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James G. Reynolds is a visiting assistant professor and Walter H. Warfield is a scholar in residence, both at the University of Illinois-Springfield.
The introduction of collective negotiations to Illinois public education in 1984 forever changed relationships between teachers and boards of education. School boards could no longer unilaterally establish the terms and conditions of its employees. The traditional authority position enjoyed by boards became constrained by contract parameters negotiated with employee groups that bargained collectively.
In response to contract constraints, some boards were aggressive, exercising all their managerial prerogatives; others were defensive, avoiding confrontation. Still others began to work with teachers to de-emphasize contractual obligations, seeking to change the contract from a rulebook to a guidebook.
The Illinois Educational Labor Relations Act (IELRA) of 1984 clarified the process of labor relations and collective negotiations for school boards and teacher unions. Regardless of how formal the negotiations relationship, without the law, many of the specifics of the process had been unclear. Left unregulated, bargaining tended to mirror the private sector, with disagreements often left to the courts to clarify on a case by case basis.
Today, school board members must be aware that contract administration should be viewed as a continuous process that both precedes and follows collective negotiations. And to better understand the process, boards need to understand the terminology.
What is a grievance?
A grievance is a claim filed by the union, an employee or a group of employees covered under the contract that alleges the contract has been violated. A true violation is either a misapplication or misinterpreted administration of the contract's terms.
The grievance process is simply a formal, agreed to process used to resolve the issue to the point of contract clarity. The process is required by the IELRA as a part of all negotiated contracts.
What's the difference between a complaint and a grievance? Individual teachers are often more loyal to their administration and building than to their union. Therefore, teachers usually try to work out problems by taking complaints to the principal before turning to their union representative. If there is no resolution at the building level, then a complaint could become a grievance if taken to the union.
When a grievance is officially filed, one of the first steps should be to review the grievance definition and the alleged action in order to determine whether it is, in fact, subject to the grievance procedure. In other words, all grievances are complaints, but not all complaints are grievances.
Only language and items in the contract can be challenged. Courts have held over the years that certain legal rights and duties of the school district are not negotiable and, therefore, not subject to the grievance procedure. The following issues, when done in compliance with established law, rule or policy, are examples of non-challengeable matters (the list below is not to be considered all inclusive):
Most often, administrators must respond to teacher grievances over issues such as threats to job security, repeated assignment to non-contractual duties or duty hours, violations of class size and work load limits, classroom discipline, changes in policies from previous agreements, and general inconsistencies in supervision.
What is included?
Freedom from retribution: All grievance procedures have language to protect employees involved in the process from administrative or board retribution. Boards and administrators may not readily see the need for employees to be granted protection when exercising this aspect of the contract, but a fundamental fear held by many employees is that of capricious retribution on the part of the board or administration.
Timelines: The grievance process establishes timelines designed to provide a timely resolution to the grievance. Lack of timely movement on grievances on the part of the board can make a bad situation worse … as well as becoming procedural grounds for losing the grievance.
Progressive steps: Logic is the basis for the grievance process. Grievances are encouraged to be settled quickly and at the point closest to the issue. The grievance process is certain to establish a first step with the aggrieved employee approaching their immediate supervisor with the complaint and to encourage all parties to work out the grievance within the established timelines and procedures set forth in the contract.
If an agreement is not reached at the first level, the aggrieved party is then given clear directions to file a written complaint at the next level up the administrative chain. Failure to resolve the grievance to the satisfaction of the union ends with the matter being brought before an arbitrator. The arbitrator's task is to decide the matter based on written and oral testimony by both parties.
If both parties agree, grievances may be expedited and go directly to arbitration. This happens most often in cases where it is clear that an acceptable resolution will not be reached at the local level between the aggrieved and the board.
Costs associated with grievances: Costs are greatest at the arbitration level. Contracts will be specific on the obligation of the board and union to share such costs. In practice, boards and unions pay their own incurred costs and share equally in the costs of arbitration. Depending on the length and sophistication of the grievance issue, these costs can be extensive.
Grievances as a tool for harassment: Grievances are often interpreted as wrongdoing on the part of the administration merely from the strength of the filing. Unions will certainly interpret the grievance this way: the reason a grievance is filed is a perceived wrongdoing. However, when boards interpret a grievance in this manner, the grievance process is then set to become a tool of harassment on the part of the union against the administration. As such, it can drive a wedge between the union members and administration, creating the illusion that the union needs to "protect" its members from an otherwise arbitrary and capricious administration.
While not common, this strategy of trying to drive a wedge between the board and its administration is used by unions that want to keep angst between the union members and administration during the term of the contract. Boards of education need to beware of this and make certain not to overreact.
No contract can be thorough enough to cover all the circumstances that develop between a union and board during the term of the contract. The grievance process is clearly defined to resolve instances that fall between the lines of the contract; no more, no less.
A matter of personality
Not surprisingly, some districts have more contract grievances than others, and teacher attitudes about teacher/school district labor relations vary across districts. What may be surprising is the degree to which schools within the same district differ in attitude and grievances filed.
Harvard University researcher Susan Moore Johnson attributes this phenomenon to the administrative style of the principal. According to Johnson, principals who tend to base their authority on their position have faculty who are more contract conscious.
Thomas J. Sergiovanni, an education professor at Trinity University in Texas, refers to this as "bureaucratic authority," and concludes that principals exercising this type of leadership will have teachers who "respond as technicians executing predetermined scripts."
On the other hand, administrators who are flexible, who view the school as "ours" not "mine," and who are attentive to the needs of students and teachers will tend to experience more loyalty, flexibility, work interdependence and fewer grievances from their teachers. Sergiovanni views this leadership style as based on "moral authority" and asserts that it will lead to "expansive and sustained" teacher performance.
This is not to say leaders should rely solely on "moral authority," while ignoring the authority of their position in relation to the contract. As noted earlier, Johnson describes a "reciprocal leadership" style of contract administration wherein the administrator knows the contract, but uses it as a guidebook, not a rulebook. Teachers in that school, in turn, come to view the contract in a similar manner.
One potential problem Johnson attributes to this style of leadership is the inadvertent creation of "soft spots," where administrators are reluctant to challenge teacher misconduct or hold them accountable for their actions. In such a situation, "reciprocal leadership" deteriorates into "laissez-faire leadership," and the principal begins to lose the respect of the staff.
Contract administration
It would be naive to think that the way an individual administrator chooses to administer the contract has no effect on the other leaders or schools in the district, or even on the district's central office for that matter. Improper contract administration on the part of any one administrator can lead to undesirable consequences district-wide, including:
The claim of "past-practice" is one of the most common arguments used in teacher grievances. The claim usually is used to prove the existence of an unstated term and condition of employment, or to help define an ambiguous provision. Frank and Edna Elkouri, nationally recognized authorities on labor relations, point out that in order for a past-practice to be enforceable, it must be:
Sarthory's rules
In addition to rules that apply to the determination of past-practice, Joseph Sarthory, writing on negotiations in education, offers 16 rules of good practice that apply to the interpretation of contract language in general.
Adhering to the following rules can be helpful in assisting a principal in the everyday administration of the contract:
Rule 1: In the case of conflict, specific language takes precedence over general language.
Rule 2: A contract is constructed as a whole. To determine the meaning of any part, it is necessary to consider its relation to all other parts.
Rule 3: When a contract is interpreted, ordinary meaning of terms is initially accepted.
Rule 4: When technical language is used, it will be given the normal technical meaning.
Rule 5: It is generally assumed that every phrase or provision in a contract was inserted for a reason.
Rule 6: When a clause describes a particular act or thing to which it shall apply, an inference is drawn that what is omitted or not included was intended to be omitted and excluded.
Rule 7: Language of the contract is controlling in the absence of ambiguity or fundamental mistake.
Rule 8: A contract clause, if it is clear and unambiguous, will be interpreted in strict accordance with the contract terms.
Rule 9: When a contract is silent or unclear, (an arbitrator) must look to past practice to give meaning to the words of the agreement in order to discern what the parties meant. A clear past practice may also prevail over a general contract clause.
Rule 10: When the language of an agreement clearly grants a right, mere nonuse of that right is not evidence that the party has abandoned the right. When the contract's language is ambiguous, the non-exercise of claimed rights is relevant.
Rule 11: The re-adoption of ambiguous language is regarded as evidence of an agreement to follow practices existent under the ambiguous language.
Rule 12: Bargaining history: The parties' intentions will be judged by the final form of the contract language within the context of statements, arguments or positions advanced during the bargaining.
Rule 13: Offers of compromise made at lower levels of the grievance procedure will not be accepted (by arbitrators) to interpret ambiguous contract language.
Rule 14: One cannot get through arbitration what one failed to achieve in negotiations.
Rule 15: Parole evidence: Arbitrators will accept evidence of oral agreements or written interpretations that are made prior to or during negotiations only if the contract is ambiguous or silent.
Rule 16: If either party relies on and seeks a benefit based on an oral or side agreement, that party has the burden of proving the existence of the agreement and its terms.
Although these 16 rules appear to be straight-forward and relatively easy to apply, in practice their application may be more complex. Where past-practice clearly contradicts the expressed language of the agreement, the language — not the practice — takes precedence. For example, if the contract requires teachers to work seven hours per day, but a principal regularly dismisses his teachers after six and a half hours on Friday, the teachers could be required to put in the full seven hours on Friday in spite of the past-practice.
In closing, board members must remember that if not addressed, the existing rift between union and district leaders, in a grievance, could become more difficult to bridge as the two sides grow increasingly intractable. School and union officials alike are always concerned that continued discord within a school district will contribute to declining morale among teachers and staff.
For these reasons, the grievance process, used properly and professionally, will aid both sides in a fair, mutually acceptable settlement.
References
Frank Elkouri and Edna Elkouri, How Arbitration Works, Washington, D.C., Bureau of National Affairs, 1989
Susan Moore Johnson, Teachers Unions in Schools, Philadelphia, Temple University Press, 1984
Joseph A. Sarthory, School-based contract administration, 1985
Thomas J. Sergiovanni, The Transformation of Supervision, 1992