What is a Grievable Issue?
The question of “what is grievable” presents itself to advocates on an almost daily basis. Although it would be impossible to list all grievable and non-grievable issues due to the very fact that each instance is unique and must be treated as such, it is helpful to understand certain guidelines of the grievance process. This may not answer all of your questions concerning grievability, but it will hopefully clear up some confusion. Remember, if there is any question regarding the grievability of an issue, a member should speak to his or her Building Rep first. Also, please keep in mind that the grievance procedure is driven by a timeline, and failure to act in a prompt manner may result in your grievance being ruled “out of time”.
By definition, a grievance is a “claim by an employee or the Association based upon the interpretation, application, or violation of policies, agreements, and administrative decisions affecting an employee, group of employees, and/or the Association”. There are typically four major recognized categories of grievances, which are: violation of the agreement (an act of ignorance, carelessness, error, omission, or commission by the Board or its agent which is known to be contrary to the terms of the collective bargaining agreement (CBA); disagreement of interpretation (the facts of the issue are usually clear and not in dispute, but the grievance comes from a dispute in the interpretation of the language of the CBA); dispute of fact (the parties agree on the meaning of the language of the CBA, but the issue is whether the alleged violation of the CBA did or did not occur, and equity disputes (usually based on the Association’s claim that the Board or its agent has abused its discretion, or exercised a right in an arbitrary, capricious, or discriminatory manner).
In an attempt to further narrow down the breadth and scope of this definition, a good rule of thumb in determining whether an issue is grievable is if you answer “yes” to any of the following questions:
- Is it a violation of the contract (including arbitration awards)?
- Is it a violation of the law?
- Is it a violation of past practice?
- Is it a violation of management’s own rules?
- Is it an inherent employer responsibility, such as health or safety?
- Is it discriminatory treatment compared to the way other employees are treated?
Notice that a claim can be the basis for a grievance, even if there is no explicit provision in the CBA which seems to establish the claim. The CBA includes legal provisions (and the history of labor law imputes to all agreements certain assumptions) which make it possible to files grievances in a number of other areas.
Two last points to keep in mind are that typically, member versus member gripes, personality clashes with management, a dislike of managerial procedures, and claims that take issue with inherent management prerogatives are non-grievable.
Finally, keep in mind that there are employment rights that each of us have which are established in places other than the CBA. Examples would be our pension rights and tenure rights of teachers and secretaries. In such cases, enforcement of our rights is accomplished not through a grievance under the CBA, but through a different legal process, perhaps a petition to the Commissioner of Education or a claim filed in state or federal court. Needless to say, the REA and NJEA provide assistance to our members in seeking legal remedies not just through grievances but in all possible legal venues.
Hopefully, this helps clear up some confusion on the process of identifying a grievable issue.