2018 - 2019 Local 39Memorandum of Understanding: Article 26: Grievance Procedure

International Union of Operating Engineers, Stationary Engineers - Local 39

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26.1 Purpose

County and the Union agree to this Grievance Procedure in order to provide an orderly procedure to resolve employees grievances promptly.

26.2 Definitions

A grievance is a claim by an employee, a group of employees, or the Union on behalf of an employee(s), concerning the interpretation, application or an alleged violation of this Memorandum. All other complaints are specifically excluded from this procedure including but not limited to, complaints which arise from the following: all disciplinary appeals; all appeals from examinations; performance review evaluation; placement of volunteers; provisions of the Fair Labor Standards Act: and any provision of this Memorandum specifically identified as not grievable.

Day shall mean calendar day.
A “grievant” shall mean an employee, a group of employees or the Union who, in good faith has an actual grievance with County over a grievable matter as defined in Section 26.2. At any step of the grievance procedure, the employee may represent him/herself, or may be represented by a Union representative who may be a County employee or a non-County employee. If the Union is a grievant, it shall be represented by an elected officer, steward or business agent.

26.3 Initiation Deadline

The grievance must be initiated within twenty-five (25) days from the date of the action or occurrence giving rise to the grievance or within fifteen (15) days of when the grievant knew of or could have reasonably discovered such action or occurrence.

26.4 Time Limits

Time limits specified in each step of the procedure shall be strictly observed and may only be extended by mutual agreement of the parties in writing. Failure of a grievant to observe a time limit shall terminate the grievance. Failure of the party to whom the grievance is submitted to observe the time limits shall give the grievant the right to move the grievance to the next level.

26.5 First Step

The grievance shall first be discussed on an informal basis by the grievant with the grievant's immediate supervisor within fifteen (15) days from the date of the action causing the grievance as provided above. The immediate supervisor shall respond within six (6) days. Every effort shall be made by the parties to resolve the grievance at this level and may include conferences among supervisory or administrative personnel. Such discussions will be held whenever possible during the grievant's work hours.

26.6 Second Step Grievance

In the event the grievant believes the grievance has not been satisfactorily resolved, the grievant shall submit the grievance in writing, with a copy to the County’s Director of Labor Relations, to the immediate supervisor within seven (7) days after receipt of the immediate supervisor’s response. The written grievance shall:

Fully describe the grievance and how the grievant is/was adversely affected by the County;
Set forth the section(s) of this Memorandum allegedly violated;
Indicate the date(s) of the incident(s) grieved; and
Specify the remedy or solution to the grievance sought by the grievant.

26.7 Second Step Response

The written grievance shall be responded to in writing by the immediate supervisor within seven (7) days from the time the written grievance is received. The supervisor shall send a copy of the response to the Director of Labor Relations. The written response shall include:

A complete statement of the immediate supervisor’s position and the facts upon which it is based; and
The remedy or correction which has been offered, if any.

26.8 Third Step Grievance

If the grievant is not satisfied with the response at Step Two, the grievant may appeal the decision to the department/agency head, with a copy to the Director of Labor Relations, within seven (7) days after receipt of the written response at Step Two.

26.9 Third Step Response

Within five (5) days after receiving the completed grievance form, the department/agency head, or representative, shall meet with grievant and thoroughly discuss the grievance. The department head shall give a written decision to the grievance within fifteen (15) days after the discussion and send a copy of the decision to the Director of Labor Relations.

26.10 Mediation

Prior to an arbitration hearing, the parties may mutually agree to request the assistance of a mediator from the State Conciliation Service in an attempt to resolve the grievance. The mediator shall have no authority to resolve the grievance except by written agreement of the Union and the County. In the event the grievance is not resolved, neither stipulations, admissions, settlement proposals nor concessions agreed to or offered during mediation shall be admissible in a subsequent hearing.

26.11 Arbitrable Grievances

A grievance which directly and primarily involves the application, alleged violation, or interpretation of this Memorandum, except as otherwise provided in this Memorandum, is arbitrable.

26.12 Selection of Arbitrator

Following completion of the third step of the grievance procedure, if the grievance is subject to arbitration and remains unresolved, the Union on behalf of the grievant may request arbitration. The request for arbitration must be given to the County Counsel and the Director of Labor Relations in writing within fifteen (15) days of the receipt of the response from Step Three. An arbitrator may be selected by mutual agreement of the Union and County. However, should the parties fail to mutually agree on an arbitrator, they shall make a joint request of the State Conciliation Service for a list of five (5) qualified arbitrators. The arbitrator shall be selected from the list by the parties alternately striking names with the first strike determined by chance.

26.13 Arbitration Issues

The parties shall, within thirty (30) days following the receipt of a written request for arbitration, exchange in writing their understanding of the questions to be submitted to arbitration. Thereafter, the parties to the arbitration shall use their best efforts to exchange a written summary of the evidence they intend to offer and to reach agreement on and reduce to writing the question or questions to be submitted to arbitration. The agreed upon question or questions, if agreement is reached, together with the exchanged summaries of evidence and a list of witnesses to be used by each side, shall be submitted to each other and the arbitrator five (5) days prior to the arbitration hearing.

26.14 Arbitrator's Authority and Decision

The arbitrator shall have no power to alter, amend, change, add to, or subtract from any of the terms of this Memorandum. The decision and award of the arbitrator shall be made solely upon the evidence and arguments presented to the arbitrator by the respective parties. If a grievance is submitted to arbitration by the Union, neither offers for settlement nor concessions for settlement made during the grievance procedure shall be admissible in arbitration.

26.15 Binding/Non-Binding Decision

The decision of the arbitrator shall be binding upon the Union. To the extent that the award of the arbitrator is not in excess of $5,000.00, it is binding on the County. To the extent that such award exceeds $5,000.00, it is advisory. If within sixty (60) days of receiving notice of decision and award requiring an expenditure in excess of $5,000.00, final action is not taken by the County to implement it, then the arbitrator’s decision and award shall have no force or effect whatsoever as to the amount in excess of $5,000.00. The Union may then resort to a court of competent jurisdiction to pursue whatever other legal remedies are available to it under the provisions of this Memorandum.

26.16 Arbitrator's Decision Due

Unless the parties agree otherwise, the arbitrator shall render the decision in writing within thirty (30) days following the close of the hearing. The decision of the arbitrator is final. If requested by either party, the decision shall be accompanied by findings of fact and conclusions of law.

26.17 Arbitration Expenses Shared

The cost of employing the arbitrator shall be borne equally by the parties to the arbitration. All other costs such as, but not limited to, attorney’s fees and witness fees shall be borne only by the party incurring that cost.