By. Stuart D. Adams, Esq.,
This article is the second in a series about grievances. It is intended as a general guide only and is based upon the opinion of its author. Anyone seeking to file a grievance or with questions on their grievance process should contact Adams, Ferrone & Ferrone or their legal representative for the purpose of obtaining legal advice specific to their needs.
In the previous article, we took you through the informal “steps” of the grievance process. Those informal steps all lead to the more formal proceeding in the grievance process; the “hearing.”
This article is intended as a general guide to the hearing portion of the grievance process. Again, you must consult with your agency’s grievance process to make sure that you are properly following the procedures. Failure to follow the grievance procedure rules of your agency can result in your losing the grievance.
WHERE DO YOU GO AFTER THE INFORMAL STEPS ARE DONE?
For a few unfortunate Associations out there, the last step in the informal process is the last step (subject, possibly to review by the courts which will be discussed in part III of this series “Judicial Review of the Grievance”). This is the worst kind of process. If you do not have some form of hearing, where evidence is heard before some form of decision maker, you need to negotiate one at the bargaining table.
The majority of agencies, however, have some form of hearing before a person, or group of people, where evidence can be submitted to prove the facts underlying the grievance. It is best to spell out who will hear this and how the hearing will be conducted. This can be done in negotiations at the bargaining table which is the best way to control the process. Otherwise, you may find that the process is forced upon you with little or no control. The types of hearing are varied as discussed below.
The types of audience, or legally referred to as “tribunals,” hearing the grievances are diverse. If you are lucky, you have a single hearing officer/ arbitrator whose decision is final and binding. That means that the decision has significant weight, so much so that the losing party has little chance to appeal the decision to the courts. This is best process because it brings faster resolution to disputes over the terms and conditions of employment which is more often than not to the greater benefit of the Association but there is also a benefit to the agency.
If you win at the Arbitration, the agency is most likely not going to appeal the decision. Of course, the reciprocal is true; if you lose then the likelihood that you will appeal is low. Contesting the binding arbitration decision usually has a low likelihood of success with a large expense. Judicial review can easily run from $5,000.00 to $10,000.00 and that does not include appeals above the initial ruling in the superior court. Thus, both the agency and the Association receive the benefit of finality at a relatively fast pace.
CITY MANGER/COUNTY ADMINISTRATIVE OFFICER/ OR DESIGNEE HEARINGS
For City or County agencies, sometimes the final decision in the hearing rests with the City Manager, The County Administrative Officer or their designee (translated “subordinate” and we know how they will vote!). This is the worst type of process in the long run. Remember, the City Council appoints the City Manger and the Board of Supervisors appoints the County Administrative Officer. You might be thinking that you have a fantastic relationship with the City Council or Board of Supervisors. But that does not last forever.
City Councils/ Board of Supervisors come and go depending on the political climate. One year you may have a unanimous vote, but in one election, you could lose the majority. You are therefore too subject to the political winds of change under this type of process. This can be an uncertain process in the long run.
PERSONNEL BOARDS/COMMISSIONS/HEARING OFFICERS
Sometimes, the Council, or Board of Supervisors can appoint a hearing officer/arbitrator or hearing body to handle the grievance hearings. These are not as bad as the City Manager or County Administrative officer or their designee hearing the case, even if the decision is advisory to the Council or Board of Supervisors.
It is better than the City Manager or County Administrative Officer hearing the case and rendering a decision because, even if it is advisory, the Council or Board will have to review all of the transcripts and evidence before they can change or disagree with the decision. Few Councils/Boards want to take the time to do this. The problem is, they can and sometimes do so the decision is still in jeopardy after the hearing.
Some rules state that the decision of the tribunal selected by the Council/ Board of Supervisors is binding. This is a much better situation than an advisory decision. As with binding arbitration discussed above, this is a more efficient method of disposing of grievances. This is not as effective though, if the Association has no input in the selection of the tribunal. If you have this type of process then, short of negotiating binding arbitration, you should try to negotiate who will hear the grievance.
Typically, you can request that the agency send a request to, for example, the State Mediation and Conciliation Service. This is a State entity created to provide hearing officers to hear public employee labor disputes. They will submit a list of five to seven arbitrators. The best method of selecting from the list is to randomly select who strikes first (e.g. flip a coin) and then take turns striking the names on the list until one name remains and that is the hearing officer. (It is best to have some knowledge of who the arbitrators are and that is where the Association’s legal counsel can help significantly).
Some agencies appoint personnel commissions/boards or panels to hear the case. This has not proven to be an effective method depending on who is selected and who does the selecting. This process is too susceptible to the political winds to be as fair as the selection of a binding decision maker through employer/Association selection. In the short term, if you control the Board or Council it can work but it is vulnerable to the constant political winds of change.
PREPARING FOR THE HEARING
Before the hearing, the Association/ Grievant will want to collect all of the evidence to prove the violation of the MOU, Personnel Rule, Policy and/ or past practice. Evidence can come in many forms: witnesses; documents; computer files; expert testimony; photographs, etc. If possible, whoever created the document, record, photograph etc. should be called to testify as to what it is, how it was created and what it means. If that person is not available, then the person who has the most knowledge about the item should be utilized.
It is possible to demand that the agency turn over documents, records, photos, computer files etc. before the hearing and such demands should be made in writing. Failing a voluntary production of the requested items, subpoenas may be available through the tribunal hearing the case. These are forms, issued by the tribunal, commanding that the agency produce a witness or item of evidence.
Once the evidence is obtained, it should be placed in an organized fashion, usually in chronological order, into a note book. Copies of all items to be introduced should be made so that there is one for the Association, one for the opposing side, one for the tribunal (if there are more than one in the tribunal, enough copies should be made for each member), and one to show the witness.
Witnesses should be interviewed ahead of time. This can be done informally, but some hearings may be so serious so as to warrant the use of a private investigator or depositions (sworn statements to a court reporter before hearings). It is possible to compel depositions before a hearing.
Care must also be taken to make sure that the witnesses will be available at the time of hearing. Witnesses should be consulted as to there availability prior to setting hearing dates and subpoenas should be issued if necessary to compel their attendance.
Expect surprises with witnesses on the day of hearing in terms of availability. You may have to take witnesses out of the order you planned or even ask that the witness be allowed to come back on a different day to testify. This will be easier if you have subpoenaed them ahead of time.
Compared to court proceedings, the grievance hearing is informal. But it is more formal than the steps preceding it. The rules of evidence are relaxed and almost any form of evidence is admitted. The Association/ Grievant bears the burden of proving that the facts underlying the grievance are true. This is the opposite of disciplinary appeals where the agency bears the burden of proving that the underlying facts are true. The facts which must be proven are those which show that the provision in the MOU, Personnel Rule, Policy and/ or past practice, were violated.
It is best to have the proceedings recorded by a court reporter. At the very least, the proceedings should be tape recorded.
“Bearing the burden of proof” means that the Association/Grievant must present their case first. Typically this means that they must give an opening statement. The agency may then give their opening statement or wait until the Association/ Grievant is done with their opening statement and then give it before they proceed.
The witnesses are called and asked questions first by the Association/ Grievant. The agency may then cross-examine the witness. Typically, the parties are allowed to take turns asking questions until both sides are done or the tribunal disallows further questioning.
Evidence, (documents, photos, charts, etc.) is introduced through the witnesses and is subject to objections by the other side. The tribunal runs the hearing and rules on the admissibility of evidence (some tribunals have their own lawyers sitting in to rule on evidence just for them). If evidence is allowed in, it is admitted and can be used to argue the case at the end. If it is excluded, it may not be relied upon by either party in arguing their case.
After all of the evidence is in, the tribunal will rarely issue a decision on the spot. Most will take thirty to ninety days to render a decision. If that decision is advisory, the body reviewing the decision has a period of time to accept, reject or modify the decision. If they modify or reject the decision, remember, they must review the entire record. Once the decision is rendered, there are various avenues of review in the courts.