CBA Article 36

ARTICLE 36 GRIEVANCE PROCEDURE 

36.1 Terms and Requirements 

A. Grievance Definition 

A grievance is an allegation by a nurse or a group of nurses that there has been a violation or misapplication of this Agreement, which occurred during the term of this Agreement. The term “grievant” as used in this Article includes the term “grievants.” 

B. Filing a Grievance 

Grievances may be filed by the Union on behalf of a nurse or on behalf of a group of nurses. If the Union does so, it will set forth the name of the nurse or the names of the group of nurses. Whenever possible, disputes should be resolved informally, at the lowest level. To that end, all supervisors and nurses are encouraged to engage in free and open discussions about disputes.

C. Computation of Time 

The time limits in this Article must be strictly adhered to unless mutually modified in writing. Days are calendar days, and will be counted by excluding the first day and including the last day of timelines. When the last day falls on a Saturday, Sunday or holiday, the last day will be the next day which is not a Saturday, Sunday or holiday. Transmittal of grievances, appeals and responses will be in writing, and timelines will apply to the date of receipt, not the date of postmarking. 

D. Failure to Meet Timelines 

Failure by the Union to comply with the timelines will result in the automatic withdrawal of the grievance. Failure by the Employer to comply with the timelines will entitle the Union to move the grievance to the next step of the procedure. 

E. Contents 

The written grievance must include the following information or it will not be processed: 

1. The date upon which the alleged violation occurred; 

2. The specific Article and Section of the Agreement violated and a description of the facts upon which the grievance is based; 

3. The specific remedy requested; 

4. The steps taken to informally resolve the grievance, the individuals involved in the attempted resolution, and the results of such discussion; and 

5. The name(s) and signature(s) of the grievant(s) and the union delegate and/or union representative presenting the grievance. 

F. Modifications 

No newly alleged violations and/or remedies may be added after the initial written grievance is filed, except by written mutual agreement. 

G. Resolution 

If the Employer provides the requested remedy or a mutually agreed-upon alternative, the grievance will be considered resolved and may not be moved to the next step. 

H. Bypass 

Any of the steps in this procedure may be bypassed with mutual written consent of the parties involved at the time the bypass is sought. Written request for bypassing a step must be submitted within the timeframes outlined in this Article. Once the request has been made the timeframes will be suspended until there is a decision.

I. Withdrawal 

A grievance may be withdrawn at any time. 

J. Resubmission 

If terminated, resolved or withdrawn, a grievance cannot be resubmitted on the same issue based on the same facts. 

K. Meeting Attendance and Compensation 

1. The Employer has discretion in scheduling Step 1 and 2 grievance meetings. Union delegates will be provided a reasonable amount of time during their normal working hours to investigate and process grievances through the agency head level within the delegate’s office or facility. Grievants and union delegates will not lose pay for attending informal resolution meetings, grievance meetings, alternative dispute resolution sessions, mediation sessions, and arbitration hearings held during work time. Grievants and union delegates will not be paid for informal resolution meetings, grievance meetings, alternative dispute resolution sessions, and arbitration hearings held during their off duty time. 

2. Failure by the union delegate and/or union representative to attend and participate in any scheduled grievance meeting shall constitute waiver of the grievance. 

L. Group Grievances 

The Union will notify management if more than two (2) grievants will be attending a single grievance meeting. 

M. Consolidation 

The Employer may consolidate grievances arising out of the same set of facts. 

N. Alternative Resolution Methods 

Any time during the grievance process, by mutual consent, the parties may use alternative methods to resolve the dispute. If the parties agree to use alternative methods, the time frames in this Article are suspended. If the selected alternative method does not result in a resolution, the Union may return to the grievance process and the time frames resume. The parties will share any expenses and fees of alternative methods equally. 

O. Confidentiality of Proceedings 

The proceedings of any mediation session will not be reported or recorded in any manner, except for agreements that may be reached by the parties during the course of the mediation. Statements made by or to the mediator, or by or to any party or other participant in the mediation may not later be introduced as evidence, may not be made known to an arbitrator or hearings examiner at a hearing, and may not be construed for any purpose as an admission against interest unless they are independently admissible. 

36.2 Filing and Processing 

A. Filing 

A grievance must be filed within twenty-one (21) days of the occurrence giving rise to the grievance, or the date the grievant knew or could reasonably have known of the occurrence. This twenty-one (21) day period will be used to attempt to informally resolve the dispute. Attempts at informal resolution shall, at a minimum, include discussions with a manager who has the authority to resolve the issue. The nurse, union delegate and/or representative shall indicate that the discussion relates to an issue of a potential grievance. 

B. Processing 

1. Step 1 – Appointing Authority or Designee 

If an issue is not resolved informally, the Union may present a written grievance to the nurse’s appointing authority, with a copy to the local Human Resources Office, within the twenty-one (21) day period described above. The appointing authority or designee will meet in person or by telephone with a union delegate and/or union representative and the grievant within fifteen (15) days of receipt of the grievance, and will present a decision in writing to the Union within fifteen (15) days after the meeting. The Union shall present all known facts and issues at the Step 1 meeting. 

2. Step 2 – Secretary or Designee 

If the grievance is not resolved at Step 1, the Union may move it to the next step by filing it with the Office of the Secretary, with a copy to the agency’s Labor Relations Manager, within fifteen (15) days of the Union’s receipt of the Step 1 decision. The Secretary or designee will meet in person or by telephone with a union delegate and/or representative and the grievant within fifteen (15) days of receipt of the appeal, and will present a decision in writing to the Union within fifteen (15) days after the meeting. 

3. Step 3 – Mediation 

If the grievance is not resolved at Step 2, the Union may file a request for mediation with the Public Employment Relations Commission (PERC) in accordance with WAC 391-55-020, with a copy to the Office of Financial Management/Labor Relations Division (OFM/LRD) and the agency’s Human Resources Office within fifteen (15) days of receipt of the Step 2 decision. A copy of the original grievance and all responses will be attached to the mediation request filed with PERC, OFM/LRD, and the agency.

4. Step 4 – Arbitration 

If the grievance is not resolved at Step 3, the Union may file a request for arbitration. The demand to arbitrate the dispute must be filed with the Federal Mediation & Conciliation Services (FMCS) within fifteen days of the mediation session. If the Employer prefers to use the American Arbitration Association (AAA), as an alternative to FMCS, the Employer will pay the difference between the FMCS and AAA filing fees. 

36.3 Arbitration 

A. Selecting an Arbitrator 

The parties will select an arbitrator by mutual agreement or by alternately striking names supplied by the arbitration organization. 

B. Authority of the Arbitrator 

1. The arbitrator will: 

a. Have no authority to rule contrary to, add to, subtract from, or modify any of the provisions of this Agreement; 

b. Be limited in his or her decision to the issue(s) set forth in the original written grievance, unless the parties agree to modify it; 

c. Not make any award that provides a nurse with any benefit or compensation that is greater than would have resulted had there been no violation of this Agreement; 

d. Not have the authority to order the Employer to modify his or her staffing levels, program requirements or to direct staff to work overtime. 

2. The arbitrator will hear arguments on and decide issues of arbitrability before the first day of arbitration at a time convenient for the parties, immediately prior to hearing the case on its merits, or as part of the entire hearing and decision-making process. If the issue of arbitrability is argued prior to the first day of arbitration, it may be argued in writing or by telephone, at the discretion of the arbitrator. Although the decision may be made orally, it will be put in writing and provided to the parties. 

3. The decision of the arbitrator will be final and binding upon the Union, the Employer and the grievant. 

C. Arbitration Costs 

1. The expenses and fees of the arbitrator, and the cost (if any) of the hearing room, will be shared equally by the parties.

2. If the arbitration hearing is postponed or canceled because of one party, that party will bear the cost of the postponement or cancellation. The costs of any mutually agreed upon postponements or cancellations will be shared equally by the parties. 

3. If either party desires a record of the arbitration, a court reporter may be used. If that party purchases a transcript, a copy will be provided to the arbitrator, free of charge. If the other party desires a copy of the transcript, it will pay for half of the costs of the fee for the court reporter, the original transcript and a copy. 

4. Each party is responsible for the costs of its attorneys, representatives, witnesses and all other costs related to the development and presentation of their case. Grievants and their witnesses will not be paid by the Employer for any time used to prepare for, or travel to or from arbitration hearings that occur during the nurse’s scheduled workday. The nurse(s) may be approved to use compensatory time, exchange time, vacation leave or leave without pay for such activities. 

© Paul Vilja 2017