The grievance process is one method of resolving disputes between workers and their employers, usually in the context of a collective bargaining agreement. This entry describes the background of grievances and how they typically work.
Currently, more than 40 states have enacted legislation guaranteeing public employees, including teachers and other school staff, the right to engage in collective bargaining. These collective bargaining laws allow public school teachers the right to organize and join employee labor organizations. Statutes in states that have passed public employee collective bargaining legislation discuss in great detail the legal rights and responsibilities of school board members and school employees, including rules for the formation of bargaining units, description of mandatory and prohibited subjects of bargaining, and procedures for alternate dispute resolution. However, other states require school boards simply to “meet and confer” with bargaining units, with no formal legal obligation to act. Moreover, three states outlaw bargaining altogether. While state labor laws involving the rights of school employees to collectively bargain vary by state, typical collective bargaining statutes include provisions dealing with a duty to negotiate in good faith, appeals procedures, and provisions detailing the ability of teachers to strike.
When collective bargaining agreements are developed between teachers and school boards, there is always the possibility that the parties will disagree over how to interpret specific contractual provisions. Insofar as the pursuit of litigation in labor disputes has numerous drawbacks, including expense and time, the use of grievance procedures is actively encouraged as an effective alternative dispute resolution technique to settle labor-related disputes in the arena of public education.
In the American legal system, there is a strong inclination to settle labor-related disputes through formal appeals, or grievance processes. Historically, there is favoritism in the American legal system to settling labor disputes through alternative dispute resolution, such as grievance arbitration in which disputing parties agree to be legally bound by the decision of a third party as an alternative to judicial review. Three famous U.S. Supreme Court cases, United Steelworkers of America v. American Manufacturing Company (1960), United Steelworkers of America v. Warrior & Gulf Navigation Company (1960), and United Steelworkers of America v. Enterprise Wheel & Car Corporation (1960), collectively demonstrate the legal connection between federal labor law and state collective bargaining statutes.
How Grievances Work
The majority of states that currently have collective bargaining between teachers and their school boards permit and even mandate the use of grievance procedures when disputes arise over contractual agreements. When contractual negotiations are not effective, several alternative methods to litigation may be used to facilitate a resolution of the various parties’ disagreements. Some of the typical mechanisms of alternative dispute resolution found in grievance procedures include mediation, fact-finding, and binding-interest arbitration.
Mediation involves the use of a neutral, third-party mediator. Typically, an individual mediator is selected by a state labor relations board or by the mutual agreement of school boards and the bargaining units for school employees. While the legal authority of mediators is limited, some states require that the parties exhaust mediation dispute resolution efforts before they can either proceed to fact-finding or terminate the bargaining process. Mediation can be either voluntary or required by law.
Fact-finding, or advisory arbitration, involves the use of a neutral, third-party intermediary, the fact finder. As with mediation, a fact finder is usually chosen by the state labor relations board or by the mutual agreement of school boards and the bargaining units representing school employees. A fact finder can conduct hearings and collect evidence from the parties involved in the collective bargaining agreement as well as outside sources. Although a fact-finder’s recommendations are nonbinding on the parties, the factfinder’s report is available to the public, and some cases provide an impetus to resolve disputes. As with mediation, fact-finding may be either voluntary or required by state statute.
An arbitrator is selected either by state labor relations boards or by mutual agreement of school boards and bargaining units representing school employees. In contrast to the alternative dispute resolution techniques of mediation or fact-finding, an arbitrator’s decision is binding on all parties in a collective bargaining agreement. Some of the common contractual disputes handled under arbitration include issues such as a reduction of a teacher’s salary, conflicts involving teacher evaluations, labor definitions of what constitutes a normal workweek for teachers, and termination of teachers’ paid extracurricular activities. While disagreements arise over whether specific labor issues are subject to arbitration, no current state allows the arbitration of prohibited subjects of bargaining.
If school boards and unions ultimately fail to reach consensus on a new collective bargaining agreement before the previous one expires, most states require that the terms and conditions of the old collective bargaining agreements be maintained. Courts in many states, for example, have ruled that this applies to the continued payment of employees’ annual salary increments. Moreover, if school boards and unions have exhausted all alternative dispute resolution procedures, many states permit the boards to implement their last best offers as unilateral contract, or obligations are imposed only on one party on acceptance by performance of a condition. Courts have held that school boards may not terminate negotiations or refuse to bargain in good faith simply to implement a unilateral contract.
Kevin P. Brady
- Brady, K. P. (2006). Collective bargaining. In C. J. Russo & R. D. Mawdsley (Eds.), Education law (Chap. 3). New York: Law Journal Press.
- Dodd, V. J. (2003). Practical education law for the twentyfirst century. Durham, NC: Carolina Academic Press.
- Strom, D. J., & Baxter, S. S. (2001). From the statehouse to the schoolhouse: How legislatures and courts shaped labor relations for public education employees during the last decade. Journal of Law and Education, 30, 275–303.
- United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564 (1960).
- United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593 (1960).
- United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574 (1960).