Employee’s Efforts to Use Grievance Procedure Without Union’s Approval Don’t Quite Work Out

The collective bargaining agreement (CBA) is an agreement between a group of employees (or one employee, in some situations) and an employer.  In exchange for wages, benefits, and job protection, an employer gets a peaceful workplace from its employees for the duration of the agreement (yeah, right).  It is only those parties who are subject to the terms of the CBA and receive its benefits.

In the arbitration between Jonathan Witucki and Ramsey County, an employee violated the terms of his Last Chance Agreement (LCA) and was informed of the employer’s intent to terminate his employment as a corrections officer.  Following the notice, the employee’s private attorney responded that the employee would like to proceed with the Loudermill hearing, and requested a grievance.  The County granted the request for the Loudermill, but responded that it had not received a grievance from the employee’s union.  Following the hearing, Mr. Witucki was told by the employer that he would not be able to proceed with a grievance due to the terms of his LCA, as it included a waiver of grievance rights if he failed to meet the conditions of the LCA.

Despite this advisory, Witucki attempted to grieve his termination through the contractual grievance process, and was informed that the County could not accept any grievances without it being filed by a union representative.  Witucki responded with an e-mail from the Union stating, “You have the Union’s permission to proceed with the grievance at your own expense using your personal legal representation.”  The County rejected this as it did not involve the Union’s participation.  After further back and forth, Witucki’s attorney “demanded” arbitration through the BMS, and that was granted.  The hearing was then bifurcated upon request from the County, with the portion of the hearing dedicated to whether a grievance could be brought under the CBA by a non-party to the agreement.

In her analysis of the case, Arbitrator Miller-Levin noted that in step one of the parties’ grievance procedure an employee allowed to pursue a grievance, and in every other step of the grievance process, it was a requirement that the union bring the case forward.  Furthermore, while he was given permission to proceed with his grievance by his union, it did not provide notice to the County that his attorney was a recognized representative of the Union with the power to process grievances.  On top of this Witucki’s own Union representative testified that he did not give him permission to pursue a grievance under the collective bargaining agreement.

In addressing the grievant’s argument that because he was allowed to have his private attorney present at his Loudermill hearing the County waived its right to object to the grievance, the arbitrator stated, “A Loudermill meeting is not a grievance, arbitration or other process outlined in the CBA.  It is a separate process from the CBA.”

With that, Witucki’s request for an arbitration hearing on the merits of his discharge grievance was denied.  While it would have been nice to have the case dismissed by the BMS prior to it getting to the arbitrator, it was good to see a newer arbitrator’s opinion regarding the arbitrability of grievances that are clearly contrary to the collective bargaining agreement.

As we saw last week and this week (both in cases involving Ramsey County), there are different ways to dispose of a grievance.  The County did great work in both cases of using alternative administrative means to avoid liability to employees.

Arbitration can be a difficult prospect for employers.  If you, or your organization need assistance in navigating through the grievance and arbitration process, contact Wiley Reber Law, for arbitration experience that works.