Photo credit: Myra Klarman
Contract disputes between orchestra managements and musicians are nearly always resolved pursuant to the grievance and arbitration process. I am not aware of any ICSOM orchestra’s collective bargaining agreement (CBA) that does not contain a grievance and arbitration clause. Nonetheless, the process strikes many musicians as mysterious. One of the questions I hear most frequently is who, exactly, has the right or ability to file a grievance—and what happens next.
Some basic explanation is helpful. A CBA is a contract between two parties: the employer on one hand, and the union on the other. (It is not, as some may believe, a contract between the employer and the musicians, or the orchestra committee, or the musicians’ player association.) Because the employer has recognized an AFM Local as the exclusive bargaining representative of the musicians, it is always the Local that is the other party to the contract.
The question thus arises as to what happens when the employer violates the CBA. Generally, if one party to a contract breaches it, then the other party can file a lawsuit in court (or go to arbitration if the contract contains a mandatory arbitration clause). Sometimes, the breach of a contract by one party allows the other party to stop performing its own obligations under the contact.
The situation is more complicated in the case of unions. Federal law actually contemplates federal-court lawsuits between unions and employers. Section 301 of the Labor Management Relations Act of 1947 vests jurisdiction in federal district courts to adjudicate lawsuits for violations of a CBA—even without any minimum “amount in controversy” (i.e., the dollar amount of damages). Clearly, however, it would not be practical for unions and employers to march into court every time a dispute arises over how to interpret a clause in the CBA. Nor would our economy be able to function if management’s breach relieved its employees of their own obligation to work; we can’t have a “wildcat strike” over every purported contract violation.
For that reason, a grievance and arbitration procedure is incorporated in nearly every CBA in nearly every industry. The procedure typically contains a series of steps that are designed to facilitate the speedy resolution of disputes. To that end, the steps begin informally and become progressively more formal. The first step often requires a simple discussion of the problem between the grievant—i.e., the union or a particular employee or employees with a complaint—and a representative of management. If that doesn’t settle the dispute, then the second step might require reducing the grievance to written form and delivering it to management, which then requires a written response. The third step often entails a “2+2” meeting: two representatives from the union and two from the employer (usually fairly high-ranking representatives) meet in person to hash it out. If that still doesn’t work, then the final step provides for submission to binding arbitration (often under the auspices of the American Arbitration Association). The arbitrator’s award is final; though it can be tested in court, courts offer a great deal of deference to arbitrators’ decisions and will not overturn an award unless it is truly horrible. For that reason, the arbitrator’s award is nearly always the end of the process.
This process is simpler and more efficient than going to court, and operates as a quid pro quo for a no-strike/no-lockout clause. It reflects an agreement between the employer and the union to handle all disputes in the manner they have mutually chosen—predictably, simply, and efficiently—so as to not disrupt the workplace. And although the above description reflects a typical procedure, the parties are always free to customize the steps to their liking, or to add (or subtract) steps. There is no magic formula.
But whatever the employer and the union agree upon, that is the procedure that must be followed. The courts have allowed virtually no wiggle room on this. If the CBA says the parties will arbitrate a dispute, then they have to arbitrate, period—they can’t try to go to court instead. That mandate results from the confluence of several policies inherent in federal law, including: the policy favoring arbitration instead of lawsuits (as expressed in the Federal Arbitration Act and expanded seemingly every day by the current Supreme Court); the policy that gives effect to the method of dispute resolution that the parties themselves have chosen; and the policy encouraging harmonious relations between employers and unions and the efficient resolution of disputes so as to avoid economic disruption.
At this point, you may have noted that I haven’t yet addressed the question that is the very premise of this article: “who gets to file a grievance?”—or even the more basic question, “what’s a grievance?” The answer to both questions is essentially the same: it’s whoever or whatever the parties say in their agreement. For example, some CBAs define a grievance broadly as “any and all disputes between the parties.” Others define it more narrowly as “any dispute arising from this Agreement,” “a claim based on an alleged violation of this Agreement,” or “any dispute arising out of the meaning, interpretation, or application of this agreement.” Some CBAs don’t define the term “grievance” at all.
Whatever the language (or lack thereof), the general rule is that a grievance is a dispute over an action taken (usually) by management that implicates something in the CBA, whether express or implied. A grievance is distinct from an unfair labor practice (ULP), which is certainly a “dispute” between the parties but not one that arises from contract language; rather, ULPs address fundamental aspects of the relationship between unions and employers, like the duty to bargain. (The distinction is not always simple, alas; disputes sometimes involve both a grievance and a ULP, and the interplay of the two raises tricky issues that are beyond the scope of this article.)
Similarly, the CBA can determine who gets to file a grievance. As noted above, the parties to the CBA are the employer and the union (as the representative of the employees). So if the CBA simply says a grievance may be presented by “the aggrieved party” or “either party,” then that is taken literally: the union can file a grievance (and so can the employer, though that is rare), but individual employees generally cannot. If the CBA says “an employee” or “a musician” can file a grievance, then that too is taken literally: any individual musician can present the grievance, even if the union doesn’t. Orchestra CBAs have many variations on this theme. Some explicitly state that a grievance may be filed by “a musician, the Union, or the Orchestra Committee.” Some provide that a musician may file a grievance “with” the orchestra committee, which makes little sense unless the orchestra committee is then empowered to bring that grievance to management. Some leave out the union altogether and mention only the orchestra committee. My view is that even the initial steps of the procedure should involve both the orchestra committee and the union in some way, even if individual musicians are empowered to bring their own grievances. Both the committee and the union need to be in the loop and on the same page as much as possible.
But how far can an individual (or orchestra committee) progress through the steps? Or to put it another way, if an individual musician is permitted to file a grievance, can he or she take that grievance all the way to arbitration regardless of what the union (or the orchestra committee) wants? Usually not. By the time the process reaches the final step—submission to arbitration—the language in the CBA nearly always vests that decision with the union; and in the absence of language specifically allowing individual employees to take the dispute to arbitration, only the union will be permitted to make that determination.
In Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme Court explained why:
[W]e do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. . . . If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined [and] a significantly greater number of grievances would proceed to arbitration. This would greatly increase the cost of the grievance machinery and could so overburden the arbitration process as to prevent it from functioning successfully.
But is that fair? Is there any recourse for the individual if he or she disagrees with the union’s decision not to take a grievance to arbitration?
Enter the flipside of a union’s exclusive representation: the duty of fair representation. The court in Vaca explained that because the system of collective bargaining “of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit,” the law imposes upon a union “a responsibility equal in scope to its authority, the responsibility and duty of fair representation.” In other words, employees in a union workplace give up some rights to deal with or take action against employer on an individual basis; but in return, the union assumes a duty to fairly represent their interests. That duty is not explicitly set forth in any statute, but has been fashioned by the courts as the logical corollary to the union’s status as the exclusive representative of the employees.
That means that when an employee asks the union to pursue a grievance or take it to arbitration, the union determines whether to do so in accordance with its duty of fair representation. Federal jury instructions explain the legal test that is applied to the union’s determination:
The test is basic fairness. So long as the union acts in good faith, it may exercise its discretion in determining whether to pursue or process an employee’s grievance against the employer. Even if an employee’s grievance has merit, the union’s mere negligence or its exercise of poor judgment does not constitute a breach of its duty of fair representation. But where a union acts in bad faith and with hostility, discrimination, or arbitrariness fails to process a meritorious grievance, the union violates its duty to fairly represent the union member who has made the grievance.
Some may say that simply avoiding discrimination and hostility, or refraining from acting arbitrarily, capriciously, or in bad faith, is not a stringent standard. But it puts the focus where it should be: on the union’s actions in evaluating the grievance, not the merits of the grievance itself. Union officers are not judges or lawyers, and should not be held to a standard under which they are presumed to be able to predict with certainty how an arbitrator might rule on a particular grievance.
In other words, the test is not a hindsight evaluation of whether the grievance was a “good” one that the union should have pursued because the union (again, in hindsight) would have prevailed. Instead, the test is whether the union considered the grievance fairly. The union must evaluate the merits of the grievance, to be sure, but it is the union’s efforts that are judged—not what the result might have been had the grievance been arbitrated. Questions would include: did the union fail to investigate the circumstances sufficiently to make a reasoned decision? Did the union treat the grievance differently than similar grievances for no reason, i.e., arbitrarily? Was the union’s decision not to arbitrate based on some kind of discriminatory reason? Was it out of personal animus towards the grievant, i.e., in bad faith? If the answers to these and similar questions are “no”—if the union made a thorough investigation of the facts and reached a rational conclusion that the grievance lacked sufficient merit to go to arbitration—then the union will have fulfilled its duty.
Procedurally, if an individual employee believes he or she had a meritorious grievance that the union did not pursue and/or arbitrate, then—and only then—can the individual employee go to federal court. Under what is called a “hybrid” claim, the employee must prove both that the employer violated the CBA, and that the union breached its duty of fair representation. (Hence the jury instructions above, which are read by the judge to the jury hearing such a “hybrid” lawsuit.) Accordingly, even if the court or jury finds that the employer violated the contract, the plaintiff will not prevail unless he or she also proves that the union breached its duty of fair representation under the principles described above.
Such lawsuits are not common; success is even rarer. That is less a sign of unfairness than it is a testament to the efficacy of the grievance and arbitration process. It works well.
Note: the author is ICSOM General Counsel.
