8.5 Grievance-Arbitration and Unfair Labor Practice Risk

What a grievance is and how it moves

A grievance is a formal allegation that the employer violated the CBA, an established past practice, or a protected workplace right covered by the labor relationship. Most CBAs lay out a multi-step grievance procedure with firm deadlines:

Grievance handling is deadline-driven: each step has a clock (for example, 10 working days to advance), and missing a contractual deadline can waive the grievance or, for the employer, default the answer. HR's first actions after receiving a grievance: log it with the date received, identify the controlling CBA articles and timelines, preserve evidence, and respond in writing.

A grievance is deadline-driven at every step. Most contracts impose a clock to file (for example, within 10 working days of the event or of when the employee should have known of it) and a clock to advance an unsatisfactory answer to the next step. Missing the employee/union deadline can render the grievance untimely; missing the employer's response deadline can be treated as conceding the step or advancing it automatically. Because of this, HR's intake discipline — date-stamping, calendaring every step, and answering in writing — is not clerical busywork but the core of defensible administration.

Arbitration

If unresolved, the dispute goes to binding arbitration, usually before a neutral selected through the FMCS or the American Arbitration Association (AAA). The arbitrator interprets the contract; in most cases the arbitrator's award is final and binding with very limited court review. Arbitrators weigh the contract language, bargaining history, past practice, just cause, and consistency. The party alleging a violation generally bears the burden, except in discipline cases where the employer typically must prove just cause.

Weingarten rights

Under NLRB v. J. Weingarten (1975), an employee in a unionized workplace may request a union representative during an investigatory interview the employee reasonably believes could lead to discipline. The right must be requested by the employee — the employer need not offer it. If invoked, the employer may proceed without the interview, grant the representative, or end the questioning, but cannot lawfully deny the request and continue the disciplinary interview.

Grievance versus unfair labor practice

Do not confuse the two systems. A grievance is a contract dispute resolved through the CBA's arbitration process. An unfair labor practice (ULP) is a statutory violation of the NLRA filed with the NLRB, generally within a six-month limitations period. ULP risk arises from interference with Section 7 rights (TIPS conduct), refusal to bargain, unilateral changes to mandatory subjects, discrimination for union activity, or retaliation against grievants or witnesses.

Types of grievances and the duty of fair representation

Grievances fall into recognizable types the PHR may reference: individual (one employee), group/class (several employees affected the same way), policy (challenging a management practice's general application), and union (the organization grieving in its own right). Knowing the type helps scope the remedy.

The union owes its members a duty of fair representation (DFR) — it must handle grievances without arbitrary, discriminatory, or bad-faith conduct. A member who believes the union mishandled a grievance can file a DFR charge with the NLRB. For HR, the practical point is that the union, not the employer, decides whether to advance a grievance to arbitration, and a union may lawfully settle or drop a weak grievance.

How HR handles the file and the NLRB charge process

Good grievance hygiene: a central log with dates received and due, the controlling articles, the requested remedy, the management response at each step, and a preserved evidence file (timecards, prior discipline, witness statements). Preserving prior grievance outcomes matters because they show how similar issues were resolved and support consistent, defensible interpretation.

ULP charges follow a separate track: a charge is filed with an NLRB Regional Office within the six-month period, the Region investigates, and if merit is found the General Counsel issues a complaint heard by an Administrative Law Judge. Remedies can include reinstatement, back pay, and posting of notices.

Worked example: a manager threatens an employee for filing a grievance about overtime. The overtime dispute itself is a grievance; the threat for filing it is potential interference and retaliation — a ULP that HR should escalate immediately and document. Common traps: retaliating against a grievant or witness; missing a step deadline and waiving the company's response; or treating a clear statutory violation as merely an internal contract spat.

Arbitrability, deferral, and settlement

Not every dispute reaches the merits. A threshold question is arbitrability — whether the contract actually covers the issue and whether procedural prerequisites (timely filing, completed steps) were met; an arbitrator may dismiss a grievance as non-arbitrable. The NLRB may also defer a matter to the grievance-arbitration process when a ULP charge overlaps a contract dispute and the arbitral forum can fairly resolve it. Most grievances never reach arbitration at all: the large majority settle at early steps, which is usually the lowest-cost, relationship-preserving outcome.

When HR settles, it should document the agreement, state whether it is without precedent (so it does not become a binding past practice), and apply it consistently. A pattern of fair, timely, well-documented settlements reduces both arbitration costs and ULP exposure while strengthening the labor-management relationship.