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A PSC GRIEVANCE PRIMER


D. NICHOLAS RUSSO, DIRECTOR OF LEGAL AFFAIRS
PROFESSIONAL STAFF CONGRESS/CITY UNIVERSITY OF NEW YORK

AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, AMERICAN FEDERATION OF TEACHERS, NEW YORK CITY CENTRAL LABOR COUNCIL, NEW YORK STATE AFL-CIO, NEW YORK STATE UNITED TEACHERS

copyright 1981 Professional Staff Congress/CUNY


FOREWORD

Enforcing the contract is one of the most important functions of the union. The vehicle for enforcement is the contract's grievance machinery. The union invests a large portion of its resources in this effort and assumes responsibility for carrying it out. Its effectiveness, however, is influenced by the cooperation of an informed membership.

This booklet is aimed at clarifying the broad outlines of the complex grievance process. It is designed especially for those considering recourse to a grievance so that their participation in the process will help the union advance their interests and contribute to the likelihood of a successful outcome.

Dr. Irwin H. Polishook
Past President, Professional Staff Congress/CUNY

 

 


1. Should I file? The limits of the grievance procedure

A grievance: 'to file or not to file?' is not the first question. Knowing what is cognizable as a grievance is.

An understanding of the parameters of this process can go a long way toward conserving one's energy and alleviating the emotional stress and frustration that inevitably follow the ultimate loss or withdrawal of a futile grievance. It cannot be stressed too strongly at the outset that any injustice one perceives is not necessarily grievable.

This discussion properly starts with the contract's definition of a grievance because that definition determines the issues that the management hearing officers and, ultimately, the neutral arbitrator, who sits as the decision-maker of those grievances that get to Step 3, can and cannot rule upon. The contract in Article 20.2 defines a grievance as:

. . . an allegation by an employee or the PSC that there has been:(1) a breach, misinterpretation or improper application of a term of this Agreement; or (2) an arbitrary or discriminatory application of, or a failure to act pursuant to the Bylaws and written policies of the Board related to the terms and conditions of employment.

 

While this language at first blush appears broad, upon reflection it requires a potential grievant to be able to point to a specific contract section, university bylaw or written policy (and the latter two must be related to "terms and conditions of employment") and to have that potential grievant say, "This provision or that bylaw has been violated or arbitrarily applied with respect to me."

An example: Article 18 requires that non-tenured faculty members receive an annual evaluation. If no such evaluation is given by March 1st and if the individual has filed the "conference request" within ten working days thereafter and if it has gone unanswered, then a valid grievance exists.

Another example: If a candidate for reappointment or promotion requests reasons under Article 9 from the president for the latter's rejection of that candidacy and the president fails to respond within ten school days or responds inadequately, a grievance may be filed. Or if a chairperson tells a department member, "Your area of research is inappropriate for our college," and then fails or refuses to give guidance as required by Bylaw 9 as to why and to what instead would be acceptable, one can file a viable grievance.

Such grievances, however, rarely exist in a vacuum. Usually they appear in the context of the failure to be reappointed or promoted. Constant vigilance of one's rights before such an eventuality is preferable, however, because it may short-circuit that unwanted result. If you wait to complain at the time of your non-reappointment - three years after an annual evaluation should-have-been-but-wasn't held, for example - you may find that an arbitrator will minimize such a contractual violation because the contract required you to object to not receiving it and, in any case, you were subsequently reappointed.

Often, however, an individual who is receiving reappointments may not want to rock the proverbial boat by filing a grievance concerning seemingly technical or trivial violations. It is at this point of recognition and before filing a grievance that the PSC local chapter's grievance counselor should be consulted. What may seem trivial to you may be recognized by the PCS's campus grievance counselor's trained perspective as the potential beginning of a greater problem. And perhaps she/he may be able to suggest a way to resolve it without going to the mat, by filing instead an informal complaint, for example. The use of this contractually provided procedure might serve to eliminate the difficulty without bringing anyone's defensive mechanisms into play. But remember the grievance counselor can only offer advice. You must make the decision.

It is of paramount importance when deciding whether or not to file a grievance to know and understand that matters of "academic judgment," as defined in the contract, are not grievable. If you feel confident your credentials are superior to all other candidates up for reappointment or promotion or to everyone previously granted tenure or promotion and there is no provable contractual violation or arbitrary application of a university bylaw or written policy that operated to the prejudice of your candidacy, you will not and cannot obtain relief in the grievance process. The place to establish academic standing and credentials is in the academic committees and with the college president. Even the courts have adopted a hands-off policy on intervening in matters of academic judgment. As frustrating as this may appear, understanding it now will save you much energy, stress and, perhaps, financial expense involved in a grievance that you later discover to be a fruitless exercise. Following the pages of the Clarion for articles concerning PSC arbitration victories will sharpen your vigilance with respect to your rights.

While the matter of the academic merit and credentials of a candidate is itself specifically excluded from review in the grievance forum, the union through its grievance procedure protects the integrity of the academic decision-making process. By guaranteeing to each candidate a fair and impartial observation and evaluation procedure and a consideration devoid of animus and improperly generated documents, the grievance procedure directly contributes to an atmosphere in which a candidate's merits and credentials can be fairly considered and judged.

It is also critical to remember that a grievance must be filed within thirty days, excluding Saturdays, Sundays and legal holidays, from the time you first become aware of the action against which you are grieving. When in doubt, consult your PSC campus grievance counselor. If you don't know who she/he is, call the PSC office (212-354-1252) and we will tell you who it is and how she/he can be reached. If you have doubts about filing a grievance or how to frame it and the time is running out, file it anyway; it can always be withdrawn. If you're not sure which violations to cite, put down at least one violation that you are aware of and file the grievance to protect its timeliness; you can always amend and refine the grievance later.

Article 20 of the PSC-CUNY contract sets forth the procedures of the grievance process. Its practical application to each of the steps will be described in the next section.

2. The first two steps - Understanding the 'management' steps

The grievance procedure is the keystone article of the contract because it is the provision by which the contract is enforced. The remaining sections cannot be assured of implementation without it. It is a dispute-resolution mechanism that enables the union to seek redress for violations or misinterpretations of the contract, and university bylaws and written policies. After the employer is offered the opportunity to adjust the dispute in the initial steps, the union can bring it before an impartial party for a binding decision when it remains dissatisfied with management's position.

Article of the current PSC contract contains a three-step grievance procedure, with an optional informal complaint mechanism prior to the first step. A grievance is initiated at the college level when the aggrieved person, or the union acting on his/her behalf, files with the president a written statement of the nature of the complaint, citing the contract sections, bylaws and/or written policies allegedly violated. The grievance must be filed within thirty days, exclusive of weekends and legal holidays, after the violation became known. "Legal holidays" are those declared by the New York State Legislature, not university vacation periods.

Each campus as well as the cross-campus chapters, the CUNY Central Office, the Manhattan and Brooklyn Educational Opportunity Centers, and the Hunter Campus Schools, has at least one PSC grievance counselor to assist in framing, filing and presenting the grievance. If the grievance is not satisfactorily resolved at Step 1, the college level, it may be filed to Step 2, where it is heard by a designee of the chancellor.

The hearings at the first two steps usually consist of an oral presentation by the PSC's grievance counselor to the management designee. Written documents often pass hands from both sides of the table. On occasion, witnesses are produced to answer questions.

While a grievant may expect to receive justice from the college president's designee at Step 1 or from the chancellor's designee at Step 2, she/he is more than likely to be disappointed. One must understand, however, that at the first two steps of the grievance procedure, the hearing officer is a representative of management and more often than not perceives his/her role to be the defense of the managerial action that gave rise to the grievance.

Enlightened employers often resolve legitimate grievances in the initial states of the procedure, thereby avoiding the expenditure of time and effort in going to arbitration. Unfortunately, the history of our unit reveals that this employer has often preferred to frustrate rather than to ameliorate. While there have been some notable exceptions, the result of this approach is a substantial backlog of cases awaiting arbitration and an inordinate expenditure of resources, by both management and the union, arbitrating matters that could and should have been adjusted earlier.

The accumulation of large numbers of grievances pending arbitration by no means implies that the PSC does, or should, take ever, case to arbitration. The criteria for whether or not the PSC takes grievance to arbitration are the merits of the case. The focus is no on whether the grievant suffered some indefinable in justice and the sympathy it evokes, but rather, on whether there was a contractual violation and what is available to prove it.

Long ago, the United States Supreme Court decided that a union need not take every case to arbitration. In fact, taking weak cases hurts the other members of the bargaining unit by slowing down the process for persons with legitimate, provable cases and by eliciting harmful arbitral decisions that have a negative impact on untold others.

No one perceives his/her grievance as weak or unworthy, and often no one can determine this when a potential grievant first complains to a grievance counselor. To enable the counselor to properly assess a situation, the grievant must cooperate with the counselor by assembling and organizing all relevant documentary materials. The grievant should inspect his/her personal file at the earliest possible time, making an index of every piece of paper in the file and photocopying relevant documents. A written chronology of pertinent events should accompany the file materials. This will facilitate a conference with the counselor and will assist the latter's presentation at the Step 1 and Step 2 meetings.

While sometimes these first two steps appear perfunctory or destined to result in denial, they are a useful and vitally important part of the process. For it is in these two stages that both sides have the opportunity to investigate and learn the other side's case. It is only by the free exchange of information and arguments that management can decide if it agrees with the grievant and that the union can determine if this is a case worthy of arbitration should the grievance be denied at Steps 1 and 2.

3. From Step 2 to 3 - Two questions

The two preceding sections discussed the first two steps in the grievance procedure. Before examining the final, arbitration step - and this will be the subject of the next section - it is important to understand how the union evaluates which cases it files to arbitration and who can make a determination to take a grievance to arbitration. These are perhaps the most frequently asked about and misunderstood aspects of the grievance procedure. The controlling rule regarding ownership of a grievance stems from a 1975 arbitrator's interpretation of contract language in the grievance article. Simply stated, if the PSC represents the grievant at Step 2, then the union and only the union can file the case to Step 3, arbitration, and argue the case before the arbitrator. If the grievant argued his or her own case at Step 2, or had a non-PSC counsel or representative do so, then only the grievant can decide whether to take the case to arbitration. Once the Step 2 level has been completed, ownership of the grievance cannot change.

What may seem an ominous choice - to go with the union or on one's own - should diminish in magnitude after weighing the alternatives.

When a grievant goes "private," he is truly on his own. First he must secure an advocate since he knows that "a lawyer who represents himself has a fool for a client." To find a lawyer is not difficult; to find the right one can be a chore. While many of us have a cousin or brother- in-law who is a lawyer, he or she is more likely engaged in prosecuting criminals, representing performers or drafting commercial contracts than representing CUNY grievants. And while cousin Charlie may be a senior partner and making a million dollars, what does he know about the PSC-CUNY collective bargaining agreement? Has he heard of "The Retrenchment Guidelines"? Does he think the Max-Kahn Report is a nightly newscast? The wrong answer to any of those questions may have lasting impact on the outcome of the grievance. And cousin Charlie's adversary at the arbitration table will be any one from the staff of CUNY attorneys who do nothing all day but read and write CUNY, PSC, CUNY.

The PSC, on the other hand, likewise represents its grievants with someone who eats, sleeps and drinks PSC, CUNY, PSC.

The unique nature of labor relations in academe cannot be overstated. It is clearly a specialty within a specialty. An attorney representing sensing a "private" grievant who doesn't know about a particular policy or who isn't able to grasp its implications due to his different perspective doesn't hurt only his client. This ignorance may culminate in an arbitral opinion harmful to others on the instructional staff and may even result in a damaged contract provision, difficult if not impossible, to remediate. This is not just a theoretical proposition. It has happened, and it must be avoided.

On occasion, a grievant who has gone on his own will say he did so because the grievance counselor could not assure him that the union would take his case to arbitration. While this is true, it sheer folly to use that as the basis for going "private."

The PSC does not take to arbitration every grievance the university has denied. It is less well known, but of great import, that, the highest courts and labor tribunals in the country have recognized that a union has no duty to take every grievance to arbitration. A union must determine whether a grievance is meritorious based upon an evaluation of its issues together with the available evidence.

The PSC's Executive Council Grievance Policy Committee, with the advice of the union's Director of Contract Administration, thoroughly reviews all Step 2 denials where the grievant was represented by the PSC and determines which cases will be arbitrated. Before that committee considers a case, however, the grievant is contacted and given the chance to submit pertinent documents and arguments. The grievance counselor who presented the case at Steps 1 and 2 likewise supplies the committee with information. Prior arbitration awards are also considered.

Once reviewed, the committee makes its decision. A determination not to take a particular case to arbitration should not be read by the grievant as another rejection of his or her academic credentials. As stated earlier, academic standing is not one of the ingredients in determining the merits of a grievance. Nor should a grievant assume that the union wouldn't like to champion his cause. Arbitrating frivolous, quixotic or other nonmeritorious cases, however, can result in negative awards that have a serious impact on significant numbers of instructional staff members. In fact, the union would be compromising the rights of its other members if it were to take such cases.

If the committee determines that a case is meritorious, it will be taken to arbitration. The union then processes the papers, pays all filing fees and arbitration costs, and provides competent representation without charge. By opting for union representation, you make your life easier and help safeguard the provisions of the contract for you and for others.

4. Arbitration - The last step

Arbitration is the third and last step of the grievance procedure. That a grievance has come this far means that management, in the lower steps, either rejected the union's contentions or offered an insufficient remedy, and that the union determined that this case should be taken before an impartial decisionmaker.

Each of the arbitrators on the PSC-CUNY panel - any one of whom may be designated by the parties to hear a specific case - is jointly selected by the union and the university, and each serves under the rules of the American Arbitration Association.

Unlike Steps 1 and 2, an arbitration hearing is held on neutral territory, at the offices of the AAA. The arbitrator is paid 50 per cent by the PSC and 50 per cent by the university. (When a grievant is not represented by the PSC at arbitration, the "private" grievant and the university split the costs, not the PSC.) He or she conducts a full hearing during which opening and closing statements are made by each side, witnesses are examined and cross-examined, and documents are admitted into evidence. Approximately thirty days after the completion of the hearing, the arbitrator renders an award, which can be enforced in the courts if the employer refuses to implement it.

Quite understandably, grievants whose cases are going to arbitration want to know what they can win at arbitration. In this regard, the unique nature of labor relations in academe, referred to in earlier sections, must be re-emphasized. While an arbitrator in an industrial setting can usually reinstate with back pay an employee who he has found was wrongfully discharged, there are certain limitations on an arbitrator's power that are unique within the university. These constraints are directly connected to the concept of academic judgment.

Under the provisions of our contract, when grievances concern the failure to be reappointed or promoted, the arbitrator must limit his/her determination to whether or not the grievant received a valid academic judgment solely from the procedural standpoint. If the arbitrator determines that the contractual and/or bylaw provisions regarding personnel decisionmaking were violated or were arbitrarily and discriminatorily applied such that the resulting negative academic decision was tainted, the arbitrator must sustain the grievance. Since the contract forbids an arbitrator from making his or her own assessment of the grievant's academic background, record and credentials, such considerations never enter the arbitral forum.

Once the arbitrator has determined that a particular grievant's candidacy could not have received a valid academic judgment because the process leading up to that decision was undermined, the arbitrator's remedy is not reappointment or promotion. (The significant exception to this is when the arbitrator decides that a further period of service is necessary to correct the violations found to have been the basis for sustaining a non-reappointment grievance. In such a case, the arbitrator can recommend, and the university must accept, reappointment for up to one year but only in cases where tenure or the Certificate of Continuous Employment would not result.) Instead, he or she usually remands the matter of the grievant's reappointment or promotion to a select faculty committee. It is this committee that the university, together with the PSC in the collective bargaining agreement, charged with the making of the fair academic judgment which the arbitrator ruled the grievant did not receive at the college and probably would not receive if the matter were remanded there.

For several years, the university sought to frustrate the grievance process by sending favorable decisions of select faculty committees to the chancellor, who often refused to implement them. An appellate court ruled, however, that the chancellor was not empowered to make such decisions, and the court remanded decisions of select faculty committees to the CUNY Board of Trustees. Under the current contract, the chancellor is contractually bound to recommend the decision of the select committee to the trustees.

If the arbitrator's decision is not favorable to the grievant, the question arises, Can I appeal anywhere? The answer is a qualified "no." The state law affords great weight and deference to arbitrators' awards, and the law provides for few and narrow grounds for overturning, or vacating, an award. Some of the permissible reasons for seeking to vacate an award include the corruption, fraud, misconduct or partiality of the arbitrator or an indication that the arbitrator went beyond the scope of the power given to him/her by the parties to the collective bargaining agreement. In general, the court will not overturn an arbitrator's findings of fact or interpretation of the provisions of the contract even if the court itself might have found differently.

As we have seen, the grievance route in the university setting is long and arduous. Only with a strong grievance procedure are the provisions of the collective bargaining agreement enforceable. The grievant's time and emotional investment combined with the union's expertise and financial commitment make the contract a living and meaningful document.

This is adapted from a series of articles that appeared in the September 1979, November 1979, February 1980 and April 1980 issues of the PSC Clarion. For further information please call the PSC office Monday through Friday at 212/354-1252, or email comments and questions to cage.psc@worldnet.att.net .

Posted on April 7, 1998. Copyright 1981, Professional Staff Congress/CUNY.

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