Arguing a Grievance Is Like Arguing a Court Case

Arguing a Grievance -- Example One

EXAMPLE 1: The company has given Joe Average a disciplinary step for missing work. The company says that Joe has in fact missed more than the allowable time, but since everyone knows he has been going through a divorce, they have been easy on him. Now they feel that Joe has had enough time to get his affairs in order, and they believe that the step is a "wake up call" for Joe. Joe goes to his union steward to file a grievance to get the step removed.

Is the company taking the affirmative or negative position?

The company is taking the affirmative position. They have made a claim against Joe Average. Therefore the company has the affirmative argument and the burden of proof.

What do they need to prove? If you look carefully, you see that the company has made three distinct claims:

1. Joe has missed work
2. Joe missed "more than the allowable time"
3. The company has been easy on Joe -- they have let him exceed the standard limits for attendance.

Knowing that a negative argument is the easiest to formulate, you tell the company you will rebut their claims. The company has the burden of proof. You simply need to show that what they are claiming is not accurate.

To win the first claim, the company must show that Joe missed work. So you will need to determine what his attendance record has been. The company will have attendance records. You need to examine them. You can't just take Joe's word for it, because the company will be able to show those records as evidence. If he "forgets" a few of his absences, the company can use the official record to make it look like you haven't prepared your case well.

Once you have the actual record of his attendance, you can look into the second claim: that he has missed more than the allowable time. How much time is allowed? Is there an official attendance policy? Is there specific contract language about attendance? Is there a work rule that stipulates what is an excused absence and what is not? How have Joe's absences been counted, and is this method in keeping with the official method? If your research shows Joe is under the set limit, you can easily refute the company's argument. And if the company has never set a specific limit, you win by showing that fact. You cannot get a speeding ticket when there is no speeding limit.

Finally, the company has claimed that they have been giving Joe a break. To refute this, you need to look beyond Joe's record. It might be necessary to request the attendance records of all employees who are similarly situated. If you find that all employees get a disciplinary step when they reach the number of absences Joe has reached, then the company isn't giving him a break, they're just enforcing the rule. And if other workers have missed more work than Joe without getting a disciplinary step, then clearly they are not giving Joe a break. They may even be treating him more severely than others. In either of these cases, the mention of their easy stance on Joe has no merit, and should not become a permanent part of his file, regardless of whether they prove the other two parts of their claim. Such a statement may prejudice the handling of any grievances Joe files later.