1.

WHERE DO GRIEVANCES COME FROM?

For a real grievance to have occurred there must have been a violation of an employee's rights on the job. Also, it must have been the employer or one of his/her agents -- like a supervisor or manager -- who has violated these rights, directly or indirectly. If an employee makes a compliant that doesn't involve the employer in some way, you may still have to deal with it, but it won't be a grievance. Most grievances are "real" in the sense that we are sure the employer has violated someone's rights; but this doesn't mean we will always win the case. We are limited by the contract, by our skills, or by how much union power we have. So a grievance can turn out to be no more than an "alleged violation" or even just a complaint. It's your job as a steward to decide which rights have been violated and so determine whether a grievance exists. Because most employees' rights are contained in the contract, this is the first place you look to see if there is a real grievance against the management. If the grievance is a clear-cut violation of the contract, it will be easy to prove provided you stick to your guns. If it involves an interpretation of the contract, it will not be so easy to prove. The kinds of grievances that may occur under the contract are: a. Wage Grievance - failure to pay agreed rating including: starting pay automatic increase merit increase improper classification of job employee wrongly classified shift premium vacation pay or bonus call-in pay improver incentive or piece rate b. Wage Inequities

(usually handled through collective bargaining negotiations or through supplementary wage agreements) c. Unreasonable Rate of Production or Workload (Speedup)

violation of time or production standard can be approached from the standpoint of a physical working condition or violation of principle of "fair day's work for fair day's pay." d. Assignment and Placement of Workers

improper transfer (violation of seniority clause) improper promotion improper allocation of work (as in overtime) improper layoff or recall e. Disciplinary Action because of: unreasonable rule penalties without just cause employees not properly notified of rule or penalties

reprimand (recording warning) disciplinary layoffs discharge f. Physical Working Conditions

unsafe or unhealthy working conditions (could be a violation of provincial, state or federal safety laws or workplace rules). g. Supervisory Practices

abuse of authority intimidation or coercion over-supervision (snooping) inadequate supervision (failure to instruct properly) supervisor working on bargaining unit jobs discrimination favoritism h. Personal Rights and Privileges

leaves of absence failure to accord equal treatment (discrimination) i. Violation of Union Rights

failure to give proper representation (no steward working overtime) undermining the union undermining grievance procedure j. Other Contract Violations

some contracts may contain clauses not covered by the above lists But, unless your contract limits grievances to items covered in the collective bargaining agreement, some grievances are outside the contract. These are: Violation of federal or provincial or state law Here you might have the option of filing a grievance or going to the appropriate government agency to get redress. If advice from your chief steward or local union business representative is inconclusive, go ahead with both Past practice in the workplace This can be the basis for a grievance, particularly in areas where the contract is silent or unclear, where a past practice has been violated by the management, an employee may have a real grievance. But, to be considered a past practice, the circumstances must have been repeated over an extended period of time; accepted explicitly or implicitly by both workers and management, e.g., by verbal agreement or in writing, without either side formally objecting; or while violating the contract, neither side has demanded that this part of the contact be enforced. Failure of management to live up to their responsibilities, particularly over health and safety conditions Employer's rules These can be made and changed as long as they are consistent with the contract. But, while

they are in existence, they cannot be violated by either side and so they can be the basis for a grievance. 2. WHO IS AGGRIEVED?

Summary: we can classify grievances according to where they come from and how they arise, but we can also look at them according to who is affected. Individual grievances Most grievance affect only a single individual. Even so, you as a steward should be filing the grievance, not the employee on her/his own (if the contract permits it). It is in the interests of everyone in the union that the grievance is handled properly, bearing in mind the interests of the union as well as the griever. And, when an individual's rights have been violated and he or she refuses to file a grievance, you should file the grievance on behalf of the union -- especially if the contract specifically permits it. In this way, you will defend the collective bargaining agreement and protect the rights of all employees covered by it. The management's argument that you cannot file an individual grievance on behalf of the union is invariably false. Group grievances This is where several employees have the same complaint. Usually you file the grievance on behalf of the group (who must be clearly named or defined) though there is nothing wrong with filing a series of individual grievances dealing with the same issue. Union grievance or policy grievance Exactly what your rights are and exactly what these grievances are called depends on the language used in the contract. These two types of grievances usually mean the same thing. The union grievance is one that is filed by the union on behalf of a group of individuals or the whole bargaining unit -- or on behalf of an individual who refuses to file it. Invariably, a union grievance is one in which the union considers its rights to have been violated, and not just the rights of individuals in the bargaining unit. Again, you might find the expression "general grievance' used and it might mean union grievance, policy grievance, or group grievance, depending once more on the language used in the contract. 3. GRIEVANCE AND ARBITRATION Almost all OPEIU contracts contain a section which gives the union the right to process a grievance to final and binding arbitration. If the employer ignores the grievance by not giving an answer as required by the collective bargaining agreement, then the union may advance the grievance to the next stage, and the next, until the issue is either before an arbitration board (in Canada) or arbitration is invoked by a court (in the U.S.). 4. WHEN IS A COMPLAINT NOT A GRIEVANCE? If the management has not violated anyone's rights, there is no grievance. But, there may be a real complaint, and if you are a good steward you will deal with complaints as seriously as you would a grievance. Here are some types of complains: Personal troubles and requests for advice You will often find that people want to confide in you. Treat them sympathetically; try to help them and keep confidences strictly to yourself. Complaints about fellow workers These need a lot of tact, diplomacy and moral authority on your part. This sort of complaint

becomes a grievance if management gets involved when it shouldn't, according to the contract or past practice -- or it doesn't get involved when it should. Complaints about government agencies and local bodies Complaints against management not covered by the contract There may be cases you have to face which do not involve an injustice, do not violate past practice and are not covered by the contract. It still may be possible to remedy these complaints by informal discussions between the union (you) and the employer. Borderline cases You should seek advice from the chief steward or the grievance committee or your local business representative before taking these up as grievances. Report back to the person complaining as soon as possible, explaining what you are doing and why. Complains against the union It is up to you to explain to the complainer what his or her rights are under the rules and constitution of the local and international union. 5. THE NEGOTIATED GRIEVANCE PROCEDURE Every negotiated agreement (contract) has a negotiated grievance procedure. The grievance procedure can be set forth in the contract in many ways. However, most procedures follow a basic course from information to formal presentation with arbitration being the last recourse in most agreements. The grievance procedure provides for judicial review of any action taken by management that has impact on the employees covered by the negotiated agreement. Without a grievance procedure employees would have no internal process available for ensuring their right to justice on the job. The alternative to this procedure, group action or courts of law, is often costly, time consuming and insensitive to unique problems within an industry. Therefore, the grievance procedure provides a more effective means of redressing employee problems. 6. THE STEWARD'S ROLE IN GRIEVANCE HANDLING The role the steward plays in the grievance procedure is a vital one. As the grievance moves up the ladder of the negotiated procedure it moves higher up the chain of command both in the industry and the union. For example, it usually goes from: STEP 1 2 3 4 UNION Steward notifies union Steward and Union Representative Union Representative Arbitrator Top Management in writing about grievance Department Manager MANAGEMENT Immediate Supervisor

At first glance, one may think that the steward holds the least significant position in the grievance process. However, consider the origin of the grievance. The employee comes to the steward first! Therefore, the records, decisions and insights at this first step set the stage for any successful resolution that may come later. The burden is placed on the steward to accurately record all information necessary to provide those involved in the "grievance ladder" a clear picture of what actually took place. In other words, the employee and the steward have a better understanding of the grievance than anyone else. Winning or losing a legitimate grievance ultimately depends on the steward's ability to

investigate and judge the information and evidence at the first step, and pass this information on as clearly and accurately as possible. Settling grievances at the first step, the most desired course of action, is also heavily dependent on the steward. However, if for various reasons the grievance is carried forth, the union representative must use the steward's records as the basis for the case. 7. RECORDING THE GRIEVANCE When an employee comes to you with a complaint you should always make a note for your files listing the person, problem, date, supervisor and workplace. Also you should request the employee to write down the facts and keep an ongoing log of events that take place pertaining to the complaint. This is a safeguard in the event the complaint becomes a legitimate grievance and proceeds through the various steps of the grievance procedure. Trying to recall times, places and actions from memory is highly ineffective in grievance handling. Should you fail to settle the grievance at the first, informal step, the union will need these records in drafting the formal grievance statement. It is important for the union to keep records of grievances handled at the informal step, so send your documentation to your union representative if it is resolved. A complaint formally enters the grievance procedure when it is presented in writing. The steward, who normally has the responsibility for submitting the grievance for writing to the union, should do so only after completing Step I of the grievance procedure. When submitting the grievance to the union the steward should check carefully to make sure the Six W's - WHO, WHEN, WHERE, WHY WHAT and WITNESSES of the grievance form are covered. WHO: Refers to the employee filing the grievance and the supervisor (if any) involved. WHEN: Refers to the time element. Often information regarding more than one date is needed to complete the form properly: (1) the date on which the grievance is officially written; (2) the time and date on which the grievance actually happened; (3) the date on which the grievance was submitted to the immediate supervisor (first or informal step of the grievance procedure); and, (4) the date on which the immediate supervisor gave a decision. WHERE: Refers to the exact place where the grievance took place - the department, aisle, office, terminal or plant. WHY: Refers to the reason the complaint is considered a grievance. The WHERE and WHY are described under the section "Statement of Grievance" and must be clearly stated to obtain a clear picture of the facts. It is important to remember that it is possible to have a legitimate grievance without being able to point to a violation of a specific clause of the contract. WHAT: Refers to what should be done about the grievance - the corrective action desired and what adjustment is expected. WITNESSES: If a particular incident took place which gave rise to the grievance, the names of any witnesses who say what occurred should be listed on the grievance form. This should include the address and phone number of all witnesses. Both the employee and the steward should sign the grievance form. The employee's signature verifies the facts of the grievance. 8. UNDERSTANDING THE QUALITY OF INFORMATION As you begin to investigate a grievance you will realize that the information you gather usually falls into two categories: a. b. specific measurable information; and, non-specific or unmeasurable information.

Both types of information will surface; however, non-specific information has little use in grievance handling. The following is a list of various types of "specific" information that frequently have impact on grievances. Also given is the method of measuring this information. Information Years of Service kinds of injuries Absenteeism. . . . . . . . . . . . . Tardiness ........ . Production . . . . . . . . . . . . . . Other Jobs Held . ........ ...... Education and Training . . . . . Written Reprimands Quality of Work . . . . .. . . . . . Number of days lost Number of days tardy, number of hours lost from work Amount produced Job titles, period of time on each job Years in school, training programs attended, courses taken Number, kind of violation Accuracy and quality ........ Medical Records . . . . . . . . . Methods of Measure Years, months and days Number of reported injuries in past period, hours lost from work,

Although "specific" information seems to be fairly cut and dry on the surface, it can be very misleading. For example, take the area of absenteeism. If the grievance involves employee absenteeism, check for reasons, don't rely on the numbers alone. A person out for three weeks due to hospitalization would show 15 days absent from work. Whereas an employee who is down and out about one day a month for general illness might not show but 8-10 days absent. If reasons are not examined, the person with the most days absent could be wrongly labeled as "excessively absent." The steward must also make sure that the information is clear. While people can measure the information listed above, a skilled steward will ask the question: "Why did it happen?" or "Does that information apply to this particular grievance?" A worker has had production problems on his/her record which look pretty bad. A steward may find that the supervisor ordered him/her to do non-productive work during his/her regular operation. Additional investigation must take place to determine the importance of this information. A frequently used piece of information is years of education. Some questions that might be raised include: How good was the education or training? Does his/her education help a worker to do a better job? Will any subject taken in school help a worker to do the job that is now open? After answering these kinds of questions, a steward can, then, determine the value of education in a union member's record. Years of education alone do not help very much. The same can be said for absenteeism, tardiness and medical records. A steward must find out how long ago they happened, reasons for the occurrences, whether the reasons apply to present situations, whether the record looks poor in comparison to records of other workers. This type of information is very important in many grievances and will be used by stewards frequently. Stewards only have to be certain that management understands the meaning. Much of grievance negotiation concerns the difference between steward and supervisor about the meaning of measurable information. Information that is non-specific and cannot be measured -- some words frequently used to describe a person or his/her behavior have little or no use in processing grievances. They include the following: Ability Attitude Personality

Character Disability The word "ability" can be defined in terms of production, quality of work, and possibly attendance and medical records. But the word "ability' alone has very little meaning. Supervisors have said, "I can tell that one worker has more ability than another." If it cannot be measured and has no clear meaning, this statement is nothing more than a supervisor's opinion -- may be accurate, may be inaccurate. The skilled steward must require proof for the statement, proof that is measurable and has clear meaning. "Attitude," "personality," "character," "dependability" -- these are words that never have been defined in a way that produces agreement. One person's opinion about another person's attitude may be very different from other peoples' opinions. There is no way to specifically compare people's personalities and character. How do you know that one worker is more pleasant than another or one worker is more honest than another? And, even if we did, what does that have to do with a worker's ability to produce for his/her employer? Should a person be punished because he/she does not smile as frequently as another, or disagrees with his supervisor? A steward must know the circumstances surrounding the sour disposition or disagreement. A series of disagreements may involve the worker's rights under their union contract or refusal to accept the improper procedure demanded by their supervisor. The emphasis on proof helps cut through the main accusations made against workers that are accepted without challenge. Probably one of the greatest contributions that a union makes to a worker's life is comparative freedom from punishment based on a supervisor's unproven opinion. 9. PRESENTING THE GRIEVANCE Whether you are at the informal or formal stage of the grievance procedure, the way in which you present the grievance can have significant effect on the outcome. Keep the following points in mind when you present the grievance. a. Know Your Facts -- Be Confident When you are ready to go into a conference with the supervisor try to outsmart them. Don't carry a chip on your shoulder, and don't anticipate being outsmarted or outwitted. Know your contract -your rights under it -- and stick to them. State the facts plainly. Avoid opinions or hearsay evidence. Too many grievances are lost because the steward did not have the facts. b. Stick To The Point -- Be Business Like As discussion progresses on a grievance, the supervisor may try to sidetrack the real issue and lead you into a discussion of irrelevant issues or inject additional complaints against the employee. Insist on discussing the issue raised by the grievance only, nothing else. c. Settle The Grievance At The First Step The most desirable aspect is to have the grievance settled at the first step. This prevents the bogging down of grievance machinery and permits the union to devote more time and effort to problems of general concern to all members. d. Take A Positive Position -- Not Defensive Don't be timid or convey the feeling to the supervisor that you are presenting the grievance because it is an obligation on your part. Avoid being apologetic; impress the supervisor that there is no possible doubt in your mind that the grievance has merit and should receive equitable settlement. e. Disagree With Dignity

Disagree with the supervisor in a calm, firm, positive manner. Avoid pounding the table, blowing up or making empty threats. Declare your intentions of taking the grievance to the next step. As a rule, supervisors prefer to settle complaints before the complaint is carried to a higher management level. f. Maintain A United Position Take the aggrieved along with you. This is necessary and prevents mistrust and establishes confidence in the steward. But, make sure you are both in accord on the facts and issues! g. Be Prompt -- Follow The Grievance Through Refer the grievance to the chief steward or next step when not settled. Give him/her all the facts. Give him/her the argument used in your discussion with the supervisor. Don't allow the grievance to lay around. Keep a constant check on the progress of the grievance at what step it is in. Report back to the aggrieved. REMEMBER, the only time you present a grievance is after you have gathered all the facts! 10. AUTHORITY OF SUPERVISOR The degree to which grievances are successfully handled at the first step is largely dependent on the authority granted the supervisor. In some cases the supervisor is only the "messenger" for the management representative in the next step of the grievance procedure. If this situation exists, few settlements will take place at the first level. It is important to observe the steps in the grievance procedure even if the supervisor has limited authority. "Leapfrogging" to a higher step may have several undesirable effects. The supervisor may resent this and may be more difficult to deal with the next time, or management may seek to get the grievance thrown out because the proper steps were not followed. Even the best steward will, from time to time, have trouble in settling grievances because of various tactics used by the supervisor. Here a few examples: Delays - If the supervisor stalls in giving an answer on a grievance, the steward should not hesitate o to invoke the time limitations spelled out in the contract. If there are no time limitations, it may be necessary to systematically nag the supervisor until you get an answer. If there is still no response you may have to file a grievance charging the supervisor with "stalling," or otherwise move directly to the next step in the procedure. Compromising - Sometimes the supervisor may offer to "split the grievances" - the union wins half o and loses half. This may prove to be a temptation, but it is important to remember that each employee is entitled to fair treatment. If the employee feels that his/her grievance has been traded off to benefit another worker this destroys his/her confidence in the union. Therefore, it is important to treat each grievance on its own merits. Losing Your Temper -- Sometimes management will deliberately provoke you hoping that you will o lose your temper and make rash promises or threats which cannot be carried out. Such actions result in the stewards losing the respect of both management and the people he/she represents. Most people do not think straight when they are angry. Discussing Side Issues -- Often management will try to sidetrack the steward by discussing matters o not related to the grievance under consideration. If it is of concern to the organization, the steward should ask that it be discussed after the grievance is resolved. If the subject is completely irrelevant, the

supervisor should be reminded of the purpose of the meeting. But the supervisor should not be cut off so sharply that he/she takes offense. Know When To Stop Talking -- It is usually better to say too little than too much. A good rule of o thumb is to talk 20% of the time and listen 80% of the time. By listening to the other side, it is often possible to get a better understanding to management's argument and, therefore, be in a better position to combat it. If management has conceded the grievance, the steward should end the discussion and not rehash it further. Otherwise, the supervisor may think of some additional reasons why their position is correct, and it may be necessary to reargue the entire case. If the employee is not present at the time of settlement, he/she should be notified immediately of the outcome of the case. 11. FAILURE TO REACH AGREEMENT If the steward is unable to obtain a settlement, he/she should tell the supervisor that the grievance will be taken to the next step in the grievance procedure. The steward should inform the employee of what has happened. In addition, the steward should brief the chief steward or the union representative who is involved in the next step of the grievance procedure, as to the main line of argument taken by the supervisor. The way in which the steward has handled and documented the grievance up to this point will have quite an impact on the way the union representative at the next step will proceed. The union representative has very little to go on other than the background information received from you - the first line representative. The steward should be careful never to guarantee the employee a successful settlement of the problem. What appears to be an airtight case is sometimes completely destroyed upon further investigation. It may be difficult to convince the employee why the case was lost. The steward should be prepared to process vigorously the grievances of all the employees he/she represented regardless of their personal feelings about them. This should be done both as a matter of justice and as a method of ensuring that dangerous precedents involving contract violations are not established. Since the employee wants their grievance settled "today," or "tomorrow at the latest," it is important that he/she be kept informed on the progress of the case. Sometimes it may take months before a grievance is completely processed. Therefore, an employee should be informed of the various time limitations in the procedure which make a more rapid settlement impossible. 12. DO'S AND DON'TS The following document is actually a leaf out of the employer's book. It is given to you to show the union steward that many of the skills and techniques used in grievance handling are also used by supervisors; only the perspective (management instead of union) is different. Read and study the document. From it you can learn to recognize what techniques a supervisor is using and respond in the appropriate way. Note down those techniques which you think are different from your own. Why do you think they differ? Examples of Guidance Provided to Supervisors: Grievance - Do's and Don'ts Usually, the supervisor had no hand in negotiating the contract or in drafting its provisions. Nevertheless, he/she is the one who deals most frequently with employees with the union -- and he/she must be quipped to represent management's interests and preserve management's rights. If he/she isn't, they will quickly go down the drain.

The following checklist provides supervisor with a practical guide: what to do and what not to do in handling the grievance machinery. Naturally, all these points are not applicable to every case. But if you are familiar with all of them, you will be prepared for almost any kind of case that may arise. Do's 1. 2. Require the steward to identify the specific contractual provision allegedly violated. Determine Determine whether the grievance was filed, appealed, and processed from step to step within the whether the matter can properly be constituted a grievance, as defined by the agreement. contractual time limits and whether the grievance meets all other procedural requirements dictated by the agreement. 3. Examine the agreement carefully. Is it silent on the matter in dispute? If so, is there a past practice covering it? Is it known to both parties? Was it instituted unilaterally or bilaterally? Has it been relied upon before? How long has the practice existed? 4. 5. Examine the relevant contract provision. Is it ambiguous or unclear. If so, how has the provision Determine whether you have treated employees differently under similar circumstances. If so, generally been interpreted by the parties? Has there been consistent administration? why? Has the prior relationship with the grievant been good or poor? If poor, why? Has the grievant been disciplined on a prior occasion? Why, and what was the outcome? 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Investigate or seek advice on past grievances for any similar issues that have been resolved in Record all results of your investigation. Gather for possible future use any records that bear on the case, such as time cards, production Remember that the union is the moving party on all but discipline cases. Require the steward to Permit a full hearing of the issues. Be sure the steward has presented his whole case; be sure prior cases, for repeated grievances on the same issue, and for arbitration awards on the same issue.

records, absenteeism reports, payroll records, etc. present his argument, his positions, his case. you have everything on the record that is pertinent. Give the steward reasonable latitude in the way he presents his case, but don't permit him to taken Make a full record of both the steward's and your positions, arguments, witnesses, evidence, and Treat the steward with the respect due his office, and demand the respect due your office from him. Control you emotions, your remarks, your behavior. Pass along to your personnel officer your experience with any troublesome contract clauses. Remember that your case may result in an arbitration hearing. Fully inform your personnel officer an excessive amount of time to demean management personnel. participants in discussions.

of all discussions about the grievance. Don'ts 1. 2. 3. 4. Don't discuss the case with the union steward alone if the grievant is at work and can be present Don't argue with the steward in the presence of employees. Hold your discussions privately. Don't admit to the binding effect of a past practice for settlement of the grievance until you have first during the discussion.

discussed it with your personnel officer.

5. 6.

Don't assume a judicial role. Hear the union's case, then be an advocate. Represent Don't argue the merits of the grievance first, if the raising or filing of the grievance was untimely. If o o Present your arguments on the issue first -- giving reasons for considering it untimely. Be very clear that you are denying it first on that basis.

management's interests. untimely:

7. 8. 9. 10.

Don't withhold any relevant facts -- if they reveal weaknesses in your case, prepare logical and Don't make settlements that obligate the employer to prior approval, mutual consent, or joint Don't ask favors of the union. It will expect a reciprocal concession from you some day. Don't give lengthy written answers on grievance forms when denying a grievance. If the grievance

persuasive defenses. consultation with the union before management can act.

should be legitimately denied -- after all persuasive efforts to resolve it have failed -- give the simple written answer, "No contract violation. Grievance denied." 11. 12. 13. 14. Don't make any settlements "outside" the terms of the agreement. Don't hold back a remedy if the employer is clearly wrong. Don't count on the union to assume authority for resolving your problems, exercise your authority Don't interrupt or stop operations to accommodate a union steward demanding instant handling of a

and dispose of issues. grievance. However, don't postpone or delay grievance handling beyond the time when it will no longer interfere with production operations. 15. limits. 16. Don't settle the grievance if you have any doubts. Discuss the case with your personnel officer. Don't cause the employee or union to default on their compliance with any time limits by your action or inaction. If you do, don't later deny the grievance for reasons of their noncompliance with such time

Your Grievance is Denied. Now What?

Q: I recently went to my chapter leader about a problem and wound up filing my first grievance. My chapter leader assisted me and represented me at Step 1. When my grievance was denied, she helped me move it to Step 2. After my appeal was turned down, I wanted to proceed but she said that the borough office would first have to review my case. What are my rights now? A: The grievance machinery is one of the best weapons the union has to resolve violations of the contract. By using the grievance machinery, individual members can assert their rights and seek just remedies. So you did the right thing by going to your chapter leader when you thought you had a grievance. Chapter leaders are able to determine whether a particular problem constitutes a grievance. Article 22A of the Teacher's Agreement states that a grievance is "a

violation, misinterpretation or inequitable application of any of the provisions" of this contract or treatment that is unfair, inequitable by virtue of being "contrary to established policy or practice governing or affecting employees." But not every problem is a grievance. Article 22A details some of the kinds of violations - for example, law, state education department policy - for which a member may have recourse to non-grievance remedies. And, of course, there are conflicts that can only be resolved by informal means. When you meet with your chapter leader, he or she will help you initiate the grievance and assist you in citing the proper articles and other technical matters. In addition, your chapter leader can represent you at Step 1 - a hearing with the principal - and, if your grievance is denied, work with your district representative (DR) about filing at Step 2 - a hearing at the superintendent's level. Throughout this process, be sure to keep all documents pertaining to your case and add any new materials as you receive them. If your grievance is denied at Step 2, your chapter leader will consult with your DR if you wish to proceed to Step 3 - a hearing at the chancellor's level. However, the union reserves the right to move the case forward from Step 3 on, in accordance with Articles 22B and 22C of the contract. What this means is that the union, not the grievant, decides whether or not to pursue a case to Step 3 and/or arbitration. For the most part, the union pursues every case where there is a persuasive argument to right a contractual violation. However, there are situations that may cause the union not to proceed. That is because Step 3 decisions and arbitration awards set precedents for the rest of our members. By taking a case to Step 3 or arbitration, the union must weigh the consequences of both a positive and negative decision. In certain cases, the union might refuse to proceed with the grievance in order to protect the interests of other members. A grievance committee in each UFT borough office reviews cases and determines whether or not to take a case to Step 3. If your borough office agrees that a contractual violation took place, you will be notified and a Step 3 hearing will be scheduled. If the borough committee does not believe your case should proceed, you will receive a letter explaining your right to appeal that decision. The internal appeal procedure gives you every opportunity to make the case for having your grievance heard. The letter explains the appeal process to you in detail, including the time limits involved. If you wish to appeal, you will be informed about how to arrange for an individual case review conference at UFT headquarters. This

conference gives you a chance to personally explain why you believe your case should go forward. The Grievance Department will notify you in writing of its decision, usually within three to four weeks. Either your Step 3 hearing will be scheduled or you will receive instructions on how to file the next and last appeal to the union's Administrative Committee. The decision of the AdCom is final. If your Step 3 is heard and denied, the UFT Grievance Department determines whether or not to proceed to arbitration. If the decision is not to proceed, the same appeal process outlined above is available to you.

SECOND DIVISION
METRO DRUG DISTRIBUTION, INC., P e t i t i o n e r, G.R. No. 142666 Present: PUNO, Chairman, AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA, and CHICO-NAZARIO, JJ.

- versus

METRO DRUG CORPORATION EMPLOYEES ASSOCIATION FEDERATION OF FREE Promulgated: WORKERS, R e s p o n d e n t. September 26, 2005 x--------------------------------------------------x

DECISION
CHICO-NAZARIO, J.:

This is a petition for review on certiorari seeking the reversal of the Decision[1] promulgated on 17 September 1999 and Resolution[2] of 27 March 2000 of the Court of Appeals in CA-G.R. SP No. 47642 entitled, Metro Drug Distribution, Inc. v. Jose C. De Vera, in his capacity as Labor Arbiter of the National Labor Relations Commission (NLRC), National Capital Region Arbitration Branch, Metro Drug Corporation Employees Association Federation of Free Workers which dismissed petitioners petition forcertiorari.

The facts are as follows:

Petitioner is a corporation engaged in the business of distributing consumer products. On the other hand, respondent union is the recognized collective bargaining representative of the rank-and-file employees of petitioner.

On 11 February 1997, petitioner and respondent union entered into a Collective Bargaining Agreement (CBA) which includes the following provision on grievance machinery, to wit:
ARTICLE XIX GRIEVANCE MACHINERY Section 1. Definition A grievance is a dispute by and between the COMPANY and the UNION or any complaint or expressed dissatisfaction by an employee as may arise from any of the following: a) The interpretation, violation, non-implementation, or manner of implementation of any provision of this Agreement; b) The violation, non-implementation or manner of implementation of any provision of labor laws, decrees, social legislation, including their implementing rules and regulations;

c) Dismissal, termination, and/or suspension of employees; d) Any matter concerning labor-management relations and specifically covered by the collective bargaining agreement. Section 2. Preliminary Steps Before resorting to the grievance procedure, the employee or employees who have cause for complaint or grievance shall give their respective immediate supervisors the opportunity to adjust the same. Section 3. Steps The grievance shall be processed as expeditiously as possible through the following procedures: Step 1. The complainant, assisted by his shop steward, shall discuss the dispute with his department head or branch manager, as the case may be. If there is no settlement in two (2) days, the next grievance may be brought up to the next higher step within three (3) days in writing and signed by the employee concerned. If no such action is taken, the grievance shall be considered withdrawn or decided to the satisfaction of the complainant. Step 2. Unless settled or withdrawn in step 1, the complaint shall be filed with the Vice-President, Human Resources Division. This corporate official or his authorized representatives shall take up the matter with the President of the UNION or the latters authorized representative. Decision at this step must be made within three (3) days from date of last deliberation. If there is no settlement made within five (5) days, the grievance may be taken up to the next higher step within three (3) days in writing and signed by the President of the UNION or his authorized representatives. If no such appeal is made, the grievance shall be considered withdrawn or decided to the satisfaction of the complainant. Step 3. If no decision is reached in step 2, the grievance may be filed in writing by the employee concerned with the President of the COMPANY or his authorized representative who shall take up the matter with the President of the UNION or the latters authorized

representative. Decision at this step must be made within three (3) days from the date of the last deliberation. SECTION 4. Decision. The decision in every grievance step shall be in writing and the parties thereto furnished a copy thereof. SECTION 5. Voluntary Arbitration. All disputes, grievances, or matters not settled through the grievance procedure aforementioned shall be referred to and decided, or settled through voluntary arbitration except termination, dismissal, suspension and unfair labor practice (ULP) cases which, unless otherwise agreed upon by the parties, shall be referred to compulsory arbitration. SECTION 6. Arbitrators.- The party desiring to submit to any dispute or controversy to arbitration shall submit a notice in writing to the other party which shall contain the names of the three (3) NCMB accredited arbitrators of his choice, declaring intent to submit the matter to arbitration. Within five (5) days from receipt of the written notice, the other party shall also submit its three (3) NCMB-accredited arbitrators and inform in writing the opposing side of such choice. SECTION 7. Selection. From the list submitted by both parties, each party shall strike out two (2) names. The two remaining names shall be raffled to select one who shall act as the arbitrator. SECTION 8. Expediting proviso a) In all grievances where a majority of the employees of a department, or employees from two or more departments or branches are concerned, the grievance procedure shall commence at step 2. In all grievances where the majority of the employees of the COMPANY are concerned, the grievance procedure shall commence at step 3.

b)

SECTION 9. Period. The arbitration committee shall render its decision within thirty (30) days after the dispute, disagreement or controversy is submitted for decision. All decisions of the arbitration committee shall be final and binding on all parties hereto.

SECTION 10. Expenses. The expenses of arbitration including per diem, salaries of the committee members shall be shared equally by the COMPANY and the UNION.[3]

In a letter dated 08 July 1997, respondent unions president requested for a discussion of particular grievable issues including that involving the health insurance provider and the issue pertaining to the amendment to the salesmens incentive scheme which was implemented by petitioner.

On 29, 30 July, 01 and 06 August 1997, grievance meetings were conducted on the aforementioned issues; however, petitioner and respondent union were not able to reach an agreement.

According to respondent union, it expressed its desire to submit the issues for voluntary arbitration and it even went as far as submitting the names of three voluntary arbitrators as provided for in the CBA.[4] Despite this notice, petitioner failed to submit its own nominees of voluntary arbitrators prompting respondent union to protest such inaction through a letter dated 23 July 1997.[5] Subsequently, respondent union instituted a complaint for unfair labor practice before the arbitration branch of the NLRC.[6] Specifically, respondent union charged petitioner with gross violation of their CBA economic provisions stemming from petitioners introduction of unilateral changes on the salesmens incentive scheme and health insurance provider. Respondent union also accused petitioner of violations of the duty to bargain and non-observance of the CBA provision on grievance machinery.

For its part, petitioner filed a motion to dismiss[7] the complaint on the sole ground of lack of jurisdiction over the subject matter. Petitioner insisted that the issues raised by respondent union salesmens incentive scheme and the health insurance provider - are exclusively cognizable by the voluntary arbitrator based on Articles 217, 260, and 261 of the Labor Code which provide:
ART. 217. JURISDICTION OF LABOR ARBITERS AND THE COMMISSION ... (c) Cases arising from the interpretation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. ... ART. 260. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly

accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above.

ART. 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY ARBITRATORS The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement.

Respondent union opposed petitioners motion to dismiss arguing that as petitioners non-compliance with the CBA provision on grievance procedure is raised as an issue before the labor arbiter, it would be premature to dismiss the case for lack of jurisdiction and that resort to labor arbiter is permitted if recourse to the grievance machinery would be futile.[8] In this case, as petitioner obstinately refused to comply with its responsibility under the CBA, substantive justice requires the intervention of the labor arbiter.

In its order dated 19 March 1998, Labor Arbiter Jose G. De Vera denied petitioners motion to dismiss, thus:

WHEREFORE, the respondents [petitioner herein] motion to dismiss is denied. Both parties are required to file their respective position papers not later than April 28, 1998.[9]

Aggrieved, petitioner elevated the matter to the Court of Appeals through a petition for certiorari under Rule 65[10] claiming that the labor arbiter committed grave abuse of discretion in ruling that the complaint filed by respondent union was within his jurisdiction in contravention of the policy promoting free collective bargaining and negotiation and the adoption of voluntary arbitration as a mode of settling labor or industrial dispute. The appellate court, however, found no merit in petitioners arguments and therefore dismissed the same. The dispositive portion of the Court of Appeals decision states:
WHEREFORE, premises considered, the instant petition is hereby DISMISSED.[11]

Similarly ill-fated was petitioners motion for reconsideration which was denied through the Court of Appeals resolution promulgated on 27 March 2000.[12]

Petitioner is now before this Court assailing the aforementioned decision and resolution of the Court of Appeals on the following grounds:

THE HONORABLE COURT OF APPEALS ERRED IN RENDERING THE ASSAILED DECISION/RESOLUTION, HAVING DECIDED A QUESTION OF PROCEDURE IN A WAY NOT IN ACCORDANCE WITH LAW AND THE APPLICABLE DECISIONS OF THE SUPREME COURT, CONSIDERING THAT: I. THE NEW RULES OF PROCEDURE OF THE NATIONAL LABOR RELATIONS COMMISSION DO NOT PERMIT THE FILING OF AN APPEAL OR A MOTION FOR RECONSIDERATION FROM AN ORDER DENYING A MOTION TO DISMISS IN PROCEEDINGS BEFORE THE LABOR ARBITER. HENCE, PETITIONER INVOKED THE JURISDICTION OF THE HONORABLE COURT OF APPEALS AS THERE WAS NO OTHER APPEAL NOR ANY PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW AVAILABLE TO IT. II. CONSIDERING THAT THE RESPONDENT LABOR ARBITER ACTED WITH GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION TO DISMISS FILED BY PETITIONER ON THE GROUND OF LACK OF JURISDICTION NOTWITHSTANDING THAT PRIVATE RESPONDENTS COMPLAINT IS EXCLUSIVELY COGNIZABLE BY THE VOLUNTARY ARBITRATOR, THE REMEDY OF CERTIORARI UNDER RULE 65 OF THE 1997 RULES ON CIVIL PROCEDURE WAS PROPERLY AVAILED OF BY PETITIONER.[13]

The crucial issue for the resolution of this Court is whether petitioner availed of the proper remedy when it filed a petition for certiorari directly before the Court of Appeals after its motion to dismiss was denied by the labor arbiter.

Petitioner maintains that an order denying a motion to dismiss the complaint before the labor arbiter is not appealable as Section 15, Rule V of the New Rules of Procedure of the NLRC clearly states that:

Section 15. Motion to Dismiss. On or before the date set for the conference, the respondent may file a motion to dismiss. Any motion to dismiss on the ground of lack of jurisdiction, improper venue or that the cause of action is barred by prior judgment or by prescription, shall be immediately resolved by the Labor Arbiter by a written order. An order denying the motion to dismiss or suspending its resolution until the final determination of the case is not appealable.

Considering that the labor arbiters order denying a motion to dismiss such as the one involved in the instant case is not appealable, petitioner contends that it correctly availed of the petition for certiorari before the appellate court as we have consistently ruled that the extraordinary remedy of certiorari may be invoked when there is no other plain, adequate and speedy remedy in the ordinary course of law.[14]

In addition, petitioner argues that the issues raised by respondent union in its complaint before the labor arbiter pertain to company personnel policies which should be resolved by a voluntary arbitrator or panel of voluntary arbitrators as prescribed by Article 261 of the Labor Code, to wit:
ART. 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY ARBITRATORS The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel polices referred to in the immediately preceding article. . . .

On the other hand, respondent union asserts that while the NLRC rules do not provide for a motion for reconsideration of a denial of a motion to dismiss, still petitioner should have submitted the issue of jurisdiction along with its other arguments and allegations in its position paper to be filed before the labor arbiter. In the event of adverse ruling, petitioners remedy was to thereafter appeal the decision of the labor arbiter before the NLRC. In addition, petitioners attempt to short-cut the proceeding by initiating a petition for certiorari contravenes the settled doctrine of exhaustion of administrative remedies and denied the labor tribunal of its primary jurisdiction over labor cases.

Respondent union also asserts that as the case below was for unfair labor practice arising out of petitioners refusal to comply with the griev ance procedure in the CBA, the jurisdiction is properly lodged with the labor arbiter.

We resolve to deny the petition.

Under Rule 65 of the Revised Rules of Civil Procedure, for a certiorari proceeding to prosper, there should be a concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding.[15]

In the present case, it is undisputed that under the NLRC rules, no appeal may be taken from an order denying a motion to dismiss. The NLRC rule

proscribing appeal from a denial of a motion to dismiss is similar to the general rule observed in civil procedure that an order denying a motion to dismiss is interlocutory and, hence, not appealable until final judgment or order is rendered.[16] The remedy of the aggrieved party in case of denial of the motion to dismiss is to file an answer and interpose, as a defense or defenses, the ground or grounds relied upon in the motion to dismiss, proceed to trial and, in case of adverse judgment, to elevate the entire case by appeal in due course.[17] In order to avail of the extraordinary writ of certiorari, it is incumbent upon petitioner to establish that the denial of the motion to dismiss was tainted with grave abuse of discretion.[18]

In labor cases, Article 223 of Presidential Decree No. 442, as amended, also known as the Labor Code of the Philippines states:
ART. 223. APPEAL Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following grounds: (a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;

In Air Services Cooperative, et al. v. The Court of Appeals, et al .,[19] a case where the jurisdiction of the labor arbiter was put in issue and was assailed through

a petition for certiorari, prohibition and annulment of judgment before a regional trial court, this Court had the opportunity to expound on the nature of appeal as embodied in Article 223 of the Labor Code, thus:
. . . Also, while the title of the Article 223 seems to provide only for the remedy of appeal as that term is understood in procedural law and as distinguished from the office of certiorari, nonetheless, a closer reading thereof reveals that it is not as limited as understood by the petitioners. . . ... Abuse of discretion is admittedly within the ambit of certiorari and its grant of review thereof to the NLRC indicates the lawmakers intention to broaden the meaning of appeal as that term is used in the Code. For this reason, petitioners cannot argue now that the NLRC is devoid of any corrective power to rectify a supposed erroneous assumption of jurisdiction by the Labor Arbiter. . . .[20]

Since the legislature had clothed the NLRC with the appellate authority to correct a claimed erroneous assumption of jurisdiction on the part of the labor arbiter a case of grave abuse of discretion - the remedy availed of by petitioner in this case is patently erroneous as recourse in this case is lodged, under the law, with the NLRC.

Time and again, this Court has exhorted that before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of courts

judicial intervention is fatal to ones cause of action.[21] This rule is certainly not without reason
The underlying principle of the rule on exhaustion of administrative remedies rests on the presumption that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the same correctly. There are both legal and practical reasons for the principle. The administrative process is intended to provide less expensive and more speedy solutions to disputes. Where the enabling statute indicates a procedure for administrative review and provides a system of administrative appeal or reconsideration, the courts for reasons of law, comity and convenience will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given an opportunity to act and correct the errors committed in the administrative forum.[22]

Prescinding from the foregoing, the remedy then of petitioner from the order of denial of its motion to dismiss was to submit its position paper as ordered by the labor arbiter and raise therein the question of supposed lack of jurisdiction. In the event of unfavorable judgment, petitioner could thereafter raise the case, including the issue of jurisdiction, via appeal to the NLRC as provided for in the Labor Code on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, premises considered, this petition for review is DENIED and the Decision dated 17 September 1999 and Resolution dated 27 March 2000 of the Court of Appeals are hereby AFFIRMED. Let the records of this case be remanded to the Labor Arbiter for the resumption of proceedings therein. No costs.

SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice

WE CONCUR:

REYNATO S. PUNO Associate Justice Chairman

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

DANTE O. TINGA Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Associate Justice Chairman, Second Division

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairmans Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

HILARIO G. DAVIDE, JR. Chief Justice