.
• DO NOT submit a written statement without thinking it out first, and consulting
the UniServ Director if a serious matter.
• DO retain or request copies of any written statements and all correspondence

regarding the matter.
• DO NOT agree to any hasty settlements.
• DO NOT meet with Administration alone, bring an Association representative,

or at least a witness.

Member in Crisis
Have the member organize and bring to meeting with you, the representative:
• Personnel files and other pertinent docs

o Organized chronologically
o Personal copies of docs
o Employer copies
• Contact Info
• Work Site
• Print out emails
• Write down details - - your

version of event(s), incident(s)
• List of Players
o Relationships between players
• List of witnesses
o With contact info
o Prioritize
o Organize - - incident or character?
o Annotate - - why should I talk to each witness?
• Contract
• Handbook(s)

The Funnel Approach:
Asking Questions of a Grievant
Who?
Open- What?
Ended Where?
When?
Question Why?
s How?
Describe?
Explain.
Tell me.
Follow-Up What do you mean?

Tell me the details.
Exhaust What else?

Always?
Never?
Is that all?
Anything else?
Fill in the gaps What about. . .?

Have you. . .?
Were there. . .?
Recapitulate As I understand it. . .

Is it right that. . .?
Test Theories Agree with me that. . .?

You don’t dispute that. . .?
You will admit that. . .?
Admissions
Role of the Building Rep or Grievance Rep:
Informal Step
Step 1 meeting with grievant and supervisor.
 Don’t humble yourself; it is a meeting of equals.
 Get management’s side of the story.
 Don’t get side tracked on past problems or incidents.
 Disagree amicably. Be calm, but firm.
 Don’t horse trade or agree to a hurried settlement.
Informal Stages of the Grievance

Most grievances are discussed informally between the Association and Administration
before they are formalized in writing. In fact, many contracts have informal discussion
as the first step of the grievance process. During the informal stages, remember:
• You become the Association when you represent a member.
• This is the most critical point of many grievances, except for arbitration.
• Create a feeling of “mutual respect” between the Association and administration.

It is a meeting of equals.
• Most grievances are, and should be, settled at this stage.
• Maintain a record of any informal meetings. If an informal meeting is the first

step of the process, be sure to document in writing that it took place.
Make sure it is understood that the meeting is being held as part of grievance process.

Pretty much everything you need to know to FULFILL
your RESPONSIBILITIES in investigatory and/or
DISCIPLINARY meetings with administrators:
• Believe in yourself, you will do fine!
• Remember the duty of fair representation.
• Do not discuss the issue with the administrator prior to the meeting. You can ask about the
subject of the meeting, but by knowing all the details ahead of time, you run the risk of
immediate suspicion and disengagement by the member.
• Similarly, try to avoid arriving at the meeting before the member.
• Know that you do not have attorney-client privilege. You and any of your notes could be subject
to disclosure under any lawful subpoena. Repeat this surprising concept until you actually
believe it.
• Know and understand the limitations of your power to bind the member and the Association.
• Know the disciplinary language of your contract. Is progressive discipline required? Are there
exceptions to progressive discipline? When are documents removed, if at all, from a personnel
file?
• Know the timelines of your contract’s grievance procedure. Know whether they are calendar
days versus contract or workdays.
• Don’t try to be an expert for the member on just cause. Leave that to the experienced local
representatives and/or UniServ Director.
• Know that the member you are representing will be nervous, stressed and counting on you.
• Know that the first investigatory meeting is often the most important.
• Know exactly what the purpose of your representative role is.
• The most critical function will be to take accurate notes and be prepared to serve as a witness to
the issues discussed in the meeting.
• Take strategic notes. Do not create a transcript or write down everything verbatim. Try and
recognize the salient and important points of both sides of the discussion. Questions from an
administrator may not be relevant, but the answers from the member are. In addition, comments
on those answers by the administrator are usually very important (particularly any sympathy or
other such comments).
• Listen carefully and critically.
• Require a respectful and professional atmosphere. Recognize that you are on equal footing with
the District in this arena and not a subordinate.
• Do not attempt to inject any gentle or tension breaking humor into the meeting.
Pretty much everything you need to know to FULFILL your
RESPONSIBILITIES in investigatory and/or DISCIPLINARY meetings with
administrators, con’t.:
• Do not attempt any “Mutt and Jeff” or “Good Cop/Bad Cop” routines with other association
representatives or the member.
• Keep a poker face at all times.
• Never help the member “understand” what they did wrong while in a meeting with
administrators. If the member is actually in the wrong, a discussion of his/her options can take
place at a later time in private.
• Try to encourage the administration to stick to the facts and the reason(s) for the meeting.
Bringing up past issues of the member, particularly those that are unrelated to the new issue, is
not helpful to the member or in resolving the new issue.
• Recognize the difficulty of ensuring that the member cooperates with an investigation versus
him/her committing an act of self-incrimination.
• The member must answer the questions asked of him/her honestly. Failure to answer could be
seen as insubordinate.
• Always prevent the member from crossing over to insubordination.
• Know your own temper. Some administrators can be deliberately provocative. As an association
representative you are cloaked with some legal protection but it is not a license for disrespect, no
matter how obnoxious the administrator. Very extreme examples of bad behavior could
conceivably result in the representative being disciplined.
• You may ask clarifying questions, but don’t add to the member’s comments.
• The less that is said by you or the member the better. You can always add information later but
you can never take back anything you already said.
• Administrators often end investigatory meetings by asking: “Is there anything else you want to tell
us?” Be cautious of this open-ended question. It is often better to advise the member to just say
no.
• Know that no matter how much aware you are of the facts of the meeting you should never offer
any conclusions.
• Know that everything in the meeting is confidential. Do not gossip about the meeting and only
disclose the information to the association representatives who are sharing responsibility for
representation of the member.
• Know who in the association to follow up with after the meeting. Do it quickly.

You Have a Right to Be Represented
“Weingarten Rights”
Every union member has a legal right to union representation when meeting with and
employer representative of the meeting could lead to discipline. According to the rules
established by the US Supreme Court in 1975, an employee is entitled to the PRESENCE
of a union representative UPON REQUEST at any meeting with an employer when:
• the purpose of the meeting is to investigate the employee’s performance or to

obtain admissions or misconduct or other evidence;
• the purpose of the meeting is to ask the employee to explain their conduct or to
defend it;
• the purpose of the meeting is to compel the employee to answer questions or

give evidence;
• the employee will be questioned about something that could affect employee’s
working conditions or job security.
The following statement can and should be used to secure union representation if you
are in a discussion with your employer that you reasonably believe could lead to
disciplinary action being taken against you:
If this discussion could in any way lead to my being disciplined or

terminated, or affect my personal working conditions, I respectfully
request that my association representative be present at the meeting.
Without representation, I choose not to answer any questions.
It is important that the union members are educated about their Weingarten
rights BEFORE an occasion to use them arises. An employer has no obligation to ask an
employee if they want representation, the employee must REQUEST representation.
Employees are not entitled to representation when the meeting is for the purpose
of conveying work instructions, training, or communicating needed corrections in work
techniques. Or, when the employer assures the employee that no discipline or adverse
employment consequences can result from the meeting.

Obey Now – Grieve Later
Management does have the right to issue reasonable orders and directions which
conform to the contract.
What does an employee do if ordered to do something which is obviously contrary to

the terms of the contract?
• Inform the supervisor that the contract is being violated.
• Inform the supervisor that a grievance will be filed.
• Obey and carry out the order.
• ONLY exception is where the order may be injurious to health (i.e., remove
material containing asbestos) or physical safety (i.e., check lockers for a bomb).
In such cases, an employee can refuse to carry out the order.
Failure to obey an order can result in disciplinary action for insubordination. Such
discipline, if reasonable, is likely to be upheld by an arbitrator, as insubordination is
probably one of the easiest charges to prove against an employee.
Insubordination
It may be difficult to acknowledge sometimes, but usually everyone has a boss. Being
“boss” gives the person management rights.
The boss has a right to issue reasonable orders and

directions so long as they conform to the contract,
and are:
(1) not injurious to health;
(2) clear and unambiguous;
(3) applied uniformly; and
(4) justly administered.
If you think an order violates some rule, the contract, or a law, the best advice is to carry
out the order to the extent possible and necessary while, at the same time, pursuing those
remedies available to you, namely, a grievance or suit. A good rule to follow with
respect to insubordination is “Don’t Be!”

Just Cause
Also referenced as “justifiable cause,” “proper cause,” “obvious cause,” or simply as
“cause.”
Know your contract – are all forms of discipline subject to the just cause standard? Is
there a lesser standard for reprimands?
Rarely, if ever, applies to a discharged probationary employee.
Two-pronged test:
Was discipline warranted?
If so, was the imposed discipline appropriate
given the offense?
Seven tests:
 Was the employee adequately warned of the consequences of his conduct

 Was the employer's rule or order reasonably related to efficient and safe
operations?
 Did management investigate before administering the discipline?
 Was the investigation fair and objective?
 Did the investigation produce substantial evidence or proof of guilt?
 Were the rules, orders, and penalties applied evenhandedly and without
discrimination?
 Was the penalty reasonably related to the seriousness of the offense and the past
record?

Progressive Discipline
Whether or not it is included in your contract language, most arbitrators subscribe to
the theory of “Progressive Discipline.” Progressive discipline typically consists of four
or five steps:
1. Initial reprimand. Generally a verbal reprimand or warning that is often

documented in writing.
2. Written reprimand. Basically a second warning which carries more weight than
the initial or verbal reprimand.
3. Suspension. Time off from work, almost always without pay. Some contracts
provide for suspension with pay or for two suspension steps with increasing
duration of the suspension.
4. Dismissal. Termination, discharge
Points to consider:
• Progression up the steps of the procedure should be for same type of violation.
• The rationale for progressive discipline is to warn employees about

inappropriate behavior or actions and provide them an opportunity to correct
the behavior or actions.
• Steps of the procedure can be skipped for serious offenses. Thus, an employee
may be suspended or discharged without warning, if the offense is deemed
serious enough, or one for which warning should not be necessary.
• Sometimes discipline is warranted. In such cases, the level of discipline can be

grieved, if excessive or inappropriate.
• Duty of Fair Representation does not require arbitration of all grievances.

Association Rights in Grievance Processing
The following union rights should be explicitly stated in the contractual grievance
procedure. Even if they are not, the union should nevertheless take the position that is
has these rights:
• The
right
to
present the union point of view at all grievance meetings.
• The right to receive in writing a written response at each step of the process.
• The right to initiate a grievance on behalf of the association, or on behalf of

grievant(s), including the right to file a class grievance on behalf of more than
one employee.
• The right to determine whether a grievance is processed to arbitration.
• The right to continue a grievance when not appealed by the grievant.
• The right to start a grievance at a higher step, if the individual the grievance is
presented to at a given step has no authority to grant the remedy requested.

Individual Employee Rights in Grievance Processing
An individual employee, whether or not a member of the union (fair share members
have the same rights), has the following grievance rights:
The right to fair representation

by his/her union;
The right to accept a

settlement;
The right to refuse a proffered

settlement;
The right to be represented

and not judged.

Duty of Fair Representation
A union has the duty to be honest, to act in good faith, to be non-discriminatory, and to
be informed and to have a rational basis for making a decision.
A union breaches it duty of fair representation when it acts in an arbitrary,

discriminatory or bad faith manner toward a member of the bargaining unit.
A union does not breach its duty of fair representation merely because it is wrong or
because it fails to satisfy everyone it represents.
The union has the duty of fair representation:
• during collective bargaining for an initial contract and successor agreements;
• during the life of the contract, including the resolution of disputes and the
processing of grievances;
• When deciding whether or not to arbitrate and while conducting the arbitration.
Factors regarding a grievance that can legitimately enter into the

decision-making process include:
• Cost to the Association.
• Effect on employee – monetary or otherwise.
• Effect on other workers – greater good of the members as a whole.
• Importance of the principle.
• Trade-offs at bargaining table or in settling grievances.
• Merits of the grievance – likelihood of success in arbitration.
In order to be considered a breach of the duty of fair representation, conduct has to

involve more than simple negligence.

Duty of Fair Representation
The Union should take special care to:
Avoid discrimination
Adhere to timelines
Investigate thoroughly
Communicate with the grievant
Document everything carefully
The Union fulfills its Duty of Fair Representation if it:
Operates in good faith
Does its best to help bargaining unit members
Does a thorough job
Tries to do “do it right”

Writing the Grievance
A grievance can be composed in sentences

or short paragraphs:
1. The SITUATION tells who was involved, what happened, when it happened and
where. It can often begin, “On or about...”
2. The CONTENTION explains why the Association believes this is a grievance.

Indicate that the actions of the employer violated articles of the Agreement
“including but not limited to…” If the employer’s actions were a violation of past
practice, be sure to include that in the statement.
3. The REMEDY outlines how the Association seeks to have the violation corrected. Be
sure the remedy fixes the problem, that the grievant(s) are to be “made whole,” and
to request “all potential remedies deemed just and fair.”
A grievance is reduced to written form so that the employer will have official
notification that the association is grieving a matter and should give the employer only
enough information to clearly define the case in question.
The written grievance does not win the case.

KEEP IT SIMPLE!!!

Remedies
• The remedy requested must correct the violation.
• In cases of pay, seniority, benefits, etc., all parties to the grievance must be “made
whole.” That is, the remedy should correct the damage done by the violation.
• The remedy cannot – in any way – be in conflict with the existing negotiated
agreement.
• The requested remedy should include a statement such as, “and any other
appropriate remedies deemed just and fair.”
• Do not make the remedy too narrow, leave room for additional or alternative
remedies that might not come to mind during writing of the initial grievance.
• In writing the grievance it is not appropriate to seek apologies, or to ask that

another employee or a supervisor be disciplined.

Sample Written Grievance
EDUCATIONAL SUPPORT PERSONNEL GRIEVANCE FORM
DATE PRESENTED: June 13, 2002

PRESENTED TO: Superintendent
GRIEVANT: ESP
DATE OF ALLEGED VIOLATION: June 10, 2002
ESP REPRESENTATIVE: ESP President
ESP GRIEVANCE #: 2002/03-04
FACTS AND ISSUES UPON WHICH THE GRIEVANCE IS BASED: The District
involuntarily reassigned employees to vacant or existing positions without posting
and/or allowing employees whose positions had been eliminated the right bump into
those or other positions.
SECTION(S) OF THE CONTRACT VIOLATED: The District violated Article XI when it

denied employees whose positions had been eliminated or reduced the right to exercise
their bumping rights and/or the right to remain in the reduced position. It also violated
Article XII when it failed to post vacant positions to the bargaining unit.
REMEDY SOUGHT: Allow all employees whose positions were eliminated to exercise
their rights under Article XI. Post all vacant positions to the bargaining unit in
accordance with Article XII. Make all affected employees whole for any lost wages and
benefits.

Sample Grievance Form
1. School: _____________________________________________ Date:
______________________________
2. Grievant (s):
______________________________________________________________________________
3. Person submitting this form, if other than the grievant (s):
_________________________________________________________________________________________
4. Type of grievance: Individual _____ Group _____
5. This grievance alleges violation of:
Article (s) _______________________________________________________________________________
_________________________________________________________________________________________
6. Grievance Step: (circle one of the following)
Step 1 – Principal Step 2 – Superintendent Step 3 - - School Board
7. Grievance filed with: (name) ______________________________________________________________
8. Describe the grievance - - state all facts, including time, place of incident, names of person involved,
etc. (Use additional sheets if necessary.)
9. What previous action has been taken to resolve the problem?
10. Remedy sought:
Signature of Grievant (s) / Representative (s):
_______________________________________________________________________________________
Copies are required as follows:

1 to Building Administrator, 1 to Building Rep., 1 to Grievant, 1 to District Rep.

Sample Letter Processing Grievance to Next Step
TO: , District Administrator

FROM: , Member Rights Chair
RE: Grievance No. __________
DATE: _______________
Please be advised that the _____________________ Association hereby gives notice of its
intent to process the above referenced grievance to Step of the grievance procedure
pursuant to the parties’ Agreement. A copy of the grievance is attached.
cc: __________________, UniServ Director

Sample Letter Processing Grievance to Board
TO: , School Board Clerk

DATE: _
Please be advised that the Association hereby gives notice of its intent to
appeal the above referenced grievance to the School Board as Step of the
grievance procedure. A closed session is requested in as much as this is a collective
bargaining matter. Per the parties’ Agreement, a mutually agreeable time and date will
need to be scheduled for the meeting with the School Board. A copy of the grievance is
attached.
cc: , UniServ Director

, District Administrator

Sample Letter Withdrawing Grievance

DATE: _______________
Please be advised that the _____________________ Association hereby withdraws the

above referenced grievance without prejudice.
By withdrawing a grievance “without prejudice,” the Union reserves the right

to grieve the same issue should it arise at a later time.
In contrast, if a grievance is withdrawn “with prejudice,” the Union would be

barred from grieving that same issue.

Sample Letter Processing Grievance to Arbitration

DATE: _______________
Please be advised that the ___________________ Association hereby gives notice of its
intent to process the above referenced grievance to arbitration pursuant to the parties’
Agreement.

Who’re Gonna Call?
Local Association Officers and Committees
Office Name & Address Phone Email
President _____________________ _________________ ___________________
_____________________
Vice President _____________________ _________________ ___________________
_____________________
Secretary _____________________ _________________ ___________________
_____________________
Treasurer _____________________ _________________ ___________________
_____________________
Grievance Chair _____________________ _________________ ___________________
_____________________
Chief Negotiator _____________________ _________________ ___________________
_____________________
UniServ Resources
UniServ Director _____________________ _________________ ___________________
_____________________
UniServ Board _____________________ _________________ ___________________

President
_____________________

MEMORANDUM
TO: MIKE MOORE

FROM: Melissa M. Thiel Collar
SUBJECT: Od d s e n and Garrity summaries
DATE: 2007
In Garrity v. New Jersey, 385 U.S. 493 (1967), the United States Supreme Court held that
a public employer (in this case, a police department,) could not compel a public employee to
provide a statement in the course of an administrative investigation and then use the compelled
statement against the employee in the course of a criminal proceeding. Garrity protections apply
to all public employees. Erwin v. Price, 778 F.2d 668, 669 (11th Cir. 1985). The basic rules that
emerge from Garrity and its progeny can be summarized as follows:
1. A public employee may be ordered to cooperate in an internal administrative

investigation to provide statements regarding matters that are specifically, directly and
narrowly related to the employee’s official conduct.
2. Statements made pursuant to an order to cooperate in an internal administrative

investigation cannot be used against the employee in any criminal proceeding.
3. If an employee is given his or her Garrity warning, he or she may not refuse to answer
specific, direct and narrow job related questions so long as the employer does not seek to
compel a waiver of the employee’s constitutional rights.
4. An employee can be substantially disciplined or terminated for refusing to cooperate and

provide statements in an administrative internal investigation once provided Garrity.
5. A public employer cannot, in the course of conducting an administrative investigation,

compel an employee to waive his or her immunity required by Garrity. See, Gardner v.
Broderick, 392 U.S. 273 (1968).
The protections of Garrity apply whenever an employee is required by an employer to
answer questions. Where an employee voluntarily makes statements, those statements are not
protected by Garrity. Likewise, false statements made during the course of an internal
investigation are not entitled to Garrity immunity. Herek v. Police and Fire Comm’n, 226 Wis.
2d 504, 514, 595 N.W.2d 113 (1999). This is true whether an employee is being interviewed or
whether an employee provides a written report or statement.
Although most courts hold that Garrity is self-executing, where an employee is ordered to
submit to an investigatory interview, it is advisable to obtain an affirmative guarantee from the
employer that the information sought will not be used against the employee in a criminal
proceeding. The employee should also be advised that failure to respond to questions could lead
to disciplinary action. These advisements can be done orally (if thorough notes are taken or the
investigatory interview is recorded) or through a written acknowledgement (See Attachments A
and B for sample warning language). If the employee has been ordered to provide a written
statement, the employee should note at the beginning of the narrative that the statements
provided therein are being done so pursuant to his or her Garrity protections (See Attachments C
and D for suggested statements.)
In Oddsen v. Board of Fire and Police Commissioners, 108 Wis. 2d 143, 321 N.W.2d
161 (1982), the Wisconsin Supreme Court adopted the protections of Garrity and its progeny and
further held that public employees must properly be advised of their Garrity rights in the course
of an investigation so that they will not have to guess as to what those rights are. Id. at 164.
Where statements obtained in the course of an internal investigation are coerced, involuntary, the
result of denial of due process, and contrary to the fundamental principles of decency and fair
play, those statements cannot be used, for any purpose. Id. at 146-48, 163. However, subsequent
decisions have declined to adopt a bright-line rule that any statement made, regardless of its
truthfulness, ought to be suppressed if the maker of the statement is not given his or her Garrity
protection. Herek, 226 Wis. 2d at 514.
It is important to note that a public employee’s Garrity rights co-exist with an employee’s
rights under Weingarten. Where an employee reasonably believes that his or her responses could
lead to disciplinary action, he or she is entitled to representation while at the same time entitled
to receive his or her Garrity protections.

Attachment A
Sample Garrity Warning
Mr./Ms. , the purpose of this interview is to require you and
provide you with an opportunity to account for your conduct as a public employee of the District
or for conduct that is relevant to your employment with the District. As a result, the District is
directing you to answer the questions and is placing you on notice that your refusal to answer
questions may lead to your discipline, including your discharge from employment with the
District.
However, the administration is also aware that certain questions it will ask in this
interview may also be or become subjects of criminal proceedings against you. Therefore,
should you choose to answer questions today under the administration’s directive, neither what
you say nor the fruits of what you say can be used against you in any criminal manner.
Therefore, I will begin by asking you if you understand the administration’s position as I
have described it to you. I am not asking you whether you agree with it, only if you understand
it. Do you understand these instructions?
District Official Date Employee
Date

Witness Date Witness
Date

Attachment B
Sample Garrity Warning
1. Mr./Ms. you are presently under investigation by this

employer (district) regarding your conduct which occurred on or about (date)
at (place) concerning
(indicate
alleged activity).
2. This employer (district) is conducting an internal administrative investigation of

the allegations against you pursuant to our authority as your employer. Our investigation is
narrowly and specifically limited to determining whether or not you may have violated any of the
rules and regulations of this employer (district).
3. You are hereby given this direct order to cooperate in this internal investigation
with this employer (district) and to truthfully answer all questions posed to you by this employer
(district) that are directly and narrowly related to your official duties as an employee (teacher) of
this employer (district).
4. You are hereby ordered to provide this information so that this employer (district)
may conduct a proper and complete internal investigation and to obtain all of the pertinent facts
and circumstances surrounding your job related conduct.
5. The information obtained during this investigation, including the information that
we obtain from you pursuant to this direct order, is and shall remain confidential personnel
information, which shall be used only for internal personal purposes within this employer
(district).
6. The information that we obtain, pursuant to this direct order, shall not be released
to any criminal investigating agencies including but not limited to the State Bureau of
Investigation, the Federal Bureau of Investigation, the District Attorney, the Attorney General,
the United States Attorney, the U.S. Justice Department, or other agencies or authorities.
7. You are advised that this is not a criminal investigation and the information that
we obtain pursuant to this direct order will not become a part of a criminal investigation or be
turned into a criminal investigation against you. You are further advised that the information that
we obtain from you pursuant to this direct order will not in any way be used against you in any
criminal proceeding, charge or trial.
8. You are hereby advised and ordered that all information that you provide pursuant
to this direct order must be truthful to the best of your knowledge and ability. You are further
advised that providing false information to this employer (district) pursuant to this direct order
would constitute a violation of this employer’s (district’s) rules and regulations and you will be
accordingly punished with disciplinary action which may include up to termination if you
willfully provide false information. It is essential that this employer (district) obtain truthful
information so that we can properly complete the necessary investigation.

9. You are advised that the information that this employer (district) obtains pursuant
to this direct order may be used against you for internal, administrative and possible personnel
and disciplinary purposes.
10. You are further advised that as a result of your required compliance with this
direct order, you are not waiving any of your constitutional rights. You are further advised that
your constitutional rights under Garrity v. New Jersey, 385 U.S. 493 (1967) and Oddsen v.
Board of Fire and Police Commissioners, 108 Wis. 2d 143, 321 N.W.2d 161 (1982) will be fully
respected and honored by this employer (district). It is further understood that you are not
providing voluntary information in this investigation; rather you are responding to this direct
order from this employer (district) to provide the information requested.
11. This direct order is a condition of your employment and you are now being
directly ordered to answer our questions which are directly and narrowly related to the
performance of your official duties as a part of an official investigation by this employer
(district). If you fail to comply with this order, you may be disciplined including possible
termination of employment.
12. You are directed to execute this order below, by signing and dating this order.
You will immediately be furnished a copy of this executed order.
District Official Date Employee
Date
Witness Date Witness
Date

Attachment C
Suggested Garrity Statement for Preparing Statements or Issuing Reports
On ,(date) , (time) at ,
(place) I was ordered to submit this report (or give this statement) by (name
and title). Consequently, I submit this report (or statement) involuntarily and only because of the
order as a condition of continued employment. In view of likely job forfeiture or termination of
employment if I refuse to cooperate and provide this statement, I have no alternative but to abide
by this order and I am submitting this report (statement) involuntarily.
It is my belief and understanding that the employer (or district) requires this report
(statement) solely and exclusively for internal purposes and will not release it to any other agency
or authority. It is my further belief and understanding that this report (statement) will not be
released to or provided in any subsequent proceeding other than disciplinary proceedings with
my employer (district) itself.
For any and all purposes, I hereby specifically reserve my constitutional rights to remain
silent under the FIFTH and FOURTEENTH AMENDMENTS to the UNITED STATES
CONSTITUTION and under all other rights provided by law. Further, I rely specifically upon
the protection afforded me under the doctrines set forth in Garrity v. State of New Jersey, 385
U.S. 493 (1967); Spevack v. Klein, 385 U.S. 511 (1967), Gardner v. Broderick, 392 U.S. 273
(1968), Oddsen v. Board of Fire and Police Commissioners, 108 Wis. 2d 143, 321 N.W.2d 161
(1982), and other cases, should this report (statement) be used for any other purpose of any kind
or description.

Attachment D
Suggested Garrity Statement for Preparing Statements or Issuing Reports
On (date) at (time) I was ordered
to submit this report by (name and title) and I submit this as a
condition of my continued employment. It is my understanding the report will be used only for
internal purposes and cannot be used for any other proceeding. I request that I be allowed to
contact a representative of my choosing to discuss this matter.
I reserve my rights to remain silent under the 5th and 14th Amendments. I rely on the
protection given to me under Garrity v. New Jersey, 38 U.S. 493 (1967) should this contravene
my rights and should this report be used against me in any additional proceeding.

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Beginning Contract

Bayland Educators and

What is a Collective Bargaining Agreement?

 A collective bargaining agreement is not the same as an individual

The statutory foundation for CBAs is the Municipal Employment

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 2

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 3

Grievances can typically be characterized into four major types:

1. Plain violation of a contract provision(s).

2. Disagreement over the facts of an event or situation.

3. Disagreement over the meaning or application of a contract provision(s).

4. Disagreement over reasonableness or fairness of administrative acts, often

• Protects rights clearly established under contract.

• Assures equal and fair treatment according to customary practice.

• Provides systematic means of solving problems.

• Provides a channel of communication. Allows avenue for employee to tell their

• Requires administration to justify action.

• Lays a foundation for bargaining a successor agreement

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 4

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 5

Date: ___________________________ Name: ___________________________

Position: ________________________ (w): ______________________________

Barg. Unit: _______________________ (h): _______________________________

School: __________________________ email: ____________________________

Supervisor: _______________________ Building Rep: _____________________

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 6

If there is a mutual agreement to extend a timeline, get it in writing.

Check the collective bargaining agreement to make sure whether

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 7

 Determining whether to process a grievance, and to what level

 Assisting bargaining unit members

 Interpreting the contract

 Enforcing the contract

 Holding the administration accountable

 Making suggestions to the bargaining team

 Storing relevant information

 Guarding against fraudulent claims and/or nuisance grievances

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 8

• Advocacy is defined as “pleading the cause of an individual or a group.”

• Advocacy is the responsibility of the Association, as exercised by any designated

• The Association is responsible for enforcing the contract on behalf of all

• It is not the Association’s business to resolve member v. member complaints,

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 9

Yes/No/Maybe Do I believe in the right of due process for every member?

Yes/No/Maybe Am I prepared to do some extensive listening? Do I believe that my aim will be to

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 10

When contacted by a member, get all of the facts.

• Check the accuracy of the complaint.

• Determine the grievability of the issue. Is it:

• Don’t judge a grievance yourself.

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 11

• Be attentive to obtain the cooperation of the member.

• Request relevant and hard evidence.

• Maintain an objective attitude. Avoid hasty conclusions, and preconceived

• Do not pass judgment on the matter.

• Do not commit the Association to a course of action. MAKE NO PROMISES!

Tips to Share With A Grievant

• DO NOT attempt to answer accusations spontaneously in a meeting with the

• DO retain or request copies of any written statements and all correspondence

• DO NOT agree to any hasty settlements.

• DO NOT meet with Administration alone, bring an Association representative,

Bayland Educators / UNE Leadership Conference, September 26, 2007 p. 12

Date: _ Name: _

Position: (w): ______

Barg. Unit: _ (h): _________

School: email: __

Supervisor: ___ Building Rep: _