Deﬁnitions for Common Terms
Unions have developed a special vocabulary to describe much of what we do. Deﬁnitions are given here for the most commonly used terms in the grievance handling arena:
Agency Shop: A contract provision under which employees who do not join the union are required to pay a collective bargaining service fee instead. This service fee is usually the same as monthly dues.
Arbitration: Methods of settling a labor-management dispute by having an impartial third party decide the issue. The decision of the third party (arbitrator) is binding except under very unusual circumstances.
Award: The ﬁnal decision of an arbitrator which is binding on both parties.
Bargaining Representative: Union designated by a government agency, such as the National Mediation Board, or recognized voluntarily by the employer, as the exclusive representative of all employees in the bargaining unit for purposes of collective bargaining.
Bench Award: An award immediately following a hearing, after a brief executive session.
Best Evidence Rule: A rule that favors the use of primary evidence as distinguished from secondary. This is a protection against mistaken or fraudulent admissions.
Brief: A concise statement of fact and law in support of a party’s case which is prepared by the advocate and which is then submitted to the arbitrator. Briefs are most commonly used after the arbitration, but occasionally prior to it.
Cease and Desist Order: An order to stop an action, to not repeat the action, and to take action to undo the wrong. A cease and desist order issued by an arbitrator requires the guilty party to stop any conduct found to be in violation of the contract or the law and to take positive action to remedy the situation.
Closing Argument: A ﬁnal oral statement made by each party in arbitration. Closing arguments and post-hearing briefs serve much the same purpose. The parties may elect to do one, or the other, or both.
Collective Bargaining: A process in which workers, through their bargaining committee, deal as a group to determine wages, hours and other conditions of employment. Normally, the result of collective bargaining is a written contract which covers all workers in the bargaining unit.
Concur: To agree with the award.
Continuing Violation: A violation of a law or contract which is continuing in nature and which, therefore, is not barred by any time limitation, even though the violation began before the time limitation period began.
Cross Examination: The examination of a witness by the party which did not call the witness. Its purpose is to examine the witness to test the truth of that evidence, or to further develop or clarify it, or to discredit the witness. In labor arbitration, cross examination may go beyond the evidence given in direct examination. Leading questions may be asked.
Direct Examination: The questioning of a witness by the calling party. This is done either by asking the witness to tell their story in narrative fashion or by asking for speciﬁc answers to speciﬁc questions. Leading questions may not be asked.
Dissent: To disagree with the award.
Duty of Fair Representation (DFR): A union’s obligation to represent all people in the bargaining unit as fairly and equally as possible. This requirement applies both in the creation and interpretation of collective bargaining agreements. A union is said to have violated its Duty of Fair Representation when a union’s conduct toward a member of a collective bargaining unit is arbitrary, discriminatory, or in bad faith. A union representative, for example, may not ignore a grievance which has merit, nor can that grievance be processed in a perfunctory manner. It should be noted, however, that the employee in the bargaining unit has no absolute right to have a grievance taken to arbitration. The union is obligated to give fair representation to all union members, and also to collective bargaining unit members who have not joined the union in right-to-work states.
Equal Opportunities Employment Commission (EEOC): Federal Government agency which administers most discrimination lawsuits.
Exhibits: The submission of documents by either side to the arbitrator as part of the proofs of the offering side’s case. Exhibits should be introduced through testimony of a witness who lays a foundation as to the authenticity and/or relevance of the exhibit.
Expedited Arbitration: An effort to streamline the arbitration hearing by reducing both time and cost. Transcripts and post hearing briefs are usually eliminated. Often the arbitrator issues a decision upon the completion of the hearing or shortly thereafter.
Family and Medical Leave Act (FMLA): Federal law establishing a basic ﬂoor of 12 weeks of unpaid family and medical leave in any 12-month period to deal with birth or adoption of a child, to care for an immediate family member with a “serious health condition”, or to receive care when the employee is unable to work because of his or her own serious health condition. This leave need not be paid leave, unless there are alternative provisions for paid leave, such as in a collective bargaining agreement. Insurance coverage is continued during the leave on the same basis as if the employee were actively working. Enforcement of these rights is through the Department of Labor, and through the Federal Courts.
Grievance: Any type of worker dissatisfaction including violations of the collective bargaining agreement, violations of law, violations of employer policies, violations of fair treatment, and violations of past practices. The deﬁnition of a grievance is usually part of the contract, and therefore may vary from one contract to another.
Grievance Procedure: Procedures usually established by a collective bargaining agreement to resolve disputes, problems or misunderstandings associated with the interpretation or application of the collective bargaining agreement. It consists of several steps with the last step of the procedure usually being arbitration.
Group Grievance: A grievance on behalf of many people in a workplace in order to show management that members are united in their opposition to a management’s action.
Hearsay: The report of an oral or written statement made by a person who is not a witness to the proceeding which is introduced to prove the truth of what is asserted. Hearsay evidence is often accepted by arbitrators “for what it is worth.”
Held in Abeyance: By mutual agreement, the union and management can agree to hold a case “in abeyance” for a period of time. This means that all activity on the case is suspended temporarily. One example is to hold a contract case in abeyance until negotiations are concluded.
Impartial Umpire: Term often applied to a permanent arbitrator, named for the life of a union con- tract, and usually selected by mutual agreement. The term indicates his function of presiding over the union contract to enforce observance of it by both parties.
Joint Exhibit: A document submitted to the arbitrator that both sides agree is authentic and pertinent to the issue to be decided. Joint exhibits usually include a copy of the contract and a record of the grievance.
Just Cause: A reason an employer must give for any disciplinary action it takes against an employee.
Leading Questions: One in which the questioner suggests the desired answer by the form of the question. Usually leaving the witness to merely say “yes” or “no.” Leading questions are permitted in cross examination and when a party calls an “adverse witness.”
Made Whole: A catchall phrase used in grievance and other legal action where a remedy is sought from an employer. Often used in discharge and discipline cases where the union seeks to have a worker who had been wrongly discharged or disciplined returned to work and reimbursed all wages, beneﬁts, or other conditions lost due to an employer’s unjustiﬁed action.
Management Rights or Prerogatives: The claimed rights of employers to control operational aspects of the workplace.
Mediation: (Conciliation) The efforts of a third party to help parties to reach agreement in a labor dispute. Mediators help clarify issues and suggest possible solutions. Mediation, unlike arbitration, is not binding on the parties. Grievance mediation is often used prior to arbitration.
Member in Good Standing: A union member in good standing is one who has fulﬁlled requirements for the organization and who has not voluntarily withdrawn from membership, been expelled, or suspended.
Mitigation: Circumstances that explain what occurred and why that reduces the employee’s guilt.
National Mediation Board (NMB): Established under the Railway Labor Act, the NMB conducts representation elections, regulates major disputes, and appoints arbitrators and boards to decide minor disputes in the railway and airline industry. Unlike the National Labor Relations Board (NLRB), the NMB has no enforcement powers. It does not adjudicate “unfair labor practices.” To the extent that there is any adjudication of employer conduct deemed to be contrary to the RLA, that takes place before the Federal Courts.
Opening statement: A brief statement made at the opening of a hearing, or prior to the presentation of evidence, by the parties concerned which acquaints the arbitrator with the nature of the dispute and with the evidence they intend to present. In discipline cases, management is heard ﬁrst, and in other cases, the union is heard ﬁrst.
Parol Evidence Rule: Evidence given by a witness in arbitration as to the making of a contract. This evidence may refer to the “bargaining history” of negotiations between the union and management and is used to help determine the meaning of the contract.
Past Practice: A customary way of doing things not written into the collective bargaining agreement. Past practices can sometimes be enforced through the grievance procedure if the practice has been longstanding, consistent, and accepted by the parties.
Railway Labor Act of 1926 (RLA): This law regulates labor relations in the railway and airlines industries, guaranteeing workers in these industries the right to form a union and bargain collectively. The RLA severely controls the timing and right to strike. Also, bargaining units under the RLA are usually nation-wide, making it more difﬁcult for workers to form a union.
Rank and File: The members of a union.
Supervisor: Those employees who have management rights such as the rights to hire, ﬁre, or recommend such action. The employees who are deﬁned as supervisors under the NMB are not per- mitted to become members of the bargaining unit at the work location. In organizing campaigns, most employers will try to enlarge the ranks of their supervisory personnel. The employer will try to keep a certain group of supervisors as his anti-union workforce for future labor disputes.
Title VII of the Civil Rights Act of 1964 (as amended): This Act makes it illegal for an employer to discriminate against an employee on the basis of sex, race or national origin. This usually involves issues of hiring, promotion, or termination, although occasionally other issues will be involved. In order to enforce the Act, a charge must be ﬁled with the Equal Employment Opportunity Commission within 180 days of the discriminatory action complained of. The EEOC will investigate the charge and, eventually, either ﬁnd that there is or is not probably cause to believe that the employer discriminated illegally. The charging party is entitled to sue in Federal Court after the EEOC makes a ﬁnding, or earlier if the investigation takes too long. Prior to making a ﬁnding, the EEOC will attempt to mediate the issue to resolve the problem. The Act further calls for a deferral of charges to state agencies which are charged with jurisdiction over the same type of actions.
Unfair Labor Practices: Those employer or union activities classiﬁed as “unfair” by federal or state labor relations acts. Under the NLRA, employer unfair labor practices include employer threats against protected collective activity, employer domination of unions, discrimination against employees for collective activity, and employer failure to bargain in good faith with union representatives. Union unfair labor practices include failure to represent all members of the bargaining unit and failure to bargain in good faith, secondary boycotts. The RLA and many state public sector labor laws contain deﬁnitions of unfair labor practices which are similar to the NLRA deﬁnitions.
Unilateral Change: Any change an employer makes without the union’s consent. The subject of unilateral change is ever changing due to Board and court rulings. However, unilateral change falls into three categories; unilateral change before a ﬁrst time contract, during bargaining, and during the contract’s terms. The Board recognizes that an employer must bargain all changes regarding hours of work, rate of pay, and other conditions of employment with the employee’s bargaining representatives. Generally, these changes must be bargained to impasse before a change is implemented.
Union Security Clause: A provision in a collective bargaining agreement designed to protect the institutional life of the union, such as union shop and union dues check-off clauses.
Union Shop: Form of union security provided in the collective bargaining agreement which re- quires employees to belong to or pay dues to the union as a condition of retaining employment. It is illegal to have a closed shop which requires workers to be union members before they are hired. The union shop is legal, except in so-called right-to-work states, because it requires workers to join the union or pay dues within a certain time period after they are hired.
Weingarten Rights: The right of employees covered by the NLRA to request union representation during investigatory interviews if they reasonably believe that the interview could result in their being disciplined. Weingarten rights also guarantee the right of union representatives to assist and counsel employees during interviews which could lead to discipline. Courts have held that these rights do not extend to the Railway Labor Act, thus it is important to negotiate these protections into our contracts.
Worker’s Compensation Laws: The states have passed laws to provide for a no-fault compensation system for employees who are hurt or killed on the job. The speciﬁc provisions of the laws vary from state to state. Usually these laws provide for compensation to be paid during the period of an employee’s recovery from a work-related injury or illness, and also for the permanent dam- age to the employee due to the work-related injury or illness. Normally these claims are contested through a state administrative agency.
Unemployment Compensation Laws: The states have passed laws providing for compensation to employees who lose jobs, normally through no fault of their own. This usually becomes applicable in furlough situations. The eligibility requirements for unemployment compensation, as well as the amount and duration of the compensation, may vary from state to state.