Handling Grievances.docx

7/28/2019 Handling Grievances.docx

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1. WHERE DO GRIEVANCES COME FROM?

For a real grievance to have occurred there must have been a violation of an employee's rights on the

job. Also, it must have been the employer or one of his/her agents -- like a supervisor or manager -- who

has violated these rights, directly or indirectly. If an employee makes a compliant that doesn't involve the

employer in some way, you may still have to deal with it, but it won't be a grievance.Most grievances are "real" in the sense that we are sure the employer has violated someone's rights; but

this doesn't mean we will always win the case. We are limited by the contract, by our skills, or by how

much union power we have. So a grievance can turn out to be no more than an "alleged violation" or

even just a complaint.

It's your job as a steward to decide which rights have been violated and so determine whether a

grievance exists. Because most employees' rights are contained in the contract, this is the first place you

look to see if there is a real grievance against the management. If the grievance is a clear-cut violation of

the contract, it will be easy to prove provided you stick to your guns. If it involves an interpretation of the

contract, it will not be so easy to prove.

The kinds of grievances that may occur under the contract are:a. Wage Grievance - failure to pay agreed rating including:

starting pay

automatic increase

merit increase

improper classification of job

employee wrongly classified

shift premium

vacation pay or bonus

call-in pay

improver incentive or piece rate

b. Wage Inequities

(usually handled through collective bargaining negotiations or through

supplementary wage agreements)

c. Unreasonable Rate of Production or Workload (Speedup)

violation of time or production standard can be approached from the

standpoint of a physical working condition or violation of principle of

"fair day's work for fair day's pay."

d. Assignment and Placement of Workers

improper transfer (violation of seniority clause)

improper promotion

improper allocation of work (as in overtime)

improper layoff or recall

e. Disciplinary Action because of:unreasonable rule

penalties without just cause

employees not properly notified of rule or penalties


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reprimand (recording warning)

disciplinary layoffs

discharge

f. Physical Working Conditions

unsafe or unhealthy working conditions (could be a violation of provincial,

state or federal safety laws or workplace rules).

g. Supervisory Practices

abuse of authority

intimidation or coercion

over-supervision (snooping)

inadequate supervision (failure to instruct properly)

supervisor working on bargaining unit jobs

discrimination

favoritism

h. Personal Rights and Privileges

leaves of absence

failure to accord equal treatment (discrimination)

i. Violation of Union Rights

failure to give proper representation (no steward working

overtime) undermining the union undermining grievance procedure

j. Other Contract Violations

some contracts may contain clauses not covered by the above lists

But, unless your contract limits grievances to items covered in the collective bargaining agreement, some

grievances are outside the contract. These are:

Violation of federal or provincial or state law

Here you might have the option of filing a grievance or going to the appropriate government

agency to get redress. If advice from your chief steward or local union business representative is

inconclusive, go ahead with both

Past practice in the workplace

This can be the basis for a grievance, particularly in areas where the contract is silent or unclear,

where a past practice has been violated by the management, an employee may have a real

grievance. But, to be considered a past practice, the circumstances must have been repeated

over an extended period of time; accepted explicitly or implicitly by both workers and

management, e.g., by verbal agreement or in writing, without either side formally objecting; or

while violating the contract, neither side has demanded that this part of the contact be enforced.

Failure of management to live up to their responsibilities, particularly over health and safety

conditions

Employer's rules

These can be made and changed as long as they are consistent with the contract. But, while


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they are in existence, they cannot be violated by either side and so they can be the basis for a

grievance.

2. WHO IS AGGRIEVED?

Summary: we can classify grievances according to where they come from and how they arise, but we can

also look at them according to who is affected.

Individual grievances

Most grievance affect only a single individual. Even so, you as a steward should be filing the

grievance, not the employee on her/his own (if the contract permits it). It is in the interests of everyone in

the union that the grievance is handled properly, bearing in mind the interests of the union as well as the

griever. And, when an individual's rights have been violated and he or she refuses to file a grievance, you

should file the grievance on behalf of the union -- especially if the contract specifically permits it. In this

way, you will defend the collective bargaining agreement and protect the rights of all employees covered

by it. The management's argument that you cannot file an individual grievance on behalf of the union is

invariably false.

Group grievancesThis is where several employees have the same complaint. Usually you file the grievance on

behalf of the group (who must be clearly named or defined) though there is nothing wrong with filing a

series of individual grievances dealing with the same issue.

Union grievance or policy grievance

Exactly what your rights are and exactly what these grievances are called depends on the

language used in the contract. These two types of grievances usually mean the same thing.

The union grievance is one that is filed by the union on behalf of a group of individuals or the whole

bargaining unit -- or on behalf of an individual who refuses to file it. Invariably, a union grievance is one in

which the union considers its rights to have been violated, and not just the rights of individuals in the

bargaining unit. Again, you might find the expression "general grievance' used and it might mean uniongrievance, policy grievance, or group grievance, depending once more on the language used in the

contract.

3. GRIEVANCE AND ARBITRATION

Almost all OPEIU contracts contain a section which gives the union the right to process a grievance to

final and binding arbitration. If the employer ignores the grievance by not giving an answer as required by

the collective bargaining agreement, then the union may advance the grievance to the next stage, and the

next, until the issue is either before an arbitration board (in Canada) or arbitration is invoked by a court (in

the U.S.).

4. WHEN IS A COMPLAINT NOT A GRIEVANCE?

If the management has not violated anyone's rights, there is no grievance. But, there may be a real

complaint, and if you are a good steward you will deal with complaints as seriously as you would a

grievance. Here are some types of complains:

Personal troubles and requests for advice

You will often find that people want to confide in you. Treat them sympathetically; try to help them

and keep confidences strictlyto yourself.

Complaints about fellow workers

These need a lot of tact, diplomacy and moral authority on your part. This sort of complaint


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becomes a grievance if management gets involved when it shouldn't, according to the contract or past

practice -- or it doesn't get involved when it should.

Complaints about government agencies and local bodies

Complaints against management not covered by the contract

There may be cases you have to face which do not involve an injustice, do not violate past practice

and are not covered by the contract. It still may be possible to remedy these complaints by informal

discussions between the union (you) and the employer.

Borderline cases

You should seek advice from the chief steward or the grievance committee or your local business

representative before taking these up as grievances. Report back to the person complaining as soon as

possible, explaining what you are doing and why.

Complains against the union

It is up to you to explain to the complainer what his or her rights are under the rules and constitution

of the local and international union.

5. THE NEGOTIATED GRIEVANCE PROCEDURE

Every negotiated agreement (contract) has a negotiated grievance procedure. The grievance procedure

can be set forth in the contract in many ways. However, most procedures follow a basic course from

information to formal presentation with arbitration being the last recourse in most agreements.

The grievance procedure provides for judicial review of any action taken by management that has impact

on the employees covered by the negotiated agreement. Without a grievance procedure employees

would have no internal process available for ensuring their right to justice on the job. The alternative to

this procedure, group action or courts of law, is often costly, time consuming and insensitive to unique

problems within an industry. Therefore, the grievance procedure provides a more effective means of

redressing employee problems.

6. THE STEWARD'S ROLE IN GRIEVANCE HANDLING

The role the steward plays in the grievance procedure is a vital one. As the grievance moves up theladder of the negotiated procedure it moves higher up the chain of command both in the industry and the

union. For example, it usually goes from:

STEP UNION MANAGEMENT

1 Steward notifies union Immediate Supervisor

in writing about grievance

2 Steward and Department Manager

Union Representative

3 Union Representative Top Management

4 ArbitratorAt first glance, one may think that the steward holds the least significant position in the grievance

process. However, consider the origin of the grievance. The employee comes to the

steward first! Therefore, the records, decisions and insights at this first step set the stage for any

successful resolution that may come later. The burden is placed on the steward to accurately record all

information necessary to provide those involved in the "grievance ladder" a clear picture of what actually

took place. In other words, the employee and the steward have a better understanding of the grievance

than anyone else. Winning or losing a legitimate grievance ultimately depends on the steward's ability to


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investigate and judge the information and evidence at the first step, and pass this information on as

clearly and accurately as possible. Settling grievances at the first step, the most desired course of

action, is also heavily dependent on the steward. However, if for various reasons the grievance is carried

forth, the union representative must use the steward's records as the basis for the case.

7. RECORDING THE GRIEVANCE

When an employee comes to you with a complaint you should always make a note for your files listing the

person, problem, date, supervisor and workplace. Also you should request the employee to write down

the facts and keep an ongoing log of events that take place pertaining to the complaint. This is a

safeguard in the event the complaint becomes a legitimate grievance and proceeds through the various

steps of the grievance procedure. Trying to recall times, places and actions from memory is highly

ineffective in grievance handling. Should you fail to settle the grievance at the first, informal step, the

union will need these records in drafting the formal grievance statement. It is important for the union to

keep records of grievances handled at the informal step, so send your documentation to your union

representative if it is resolved.

A complaint formally enters the grievance procedure when it is presented in writing. The steward, who

normally has the responsibility for submitting the grievance for writing to the union, should do so only after

completing Step I of the grievance procedure. When submitting the grievance to the union the steward

should check carefully to make sure the Six W's - WHO, WHEN, WHERE, WHY WHAT and WITNESSES

of the grievance form are covered.

WHO: Refers to the employee filing the grievance and the supervisor (if any) involved.

WHEN: Refers to the time element. Often information regarding more than one date is needed to

complete the form properly: (1) the date on which the grievance is officially written; (2) the time and date

on which the grievance actually happened; (3) the date on which the grievance was submitted to the

immediate supervisor (first or informal step of the grievance procedure); and, (4) the date on which the

immediate supervisor gave a decision.

WHERE: Refers to the exact place where the grievance took place - the department, aisle, office,terminal or plant.

WHY: Refers to the reason the complaint is considered a grievance. The WHERE and WHY are

described under the section "Statement of Grievance" and must be clearly stated to obtain a clear picture

of the facts. It is important to remember that it is possible to have a legitimate grievance without being

able to point to a violation of a specific clause of the contract.

WHAT: Refers to what should be done about the grievance - the corrective action desired and what

adjustment is expected.

WITNESSES: If a particular incident took place which gave rise to the grievance, the names of any

witnesses who say what occurred should be listed on the grievance form. This should include the

address and phone number of all witnesses.Both the employee and the steward should sign the grievance form. The employee's signature verifies

the facts of the grievance.

8. UNDERSTANDING THE QUALITY OF INFORMATION

As you begin to investigate a grievance you will realize that the information you gather usually falls into

two categories:

a. specific measurable information; and,

b. non-specific or unmeasurable information.


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Both types of information will surface; however, non-specific information has little use in grievance

handling. The following is a list of various types of "specific" information that frequently have impact on

grievances. Also given is the method of measuring this information.

Information Methods of Measure

Years of Service . . . . . . . . Years, months and days

Medical Records . . . . . . . . . Number of reported injuries in past period, hours lost from work,

kinds of injuries

Absenteeism. . . . . . . . . . . . . Number of days lost

Tardiness . . . . . . . . . Number of days tardy, number of hours lost from work

Production . . . . . . . . . . . . . . Amount produced

Other Jobs Held . . . . . . . . . Job titles, period of time on each job

Education and Training . . . . . Years in school, training programs attended, courses taken

Written Reprimands . . . . . . Number, kind of violation

Quality of Work . . . . .. . . . . . Accuracy and quality

Although "specific" information seems to be fairly cut and dry on the surface, it can be very

misleading. For example, take the area of absenteeism. If the grievance involves employee

absenteeism, check for reasons, don't rely on the numbers alone. A person out for three weeks due to

hospitalization would show 15 days absent from work. Whereas an employee who is down and out about

one day a month for general illness might not show but 8-10 days absent. If reasons are not examined,

the person with the most days absent could be wrongly labeled as "excessively absent."

The steward must also make sure that the information is clear. While people can measure the

information listed above, a skilled steward will ask the question: "Why did it happen?" or "Does that

information apply to this particular grievance?"

A worker has had production problems on his/her record which look pretty bad. A steward may find that

the supervisor ordered him/her to do non-productive work during his/her regular operation. Additional

investigation must take place to determine the importance of this information.A frequently used piece of information is years of education. Some questions that might be raised

include: How good was the education or training? Does his/her education help a worker to do a better

job? Will any subject taken in school help a worker to do the job that is now open? After answering these

kinds of questions, a steward can, then, determine the value of education in a union member's

record. Years of education alone do not help very much.

The same can be said for absenteeism, tardiness and medical records. A steward must find out how long

ago they happened, reasons for the occurrences, whether the reasons apply to present situations,

whether the record looks poor in comparison to records of other workers.

This type of information is very important in many grievances and will be used by stewards

frequently. Stewards only have to be certain that management understands the meaning. Much ofgrievance negotiation concerns the difference between steward and supervisor about the meaning of

measurable information.

Information that is non-specific and cannot be measured -- some words frequently used to describe a

person or his/her behavior have little or no use in processing grievances. They include the following:

Ability

Attitude

Personality


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Character

Disability

The word "ability" can be defined in terms of production, quality of work, and possibly attendance and

medical records. But the word "ability' alone has very little meaning. Supervisors have said, "I can tell

that one worker has more ability than another." If it cannot be measured and has no clear meaning, this

statement is nothing more than a supervisor's opinion -- may be accurate, may be inaccurate. The skilled

steward must require proof for the statement, proof that is measurable and has clear meaning.

"Attitude," "personality," "character," "dependability" -- these are words that never have been defined in a

way that produces agreement. One person's opinion about another person's attitude may be very

different from other peoples' opinions. There is no way to specifically compare people's personalities and

character.

How do you know that one worker is more pleasant than another or one worker is more honest than

another? And, even if we did, what does that have to do with a worker's ability to produce for his/her

employer? Should a person be punished because he/she does not smile as frequently as another, or

disagrees with his supervisor? A steward must know the circumstances surrounding the sour disposition

or disagreement.

A series of disagreements may involve the worker's rights under their union contract or refusal to accept

the improper procedure demanded by their supervisor.

The emphasis on proof helps cut through the main accusations made against workers that are accepted

without challenge. Probably one of the greatest contributions that a union makes to a worker's life is

comparative freedom from punishment based on a supervisor's unproven opinion.

9. PRESENTING THE GRIEVANCE

Whether you are at the informal or formal stage of the grievance procedure, the way in which you present

the grievance can have significant effect on the outcome. Keep the following points in mind when you

present the grievance.

a. Know Your Facts -- Be ConfidentWhen you are ready to go into a conference with the supervisor try to outsmart them. Don't

carry a chip on your shoulder, and don't anticipate being outsmarted or outwitted. Know your contract --

your rights under it -- and stick to them. State the facts plainly. Avoid opinions or hearsay evidence. Too

many grievances are lost because the steward did not have the facts.

b. Stick To The Point -- Be Business Like

As discussion progresses on a grievance, the supervisor may try to sidetrack the real issue

and lead you into a discussion of irrelevant issues or inject additional complaints against the

employee. Insist on discussing the issue raised by the grievance only, nothing else.

c. Settle The Grievance At The First Step

The most desirable aspect is to have the grievance settled at the first step. This prevents thebogging down of grievance machinery and permits the union to devote more time and effort to problems

of general concern to all members.

d. Take A Positive Position -- Not Defensive

Don't be timid or convey the feeling to the supervisor that you are presenting the grievance

because it is an obligation on your part. Avoid being apologetic; impress the supervisor that there is no

possible doubt in your mind that the grievance has merit and should receive equitable settlement.

e. Disagree With Dignity


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Disagree with the supervisor in a calm, firm, positive manner. Avoid pounding the table,

blowing up or making empty threats. Declare your intentions of taking the grievance to the next step. As

a rule, supervisors prefer to settle complaints before the complaint is carried to a higher management

level.

f. Maintain A United Position

Take the aggrieved along with you. This is necessary and prevents mistrust and establishes

confidence in the steward. But, make sure you are both in accord on the facts and issues!

g. Be Prompt -- Follow The Grievance Through

Refer the grievance to the chief steward or next step when not settled. Give him/her all the

facts. Give him/her the argument used in your discussion with the supervisor. Don't allow the grievance

to lay around. Keep a constant check on the progress of the grievance at what step it is in. Report back

to the aggrieved.

REMEMBER, the only time you present a grievance is after you have gathered all the facts!

10. AUTHORITY OF SUPERVISOR

The degree to which grievances are successfully handled at the first step is largely dependent on the

authority granted the supervisor. In some cases the supervisor is only the "messenger" for the

management representative in the next step of the grievance procedure. If this situation exists, few

settlements will take place at the first level.

It is important to observe the steps in the grievance procedure even if the supervisor has limited

authority. "Leapfrogging" to a higher step may have several undesirable effects. The supervisor may

resent this and may be more difficult to deal with the next time, or management may seek to get the

grievance thrown out because the proper steps were not followed.

Even the best steward will, from time to time, have trouble in settling grievances because of various

tactics used by the supervisor.

Here a few examples:

o Delays - If the supervisor stalls in giving an answer on a grievance, the steward should not hesitateto invoke the time limitations spelled out in the contract. If there are no time limitations, it may be

necessary to systematically nag the supervisor until you get an answer. If there is still no response you

may have to file a grievance charging the supervisor with "stalling," or otherwise move directly to the next

step in the procedure.

o Compromising - Sometimes the supervisor may offer to "split the grievances" - the union wins half

and loses half. This may prove to be a temptation, but it is important to remember that each employee is

entitled to fair treatment.

If the employee feels that his/her grievance has been traded off to benefit another worker this

destroys his/her confidence in the union. Therefore, it is important to treat each grievance on its own

merits.o Losing Your Temper -- Sometimes management will deliberately provoke you hoping that you will

lose your temper and make rash promises or threats which cannot be carried out. Such actions result in

the stewards losing the respect of both management and the people he/she represents. Most people do

not think straight when they are angry.

o Discussing Side Issues -- Often management will try to sidetrack the steward by discussing matters

not related to the grievance under consideration. If it is of concern to the organization, the steward should

ask that it be discussed after the grievance is resolved. If the subject is completely irrelevant, the


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supervisor should be reminded of the purpose of the meeting. But the supervisor should not be cut off so

sharply that he/she takes offense.

o Know When To Stop Talking -- It is usually better to say too little than too much. A good rule of

thumb is to talk 20% of the time and listen 80% of the time. By listening to the other side, it is often

possible to get a better understanding to management's argument and, therefore, be in a better position

to combat it. If management has conceded the grievance, the steward should end the discussion and not

rehash it further. Otherwise, the supervisor may think of some additional reasons why their position is

correct, and it may be necessary to reargue the entire case. If the employee is not present at the time of

settlement, he/she should be notified immediately of the outcome of the case.

11. FAILURE TO REACH AGREEMENT

If the steward is unable to obtain a settlement, he/she should tell the supervisor that the grievance will be

taken to the next step in the grievance procedure.

The steward should inform the employee of what has happened. In addition, the steward should brief the

chief steward or the union representative who is involved in the next step of the grievance procedure, as

to the main line of argument taken by the supervisor.

The way in which the steward has handled and documented the grievance up to this point will have quite

an impact on the way the union representative at the next step will proceed. The union representative

has very little to go on other than the background information received from you - the first line

representative.

The steward should be careful never to guarantee the employee a successful settlement of the problem.

What appears to be an airtight case is sometimes completely destroyed upon further investigation. It may

be difficult to convince the employee why the case was lost.

The steward should be prepared to process vigorously the grievances of all the employees he/she

represented regardless of their personal feelings about them. This should be done both as a matter of

justice and as a method of ensuring that dangerous precedents involving contract violations are not

established.Since the employee wants their grievance settled "today," or "tomorrow at the latest," it is important that

he/she be kept informed on the progress of the case. Sometimes it may take months before a grievance

is completely processed. Therefore, an employee should be informed of the various time limitations in

the procedure which make a more rapid settlement impossible.

12. DO'S AND DON'TS

The following document is actually a leaf out of the employer's book. It is given to you to show the

union steward that many of the skills and techniques used in grievance handling are also used by

supervisors; only the perspective (management instead of union) is different. Read and study the

document. From it you can learn to recognize what techniques a supervisor is using and respond in the

appropriate way. Note down those techniques which you think are differentfrom your own. Whydo youthink they differ?

Examples of Guidance Provided to Supervisors:

Grievance - Do's and Don'ts

Usually, the supervisor had no hand in negotiating the contract or in drafting its provisions. Nevertheless,

he/she is the one who deals most frequently with employees with the union -- and he/she must be

quipped to represent management's interests and preserve management's rights. If he/she isn't, they will

quickly go down the drain.


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The following checklist provides supervisor with a practical guide: what to do and what not to do in

handling the grievance machinery. Naturally, all these points are not applicable to every case. But if you

are familiar with all of them, you will be prepared for almost any kind of case that may arise.

Do's

1. Require the steward to identify the specific contractual provision allegedly violated. Determine

whether the matter can properly be constituted a grievance, as defined by the agreement.

2. Determine whether the grievance was filed, appealed, and processed from step to step within the

contractual time limits and whether the grievance meets all other procedural requirements dictated by the

agreement.

3. Examine the agreement carefully. Is it silent on the matter in dispute? If so, is there a past practice

covering it? Is it known to both parties? Was it instituted unilaterally or bilaterally? Has it been relied

upon before? How long has the practice existed?

4. Examine the relevant contract provision. Is it ambiguous or unclear. If so, how has the provision

generally been interpreted by the parties? Has there been consistent administration?

5. Determine whether you have treated employees differently under similar circumstances. If so,

why? Has the prior relationship with the grievant been good or poor? If poor, why? Has the grievant

been disciplined on a prior occasion? Why, and what was the outcome?

6. Investigate or seek advice on past grievances for any similar issues that have been resolved in

prior cases, for repeated grievances on the same issue, and for arbitration awards on the same issue.

7. Record all results of your investigation.

8. Gather for possible future use any records that bear on the case, such as time cards, production

records, absenteeism reports, payroll records, etc.

9. Remember that the union is the moving party on all but discipline cases. Require the steward to

present his argument, his positions, his case.

10. Permit a full hearing of the issues. Be sure the steward has presented his whole case; be sure

you have everything on the record that is pertinent.11. Give the steward reasonable latitude in the way he presents his case, but don't permit him to taken

an excessive amount of time to demean management personnel.

12. Make a full record of both the steward's and your positions, arguments, witnesses, evidence, and

participants in discussions.

13. Treat the steward with the respect due his office, and demand the respect due your office from him.

14. Control you emotions, your remarks, your behavior.

15. Pass along to your personnel officer your experience with any troublesome contract clauses.

16. Remember that your case may result in an arbitration hearing. Fully inform your personnel officer

of all discussions about the grievance.

Don'ts1. Don't discuss the case with the union steward alone if the grievant is at work and can be present

during the discussion.

2. Don't argue with the steward in the presence of employees.

3. Hold your discussions privately.

4. Don't admit to the binding effect of a past practice for settlement of the grievance until you have first

discussed it with your personnel officer.


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5. Don't assume a judicial role. Hear the union's case, then be an advocate. Represent

management's interests.

6. Don't argue the merits of the grievance first, if the raising or filing of the grievance was untimely. If

untimely:

o Present your arguments on the issue first -- giving reasons for considering it untimely.

o Be very clear that you are denying it first on that basis.

7. Don't withhold any relevant facts -- if they reveal weaknesses in your case, prepare logical and

persuasive defenses.

8. Don't make settlements that obligate the employer to prior approval, mutual consent, or joint

consultation with the union before management can act.

9. Don't ask favors of the union. It will expect a reciprocal concession from you some day.

10. Don't give lengthy written answers on grievance forms when denying a grievance. If the grievance

should be legitimately denied -- after all persuasive efforts to resolve it have failed -- give the simple

written answer, "No contract violation. Grievance denied."

11. Don't make any settlements "outside" the terms of the agreement.

12. Don't hold back a remedy if the employer is clearly wrong.

13. Don't count on the union to assume authority for resolving your problems, exercise your authority

and dispose of issues.

14. Don't interrupt or stop operations to accommodate a union steward demanding instant handling of a

grievance. However, don't postpone or delay grievance handling beyond the time when it will no longer

interfere with production operations.

15. Don't cause the employee or union to default on their compliance with any time limits by your action

or inaction. If you do, don't later deny the grievance for reasons of their noncompliance with such time

limits.

16. Don't settle the grievance if you have any doubts. Discuss the case with your personnel officer.

Your Grievance is Denied. Now What?

Q: I recently went to my chapter leader about a problem and wound up filing my first

grievance. My chapter leader assisted me and represented me at Step 1. When my

grievance was denied, she helped me move it to Step 2. After my appeal was turned

down, I wanted to proceed but she said that the borough office would first have to

review my case. What are my rights now?

A: The grievance machinery is one of the best weapons the union has to resolve

violations of the contract. By using the grievance machinery, individual members can

assert their rights and seek just remedies. So you did the right thing by going to your

chapter leader when you thought you had a grievance.

Chapter leaders are able to determine whether a particular problem constitutes a

grievance. Article 22A of the Teacher's Agreement states that a grievance is "a


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conference gives you a chance to personally explain why you believe your case

should go forward.

The Grievance Department will notify you in writing of its decision, usually within

three to four weeks. Either your Step 3 hearing will be scheduled or you will receive

instructions on how to file the next and last appeal to the union's AdministrativeCommittee. The decision of the AdCom is final.

If your Step 3 is heard and denied, the UFT Grievance Department determines

whether or not to proceed to arbitration. If the decision is not to proceed, the same

appeal process outlined above is available to you.

SECOND DIVISION

METRO DRUG DISTRIBUTION,INC.,

P e t i t i o n e r,

- versus

METRO DRUG CORPORATIONEMPLOYEES ASSOCIATION

FEDERATION OF FREE

WORKERS,

R e s p o n d e n t.

G.R. No. 142666

Present:

PUNO,Chairman,

AUSTRIA-MARTINEZ,CALLEJO, SR.,TINGA, and

CHICO-NAZARIO, JJ.

Promulgated:

September 26, 2005x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CHICO-NAZARIO, J.:


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This is a petition for review on certiorari seeking the reversal of the

Decision[1]promulgated on 17 September 1999 and Resolution[2]of 27 March 2000

of the Court of Appeals in CA-G.R. SP No. 47642 entitled, Metro Drug

Distribution, Inc. v. Jose C. De Vera, in his capacity as Labor Arbiter of the

National Labor Relations Commission (NLRC), National Capital Region

Arbitration Branch, Metro Drug Corporation Employees Association Federation

of Free Workers which dismissed petitioners petition forcertiorari.

The facts are as follows:

Petitioner is a corporation engaged in the business of distributing consumer

products. On the other hand, respondent union is the recognized collective

bargaining representative of the rank-and-file employees of petitioner.

On 11 February 1997, petitioner and respondent union entered into a

Collective Bargaining Agreement (CBA) which includes the following provision

on grievance machinery, to wit:

ARTICLE XIXGRIEVANCE MACHINERY

Section 1. DefinitionA grievance is a dispute by and between

the COMPANY and the UNION or any complaint or expressed

dissatisfaction by an employee as may arise from any of the following:

a) The interpretation, violation, non-implementation, or

manner of implementation of any provision of this

Agreement;b) The violation, non-implementation or manner of

implementation of any provision of labor laws, decrees, social

legislation, including their implementing rules and

regulations;
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c) Dismissal, termination, and/or suspension of

employees;d) Any matter concerning labor-management relations

and specifically covered by the collective bargaining

agreement.

Section 2. Preliminary Steps Before resorting to the grievance

procedure, the employee or employees who have cause for complaint or

grievance shall give their respective immediate supervisors the opportunity

to adjust the same.

Section 3. Steps The grievance shall be processed as

expeditiously as possible through the following procedures:

Step 1. The complainant, assisted by his shop

steward, shall discuss the dispute with his department head orbranch manager, as the case may be. If there is no settlement

in two (2) days, the next grievance may be brought up to the

next higher step within three (3) days in writing and signed by

the employee concerned. If no such action is taken, the

grievance shall be considered withdrawn or decided to the

satisfaction of the complainant.

Step 2. Unless settled or withdrawn in step 1, the

complaint shall be filed with the Vice-President, Human

Resources Division. This corporate official or his authorizedrepresentatives shall take up the matter with the President of

the UNION or the latters authorized

representative. Decision at this step must be made within

three (3) days from date of last deliberation. If there is no

settlement made within five (5) days, the grievance may be

taken up to the next higher step within three (3) days in

writing and signed by the President of the UNION or his

authorized representatives. If no such appeal is made, the

grievance shall be considered withdrawn or decided to the

satisfaction of the complainant.

Step 3. If no decision is reached in step 2, the

grievance may be filed in writing by the employee concerned

with the President of the COMPANY or his authorized

representative who shall take up the matter with the President

of the UNION or the latters authorized


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representative. Decision at this step must be made within

three (3) days from the date of the last deliberation.

SECTION 4. Decision. The decision in every grievance step

shall be in writing and the parties thereto furnished a copy thereof.

SECTION 5. Voluntary Arbitration.All disputes, grievances, or

matters not settled through the grievance procedure aforementioned shall be

referred to and decided, or settled through voluntary arbitration except

termination, dismissal, suspension and unfair labor practice (ULP) cases

which, unless otherwise agreed upon by the parties, shall be referred to

compulsory arbitration.

SECTION 6. Arbitrators.- The party desiring to submit to any

dispute or controversy to arbitration shall submit a notice in writing to the

other party which shall contain the names of the three (3) NCMB accreditedarbitrators of his choice, declaring intent to submit the matter to

arbitration. Within five (5) days from receipt of the written notice, the

other party shall also submit its three (3) NCMB-accredited arbitrators and

inform in writing the opposing side of such choice.

SECTION 7. Selection. From the list submitted by both parties,

each party shall strike out two (2) names. The two remaining names shall

be raffled to select one who shall act as the arbitrator.

SECTION 8. Expediting proviso

a) In all grievances where a majority of the employees

of a department, or employees from two or more

departments or branches are concerned, the grievance

procedure shall commence at step 2.

b) In all grievances where the majority of the employees

of the COMPANY are concerned, the grievance

procedure shall commence at step 3.

SECTION 9. Period. The arbitration committee shall render its

decision within thirty (30) days after the dispute, disagreement or

controversy is submitted for decision. All decisions of the arbitration

committee shall be final and binding on all parties hereto.


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SECTION 10. Expenses.The expenses of arbitration including per

diem, salaries of the committee members shall be shared equally by

the COMPANY and the UNION.[3]

In a letter dated 08 July 1997, respondent unions president requested for a

discussion of particular grievable issues including that involving the health

insurance provider and the issue pertaining to the amendment to the salesmens

incentive scheme which was implemented by petitioner.

On 29, 30 July, 01 and 06 August 1997, grievance meetings were conducted

on the aforementioned issues; however, petitioner and respondent union were not

able to reach an agreement.

According to respondent union, it expressed its desire to submit the issues

for voluntary arbitration and it even went as far as submitting the names of three

voluntary arbitrators as provided for in the CBA.[4] Despite this notice, petitioner

failed to submit its own nominees of voluntary arbitrators prompting respondent

union to protest such inaction through a letter dated 23 July 1997.[5] Subsequently,

respondent union instituted a complaint for unfair labor practice before the

arbitration branch of the NLRC.[6] Specifically, respondent union charged

petitioner with gross violation of their CBA economic provisions stemming from

petitioners introduction of unilateral changes on the salesmens incentive scheme

and health insurance provider. Respondent union also accused petitioner of

violations of the duty to bargain and non-observance of the CBA provision on

grievance machinery.
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For its part, petitioner filed a motion to dismiss[7]the complaint on the sole

ground of lack of jurisdiction over the subject matter. Petitioner insisted that the

issues raised by respondent union salesmens incentive scheme and the health

insurance provider - are exclusively cognizable by the voluntary arbitrator based

on Articles 217, 260, and 261 of the Labor Code which provide:

ART. 217.JURISDICTION OF LABOR ARBITERS AND THE

COMMISSION

. . .

(c) Cases arising from the interpretation of collective bargaining

agreements and those arising from the interpretation or enforcement of

company personnel policies shall be disposed of by the Labor Arbiter by

referring the same to the grievance machinery and voluntary arbitration as

may be provided in said agreements.

. . .

ART. 260. GRIEVANCE MACHINERY AND VOLUNTARY

ARBITRATION

The parties to a Collective Bargaining Agreement shall includetherein provisions that will ensure the mutual observance of its terms and

conditions. They shall establish a machinery for the adjustment and

resolution of grievances arising from the interpretation or implementation

of their Collective Bargaining Agreement and those arising from the

interpretation or enforcement of company personnel policies.

All grievances submitted to the grievance machinery which are not

settled within seven (7) calendar days from the date of its submission shall

automatically be referred to voluntary arbitration prescribed in the

Collective Bargaining Agreement.

For this purpose, parties to a Collective Bargaining Agreement shall

name and designate in advance a Voluntary Arbitrator or panel of

Voluntary Arbitrators, or include in the agreement a procedure for the

selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators,

preferably from the listing of qualified Voluntary Arbitrators duly
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accredited by the Board. In case the parties fail to select a Voluntary

Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the

Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be

necessary, pursuant to the selection procedure agreed upon in the Collective

Bargaining Agreement, which shall act with the same force and effect as if

the Arbitrator or panel of Arbitrators has been selected by the parties asdescribed above.

ART. 261. JURISDICTION OF VOLUNTARY ARBITRATORS

OR PANEL OF VOLUNTARY ARBITRATORS

The Voluntary Arbitrator or panel of Voluntary Arbitrators shall

have original and exclusive jurisdiction to hear and decide all unresolved

grievances arising from the interpretation or implementation of the

Collective Bargaining Agreement and those arising from the interpretationor enforcement of company personnel policies referred to in the

immediately preceding article. Accordingly, violations of a Collective

Bargaining Agreement, except those which are gross in character, shall no

longer be treated as unfair labor practice and shall be resolved as grievances

under the Collective Bargaining Agreement. For purposes of this article,

gross violations of Collective Bargaining Agreement shall mean flagrant

and/or malicious refusal to comply with the economic provisions of such

agreement.

Respondent union opposed petitioners motion to dismiss arguing that as

petitioners non-compliance with the CBA provision on grievance procedure is

raised as an issue before the labor arbiter, it would be premature to dismiss the case

for lack of jurisdiction and that resort to labor arbiter is permitted if recourse to the

grievance machinery would be futile.[8] In this case, as petitioner obstinately

refused to comply with its responsibility under the CBA, substantive justice

requires the intervention of the labor arbiter.

In its order dated 19 March 1998, Labor Arbiter Jose G. De Vera denied

petitioners motion to dismiss, thus:
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WHEREFORE, the respondents [petitioner herein] motion to

dismiss is denied. Both parties are required to file their respective position

papers not later than April 28, 1998.[9]

Aggrieved, petitioner elevated the matter to the Court of Appeals through a

petition forcertiorari under Rule 65[10]claiming that the labor arbiter committed

grave abuse of discretion in ruling that the complaint filed by respondent union

was within his jurisdiction in contravention of the policy promoting free collective

bargaining and negotiation and the adoption of voluntary arbitration as a mode of

settling labor or industrial dispute.

The appellate court, however, found no merit in petitioners arguments and

therefore dismissed the same. The dispositive portion of the Court of Appeals

decision states:

WHEREFORE, premises considered, the instant petition is herebyDISMISSED.[11]

Similarly ill-fated was petitioners motion for reconsideration which was

denied through the Court of Appeals resolution promulgated on 27 March

2000.[12]

Petitioner is now before this Court assailing the aforementioned decision and

resolution of the Court of Appeals on the following grounds:
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Section 15. Motion to Dismiss. On or before the date set for the

conference, the respondent may file a motion to dismiss. Any motion to

dismiss on the ground of lack of jurisdiction, improper venue or that the

cause of action is barred by prior judgment or by prescription, shall beimmediately resolved by the Labor Arbiter by a written order. An order

denying the motion to dismiss or suspending its resolution until the final

determination of the case is not appealable.

Considering that the labor arbiters order denying a motion to dismiss such

as the one involved in the instant case is not appealable, petitioner contends that it

correctly availed of the petition forcertiorari before the appellate court as we have

consistently ruled that the extraordinary remedy ofcertiorari may be invoked

when there is no other plain, adequate and speedy remedy in the ordinary course of

law.[14]

In addition, petitioner argues that the issues raised by respondent union in its

complaint before the labor arbiter pertain to company personnel policies which

should be resolved by a voluntary arbitrator or panel of voluntary arbitrators as

prescribed by Article 261 of the Labor Code, to wit:

ART. 261.JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL

OF VOLUNTARY ARBITRATORS

The Voluntary Arbitrator or panel of Voluntary Arbitrators shallhave original and exclusive jurisdiction to hear and decide all unresolved

grievances arising from the interpretation or implementation of the

Collective Bargaining Agreement and those arising from the interpretation

or enforcement of company personnel polices referred to in the

immediately preceding article. . . .
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On the other hand, respondent union asserts that while the NLRC rules do

not provide for a motion for reconsideration of a denial of a motion to dismiss, still

petitioner should have submitted the issue of jurisdiction along with its other

arguments and allegations in its position paper to be filed before the labor

arbiter. In the event of adverse ruling, petitioners remedy was to thereafter appeal

the decision of the labor arbiter before the NLRC. In addition, petitioners attempt

to short-cut the proceeding by initiating a petition forcertiorari contravenes the

settled doctrine of exhaustion of administrative remedies and denied the labor

tribunal of its primary jurisdiction over labor cases.

Respondent union also asserts that as the case below was for unfair labor

practice arising out of petitioners refusal to comply with the grievance procedure

in the CBA, the jurisdiction is properly lodged with the labor arbiter.

We resolve to deny the petition.

Under Rule 65 of the Revised Rules of Civil Procedure, for

a certiorariproceeding to prosper, there should be a concurrence of the essential

requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has

acted without or in excess of jurisdiction or with grave abuse of discretion

amounting to lack or in excess of jurisdiction, and (b) there is no appeal, nor any

plain, speedy and adequate remedy in the ordinary course of law for the purpose of

annulling or modifying the proceeding.[15]


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In the present case, it is undisputed that under the NLRC rules, no appeal

may be taken from an order denying a motion to dismiss. The NLRC rule

proscribing appeal from a denial of a motion to dismiss is similar to the general

rule observed in civil procedure that an order denying a motion to dismiss is

interlocutory and, hence, not appealable until final judgment or order is

rendered.[16] The remedy of the aggrieved party in case of denial of the motion to

dismiss is to file an answer and interpose, as a defense or defenses, the ground or

grounds relied upon in the motion to dismiss, proceed to trial and, in case of

adverse judgment, to elevate the entire case by appeal in due course.[17] In order to

avail of the extraordinary writ ofcertiorari, it is incumbent upon petitioner to

establish that the denial of the motion to dismiss was tainted with grave abuse of

discretion.[18]

In labor cases, Article 223 of Presidential Decree No. 442, as amended, also

known as the Labor Code of the Philippines states:

ART. 223.APPEAL

Decisions, awards, or orders of the Labor Arbiter are final and

executory unless appealed to the Commission by any or both parties within

ten (10) calendar days from receipt of such decisions, awards, or

orders. Such appeal may be entertained only on any of the following

grounds:

(a) If there is prima facieevidence of abuse of discretion onthe part of the Labor Arbiter;

InAir Services Cooperative, et al. v. The Court of Appeals, et al.,[19]a case

where the jurisdiction of the labor arbiter was put in issue and was assailed through
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a petition forcertiorari,prohibition and annulment of judgment before a regional

trial court, this Court had the opportunity to expound on the nature of appeal as

embodied in Article 223 of the Labor Code, thus:

. . . Also, while the title of the Article 223 seems to provide only forthe remedy of appeal as that term is understood in procedural law and as

distinguished from the office of certiorari, nonetheless, a closer reading

thereof reveals that it is not as limited as understood by the petitioners. . .

. . .

Abuse of discretion is admittedly within the ambit of certiorari and

its grant of review thereof to the NLRC indicates the lawmakers intention

to broaden the meaning of appeal as that term is used in the Code. For this

reason, petitioners cannot argue now that the NLRC is devoid of anycorrective power to rectify a supposed erroneous assumption of jurisdiction

by the Labor Arbiter. . . .[20]

Since the legislature had clothed the NLRC with the appellate authority to

correct a claimed erroneous assumption of jurisdiction on the part of the labor

arbitera case of grave abuse of discretion - the remedy availed of by petitioner in

this case is patently erroneous as recourse in this case is lodged, under the law,

with the NLRC.

Time and again, this Court has exhorted that before a party is allowed to

seek the intervention of the court, it is a pre-condition that he should have availed

of all the means of administrative processes afforded him. Hence, if a remedy

within the administrative machinery can still be resorted to by giving the

administrative officer concerned every opportunity to decide on a matter that

comes within his jurisdiction, then such remedy should be exhausted first before

the courts judicial power can be sought. The premature invocation of courts


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judicial intervention is fatalto ones cause of action.[21] This rule is certainly not

without reason

The underlying principle of the rule on exhaustion of administrativeremedies rests on the presumption that the administrative agency, if

afforded a complete chance to pass upon the matter, will decide the same

correctly. There are both legal and practical reasons for the principle. The

administrative process is intended to provide less expensive and more

speedy solutions to disputes. Where the enabling statute indicates a

procedure for administrative review and provides a system of

administrative appeal or reconsideration, the courts for reasons of law,

comity and convenience will not entertain a case unless the available

administrative remedies have been resorted to and the appropriate

authorities have been given an opportunity to act and correct the errorscommitted in the administrative forum.[22]

Prescinding from the foregoing, the remedy then of petitioner from the order

of denial of its motion to dismiss was to submit its position paper as ordered by the

labor arbiter and raise therein the question of supposed lack of jurisdiction. In the

event of unfavorable judgment, petitioner could thereafter raise the case, including

the issue of jurisdiction, via appeal to the NLRC as provided for in the Labor Code

on the ground of grave abuse of discretion amounting to lack or excess of

jurisdiction.

WHEREFORE, premises considered, this petition for review is DENIED

and the Decision dated 17 September 1999 and Resolution dated 27 March 2000 of

the Court of Appeals are hereby AFFIRMED. Let the records of this case be

remanded to the Labor Arbiter for the resumption of proceedings therein. No costs.
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I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of theCourts Division.

REYNATO S. PUNOAssociate Justice

Chairman, Second Division

C E R T I F I C A T I O N

Pursuant to Article VIII, Section 13 of the Constitution, and the Division

Chairmans Attestation, it is hereby certified that the conclusions in the aboveDecision were reached in consultation before the case was assigned to the writer of

the opinion of the Courts Division.

HILARIO G. DAVIDE, JR.

Chief Justice

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