The Exhaustion Question▼
(Failure of the Union)
Addendum to Part I.,D., Procedural “Status of My Termination,” of NLRB Case No. 34-CA-7529: Salome vs. Yale University
The University may try to argue that the NLRB is not an appropriate forum for my claims and that I should continue to pursue my grievances against the University with the Union. I submit this addendum to my original claim to amplify Part I.,D. and to demonstrate two points:
- The Union breached its duty of fair representation in its handling of my grievances
- I had therefore exhausted contractual remedies concerning my termination and the related grievances
Two grievances were pending at the time of my termination — one over my job audit, the other over the wrongful suspension; a third grievance was over the termination itself. The two earlier grievances were material to the termination grievance because, as long as they remained unresolved, they set up seemingly ambiguous conditions that the University exploited to terminate me. During the overlapping courses of the three grievances, the University committed procedural violations and employed stalling tactics, which the Union repeatedly failed to overcome. Thus, none of the grievances ever reached a hearing.
I believe that the Union was unable to provide fair representation to me in handling the three grievances because it was preoccupied with contract negotiations (which are still ongoing) and strike preparations.
1) Deadlines ignored. ▲
Because of these and perhaps other circumstances, the effect was that the Union did not schedule, nor press the University to schedule, the grievance hearings that the Labor Agreement required. The Union repeatedly allowed the University to ignore contractual deadlines, as chronicled below:
The Union filed a grievance on my behalf over the adverse decision on job audit. The Labor Agreement specified that the first hearing take place within 21 days, which would have been July 12.
I had had no word about a hearing date.
I contacted the Union, to be told that no hearing had been scheduled; my Union representative admitted that the University had been waiting to “hear from or be pushed by” the Union to schedule the hearing.
Still without word about the hearing, I had to call the Union again. My representative reported that she had “pressed” the University, but that the University was having trouble scheduling a meeting because of “staff problems.“
My Union representative reported that the University would not be able to schedule a hearing for at least another week because of vacations in the Classification Department.
Still having had no word about a date for the hearing, I again called the Union office. This time I was told that my representative was on vacation until September 6 and that my grievance was “on hold.“
I reached my Union representative, back from her vacation. She said she would schedule the grievance hearing after September 18.
By now the fall term had begun, and my faculty supervisor, who supported my request for reclassification and whose presence was necessary at any grievance hearings, was on leave for the term. This made it very difficult to find a date when he would be in town and able to attend a hearing, but he gave me a list of dates that were possible for him. I gave them to my Union representative, who was to try to schedule one of them with the University and get back to me.
My Union representative called me at home after work, and I learned — for the first time — that the grievance hearing was scheduled for early the next morning. The Union had not informed me earlier — as it should have. I then called my faculty supervisor at home and learned that the University had not informed him, either — as it should have. He now had other commitments for the next day that could not be canceled on such short notice. The one scheduled hearing had to be postponed.
I checked once more with my supervisor about times he might be available, then tried again to have the Union schedule a hearing date. I learned that contract negotiations between the University and the Union were to begin on November 2 and that the Union had decided not to hold any “non-emergency” grievances while negotiations were ongoing. This effectively postponed the hearing until after the contract was settled, which the Union warned could be as late as March — in actuality, no settlement has been reached as of this writing.
I informed the Union of my suspension (of the day preceding, November 15). The Labor Agreement required a grievance be filed within 21 days of the suspension, and a hearing scheduled.
When my Union representative contended that a grievance over the suspension “would not be strong,” I told her firmly that I did not believe she would think so when she had time to hear my explanation and that I wanted her to proceed with the grievance. However, the Union never confirmed filing the grievance, informed me of attempts to schedule a hearing with the University, or informed me that a hearing date had been set.
When my Union representative learned of my termination, she apprised the YCIAS business manager that “we would definitely grieve.” Then she advised me privately that I should take from my office anything I might need in the following two weeks and that I could expect to hear from the Union within that time.
The two weeks had passed, but I had not heard from the Union about my status or about my grievances.
Three more weeks had passed — for a total of five since my termination — and the Union still had not contacted me. The Union had not asked me for documents or other evidence, nor about supporters who would corroborate my testimony in a hearing; they had not even asked for any exposition of my position.
I called the Union to ask about my status and how to proceed. Because of the immanent expiration of the contract (January 21) and an impending strike, the Union had only one possible date, January 16, on which they might hold hearing on my termination. They told me that there could be no grievance if there was a strike. I informed the Union that a number of faculty and staff had volunteered to speak on my behalf at a hearing; that one of them was in California at the time and another in France, but that both were willing to come, given reasonable notice. My Union representative said she would see if the University could meet, and would let me know the results.
The Union had not got back to me to let me know if the University would or would not schedule a hearing on the 16th. I no longer had time to make arrangements for those who had volunteered to testify on my behalf. Nearly six weeks after my termination, eight weeks after my suspension, and more than fifteen months after my job audit request, I believed that any further action in this forum was futile.
2) Acting without knowledge of my position.▲
The Union mediated or negotiated on my behalf without adequate knowedge of my case, did not permit me to rebut accusations or to have my supervisors present at the one meeting we attended with YCIAS management, and drew conclusions from these one-sided presentations by the University.
a) As a condition of the suspension, the YCIAS business manager demanded that I meet with her and a Union representative. My Union representative insisted on attending this meeting, on November 21, without first learning the circumstances of the suspension and without allowing me opportunity to inform her.
v) I had asked that my two faculty supervisors, the department chairmen, be present at the November 21 meeting, but my Union representative would not allow it.
c) My Union representative instructed me only to “listen” during the November 21 meeting, and not to present my position or defend myself.
d) After the November 21 meeting, having heard only the accusations of the business manager, the Union representative concluded that my case was weak.
e) The Union had seen a file of materials assembled by the University to buttress its contentions against me. I asked for a copy of the file, but was never given it. I therefore never had a chance to rebut the University’s contentions to my Union.
f) Without having talked with me about my position, the Union consulted about my termination with the University’s chief negotiator for contract negotiations and accepted his position and his refusal to resolve my case outside of the grievance mechanism.
g) While the Union acceded to the University’s insistence that I “should work through the grievance procedure,” they also accepted the University’s assertions on what they termed “the basic facts of the case,” and told me flatly that if I went to a grievance, “they would definitely uphold this [the termination].”
3) Failure to pursue defenses on procedural violations by the University or to follow conventinal union processes in building a defense.▲
The Union failed to follow up on lines of defense or to allow me to lay out my position to them.
a) On November 30, shortly after I was given termination notice, my Union representative apprised the YCIAS business manager of three process infractions that would be brought out in a grievance:
i) The University had committed a serious violation in firing me without a Union representative present.ii) It appeared the business manager had fired me out of personal animus.
iii) Even if the charges cited in the letter of termination were taken at face value, a penalty of termination was far out of proportion to the purported offense.
When I spoke with the Union on January 4, 1996, they had evidently abandoned even these defenses.
b) The Union has always emphasized that the key to winning a grievance or negotiating a fair settlement short of arbitration is careful and thorough preparation of the case by the employee and Union staff working together, with the backing of the employee’s co-workers and other supporters. Because of the Union’s concerns with contract negotiations and strike preparations in January 1996, they could allocate only one hour — at 7:30 in the morning — for me to lay out my entire case, go over with them the copious amount of supporting documentary evidence they had yet to see, discuss the role of my witnesses, and work out a strategy with them. That was the only opportunity offered, and it was not sufficient.
c) The Union never gave me a copy of any of the three unsettled grievances. The Union never informed me, either formally or informally, of the content of any of the grievances, i.e, of the contractural bases on which it had filed the appeals. Therefore, without any information from any Union representative — formal or informal, written or verbal — I was left completely in the dark about the best way to prepare for hearings for any of the greivances.
4) Preponderant demands on the time of my assigned Union representative.▲
Several circumstances contributed to the Union’s breach of duty, among them two facts about my assigned representative:
a) My assigned Union representative did not understand the organizational structure of my workplace and during the period she was assigned to my case did not have the time to study it:
i) There was no on-site union steward among the C&T staff employed at the YCIAS, one who would be familiar with the organization and working conditions there. When an employee required union assistance, the Union had to assign a representative from other locations in the University or from paid Union staff.
ii) On several occasions since 1993, I had received advice and assistance from one assigned Union staff member. On June 21, 1995, however, more than nine months into my job audit and on the deadline for filing a grievance over the audit decision, a new representative was assigned to me.
iii) My new Union representative was unfamiliar with the YCIAS and, to my knowledge, never comprehended its organizational structure and lines of authority. Other Union representatives who had spoken to employees at the YCIAS from time to time in the past and had become more familiar with the staff and the structures there, had observed that there was no other organization at the University like the YCIAS, with its small autonomous departments managed by high-level C&T staff.
b) My assigned Union representative was also the new president of the Union and bore the considerable responsibilities of leading the Union as it prepared for and entered into contract negotiations with the University, in the summer and fall of 1995, then through the strike by Local 34 when the contract expired, in January 1996. The demands of her position as Union president during those critical months did not allow her the time necessary to represent my case fairly.
By January, 1996, as the Labor Agreement between the University and the Union was about to expire and a strike about to begin, it was clear to me that my wrongful termination and the two related grievances would never be resolved through contractual mechanisms between the University and the Union because:
- the Union, its staff, and its president — who was my assigned representative — were overwhelmed with the responsibilities of contract negotiations and strike preparation;
- the Union never gave me an opportunity to explain my position, show them my documentary evidence, or assemble my witnesses;
- the Union based its assessment of my grievances over the suspension and termination only on assertions made by the University;
- the Union never successfully scheduled even a first hearing on any of my three grievances, even long after contractual deadlines had expired; and
- finally, as the contract expired and a strike was immanent, the Union abandoned all defenses on my behalf, including the defense of self-evident procedural violations committed by the University and the undue severity of the discipline for the purported failure.
For these reasons, I brought my claim against the University to the National Labor Relations Board.
Last updated 06 December 2022 (Tuesday) at 19:51:14 EST ▲