Remedies and Settlements in Grievances: Essential Points to Remember
An in-depth exploration of the importance of remedies in grievance procedures, highlighting the need for appropriate redressal and evidence-backed requests to address violations effectively and ensure fair outcomes for all parties involved.
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Regional Training Seminar Syracuse, NY April 4th 5th2023 REMEDIES - SETTLEMENTS Retired RAA JOHN COLLINS (440) 282-4340
REMEDIES $$$$$$$$$$$$$$$$$$$ An essential part of any grievance is the requested remedy!
REMEDIE$ Without remedies there are no rights. National Arbitrator Richard Mittenthal made this point when he wrote: The grievance procedure is a system not only for adjudicating rights but for redressing wrongs. (C-03234)
REMEDIE$ Too often, NALC stewards are successful in proving that management violated the contract, yet are unsuccessful in obtaining an appropriate remedy. The union should demonstrate that the remedy request is appropriate through documented evidence and arguments in each case file.
REMEDIE$ In my opinion, the union's request for monetary compensation is not warranted. The union claimed that management's failure to meet at Formal Step A caused "great trauma, stress and anxiety on the Grievant's." However, no testimony (evidence) was offered to substantiate that claim. Additionally, there was no testimony or evidence to demonstrate whether the Grievant's were, or were not, due anything to make them "whole." As such, that remedy request is also dismissed. While Management may have violated Article 26 in the past, they have only violated this settlement agreement before once. It is inappropriate, in my view, to award monetary damages where no evidence of prior violations of the settlement have taken place and merely as a proactive "incentive for future compliance". Future violations of the agreement may warrant monetary damages, but it is not appropriate in this instance.
REMEDIE$ In all cases we first want to return the grievant to the position he/she would have been in if the violation had not occurred. Two goals to focus on when requesting a remedy are: 1. Stopping the violation from occurring in the future 2. Making the grievant whole
REMEDIE$ In all cases we first want to return the grievant to the position he/she would have been in if the violation had not occurred. Two goals to focus on when requesting a remedy are?
REMEDIE$ 1. Stopping the violation from occurring in the future 2. Making the grievant whole
REMEDIE$ In a contract grievance the first part of a standard remedy request is: o cease and desist Previous cease and desist orders within your installation will help guide and strengthen your remedy request in future grievances for the same violation. Show the history!!
REMEDIE$ In a contract grievance the second part of a standard remedy request is: make the grievant whole What are some types of contractual violations that could incur a make whole remedy?
REMEDIE$ Denied Annual Leave Denied Sick Leave Forced/Denied Overtime Denied Mileage How do we get them paid???
Lump Sum Remedies You can request a specific monetary amount. Management can process in GATS usually within one to two pay periods. They are also good when there isn t a monetary remedy that requires work hours to be paid.
REMEDIE$ Time off as a remedy Administrative Leave Some arbitrators have refused to grant Administrative Leave as a remedy because of the argument that Administrative Leave can only be granted under the conditions enumerated in ELM Section 519. The Union has been successful receiving Admin Leave for repeated violations of Article 8, Denied Annual Leave, Carriers being forced to work over the limitations in 12-60 limitations of Art. 8.5.G. HISTORY!! HISTORY!! HISTORY!! HISTORY!!
REMEDIE$ There are times when additional remedies are needed to attain future compliance but: Do not use P words.
REMEDIE$ Additional compensatory remedies should never be referred to as a punitive remedy, a penalty , or a punishment to management. The idea of additional compensatory remedies is to encourage future compliance .
REMEDIE$ The third part of a standard remedy request for a contract grievance is: or whatever remedy the Step B team or an arbitrator deems appropriate. This language should be in EVERY grievance file. This will give the union the flexibility to adjust the remedy requested in a case at the later steps of the grievance procedure (if needed).
The first part of a discipline remedy request is: To rescind the discipline The second part of a discipline remedy request is: To expunge the discipline from all employee records and files. Expunging the record means to wipe the Grievant's record clean of any mention of the discipline.
The third part of a discipline remedy request is: make the grievant whole for all lost wages and benefits as a result of this action, to include overtime and . interest at the federal judgement rate (MOU Back Pay 2014 JCAM page 16-4)
The fourth part of a discipline remedy request is: or whatever remedy the Step B team or an arbitrator deems appropriate. Again, this covers all the bases in terms of remedy and will allow the union the flexibility to adjust the remedy in later steps of the process if necessary.
The standard remedy request in a discipline case should be: Rescind and expunge the discipline (LOW, 7-Day Suspension, NOR, etc.) dated _____, with a charge of _____, from all employee records and files, and otherwise make the grievant whole for all lost wages and benefits as a result of this action, to include overtime and interest at the federal judgement rate, or whatever remedy the Step B team or an arbitrator deems appropriate. This request covers all aspects in very simple language.
Avoid lump sum payments when making a grievant whole if they have been off the clock in a non-pay status for an extended period of time. The grievant will submit a PS Form 8038 (Employee Statement to Recover Back Pay) Management will submit a PS Form 8039 (Back Pay Decision/Settlement Worksheet) This will insure that all lost wages and benefits are recovered.
If you have any questions about an appropriate remedy, SEEK ADVICE!
Settlements * What is a Settlement? What are some levels of settlements?
Settlements Informal A settlements Formal A settlements DRT Decisions Pre-Arbitration settlements Regional Arbitration decisions National Arbitration decisions/ Step 4 s
Settlements Are settlements binding? Do settlements set precedent?
Settlements JCAM 15.2 Informal Step A (b) (b) In any such discussion the supervisor shall have authority to resolve the grievance. The steward or other Union representative likewise shall have authority to resolve the grievance in whole or in part. The local parties are not prohibited from using the Joint Step A Grievance Form to memorialize a resolution reached at an Informal Step A Meeting. No resolution reached as a result of such discussion shall be a precedent for any purpose.
Settlements JCAM 15.2 Formal Step A (e) (e) Any resolution of a grievance in Formal Step A shall be in writing or shall be noted on the Joint Step A Grievance Form, but shall not be a precedent for any purpose, unless the parties specifically so agree or develop an agreement to dispose of future similar or related problems. If the grievance is resolved, a copy of the resolution will be sent to the steward and supervisor who initially were unable to resolve the grievance.
Settlements JCAM 15.2 Step B A Step B decision establishes precedent only in the installation from which the grievance arose. For this purpose, precedent means that the decision is relied upon in dealing with subsequent similar cases to avoid the repetition of disputes on similar issues that have been previously decided in that installation.
Settlements - AWARDS Arbitration Expedited Arbitration Awards Regular Arbitration Awards
Settlements - AWARDS JCAM 15.4.C.4 No decision by a member of the Expedited Panel in such a case shall be regarded as a precedent or be cited in any future proceeding, except to enforce its terms, but otherwise will be a final and binding decision. M-01384 We also agreed that a non-citeable, non-precedent settlement may be cited in arbitration to enforce its own terms.
Settlements - AWARDS Arbitrations Regional Arbitrations Final and Binding Persuasive value for Installation and other Installations National Arbitrations Binding Set Precedent Nationally
Settlements - AWARDS JCAM 15.4.A.6 All decisions of an arbitrator will be final and binding. All decisions of arbitrators shall be limited to the terms and provisions of this Agreement, and in no event may the terms and provisions of this Agreement be altered, amended, or modified by an arbitrator. Unless otherwise provided in this Article, all costs, fees, and expenses charged by an arbitrator will be shared equally by the parties.
Settlements - DRAFTING Do s Don ts Use PS Form 8190 or Local Settlement Form Avoid Lawyer Talk Be the Draftsman of the Settlement Avoid Boiler Plate Language All Settlements are in Writing (Legible) Avoid P words Penalty Punitive Keep it simple (Sometimes less is More) Don t put off Signing the Settlement Have Someone else Proof Read Your Settlement Don t Forget to Date the Settlement If the Settlement is precedent setting, Say so Don t put your Settlements on Social Media
Settlements Boiler plate language Solely to resolve this grievance and without prejudice to the position of either party in this or any other case, the grievance is resolved as follows. It is further agreed that the above settlement is reached on a non- precedent basis: does not constitute a waiver of either party s position on similar cases, and is not to be cited or referenced by either party in future cases which may arise.
Settlements The above constitutes a complete and final settlement of the referenced issue and is accepted as a complete settlement of this grievance. Let s take a look at some settlement examples.
Settlements The parties agree that the Notice of 14 (NTO) Calendar Day Suspension dated March 25,2023 and issued to Letter Carrier _______________for "FAILURE TO SATISFACTORILY AND/OR PROPERLY PERFORM ASSIGNED DUTIES" shall be rescinded and removed from all employee records and files 6 months from date of incident as stated in the Notice of 14 (NTO) Calendar Day Suspension referenced above provided no same or similar discipline is issued between now and when the subject discipline is scheduled to be rescinded.
Settlements The parties agree that the disciplinary Notice of fourteen (14) day no-time-off suspension dated March 25,2023 for "Failure to Satisfactory and/or Properly Perform Assigned Duties" shall be rescinded and expunged from all employee records and files on __________ . (Insert Date)
Settlements The parties agree the following carriers will start the next quarter with the following amounts. Ben Carson (-30) Ted Thomas (-20) Judy Jones (-15) Paul Piper (-17) Ernest Banks (-23)
Settlements The parties agree the following Letter Carriers will start the third calendar quarter of 2023 with a negative balance to allow management the opportunity to provide make-up opportunities during the third calendar quarter. Ben Carson (-30) Ted Thomas (-20) Judy Jones C (-15) Paul Piper (-17) Ernest Bankes (-23) The parties further agree that if at the end of the third calendar quarter, the above referenced carriers are not within 10 hours of the individual with the highest overtime hours, the above carriers will be monetarily compensated at the overtime rate for all hours outside of the 10 hour leeway.
Settlements Proofread Proofread Proofread
Settlements Management will cease and desist providing the union with all properly requested information. The Letter of Warning dated 2/2/2016 will be removed from the file on 2/2/2015 The emergency placement will be removed from all records immediately. In addition the grievant will be made whole for all lost wages and benefits for the date of the incident.
Settlements Questions?
