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Contracting out work ordinarily done by workers in your bargaining unit directly affects their ability to continue to make a living. Arbitrators tend to rule that employers cannot subcontract work in order to avoid the wages promised to bargaining unit workers by the CBA. Who has the burden of proof? There are two types of grievances — those dealing with contract language interpretation and those involving discipline. The important distinction between them is who has the burden of proof, because the side with the burden of proof has a more difficult job. In contract interpretations, the union has the burden of proof. We are claiming that the company has been violating the contract, so we will need to convince them (and if it goes that far, an arbitrator) that our understanding of the contract is correct. In a discipline case, the company has the burden of proof. They have disciplined someone, and we are demanding that they prove they had just cause for the discipline.
If, for example, they can’t show evidence that the worker actually did what they accuse him of, then they have not met their burden of proof, and an arbitrator will rule in our favor. Sometimes a union will give away the advantage we have in a discipline case by claiming disparate treatment — the company is treating the worker unfairly. When that happens, the burden of proof shifts back to the union. Now the union is claiming the company did something wrong, so we have to prove our case. It’s usually best to avoid this approach. Writing up the grievance is a complex task that will be discussed in depth in a future article. But there is one very important point to remember: You can only get what you ask for, no more. By filing a grievance, you are telling the company they have done something wrong and they must make it right. If you don’t tell them what they must do to make it right, they can admit they did something wrong, but do nothing to make it right.
Try explaining to your grievant that the company agreed they violated the contract and caused him to lose pay, but he isn’t going to get any of that back pay, because you didn’t ask for it. Being “made whole in every way” means the grievant should receive anything lost because of management’s action. In most situations, it is the maximum a grievant can get. And it is exactly what he or she deserves. But if you don’t ask for it, you won’t get it. Don’t expect the company to go looking for what the grievant may have lost. Get all that information together yourself and put it all in your remedy. Briefly answer the following homework questions from your text on or before Sunday. 3 is also due on Sunday (submit it below). 1. What is integrative bargaining? When does it occur? 2. What are the five “buckets” in a bucket bargaining model?