From #146, January - February 2010

A Cooperative Grievance Procedure

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What recourse do co-op employees have if adversely affected by a management decision? How do they contest the wording of a performance review, the amount of a pay raise, a promotion denied, a written warning, a termination or a layoff?

Then there are those high-profile personnel decisions—usually terminations—that polarize the staff and spill over into the community. Board members receive calls at home from concerned members, rumors spread around town, local media pick up the story, and productivity suffers as employees wonder among themselves what happened—and talk about it with customers.

In these situations, there is often strong pressure for the board to get involved. However, a board that plays “court of last resort” gets pulled off its own agenda by the time-consuming task of gathering evidence from all parties. If the board reverses the general manager’s decision, it undermines her authority and disrupts accountability.

Anecdotal evidence indicates that the vast majority of potential grievances get resolved without resort to a formal procedure. Through some combination of a management “open door policy,” the efforts of a human resources manager and, in some co-ops, the support of a staff advocate, employees who feel unfairly treated get a hearing, are provided with useful contextual information, and either reach some desired accommodation or accept the situation as is.

The absence of grievances may indicate effective ordinary communication channels, but it could mean that employees won’t use the grievance procedure because they don’t see it as objective or fair. In interviewing hundreds of co-op employees while conducting employee surveys, I heard comments such as:

  • Since the general manager gets the final say, what’s the point?
  • I’m afraid of retaliation if I do file a grievance.
  • Though I am aware of the procedure, my grievance won’t be taken seriously.

For those rare but challenging situations that cannot be resolved informally, co-ops need a grievance procedure ensuring fairness and impartiality to employees, while not interfering with management’s accountability to the board of directors.

Out of this need, the Cooperative Board Leadership Development program of CDS Consulting Co-op sponsored a project to develop a cooperative model grievance procedure. A task force (see sidebar, right) combining board, manager and employee perspectives came up with a model that met our criteria for a grievance procedure.

The model grievance procedure:

  • Is available to all employees who have ­successfully completed the trial period;
  • Provides a helpful but impartial intake mechanism;
  • Defines reasons to grieve, without being too restrictive;
  • Is user-friendly enough that employees will use it instead of working around it;
  • Provides a credible end point to conflicts that have boiled over into the public eye; and
  • Will not involve the board of directors in any grievance, but allows the general manager to report to the board that a fair and thorough process exists for settling grievances.

After we developed a first draft, we solicited and received feedback from co-op HR managers, general managers, board presidents and consultants. In the light of their feedback, we created four different versions of our model that give
co-ops choices based on their organizational needs and values.

Core elements
Following are core elements of the cooperative model grievance procedure:

1. An intake channel for the grievance that supports the employee in navigating the grievance procedure. For larger co-ops, the HR manager would be the primary intake channel. In a small co-op, an assistant or department manager may be viewed by other employees as a bridge between themselves and the general manager and could be assigned an overt role as intake channel for grievances.

Employees in some co-ops, such as Brattleboro Food Co-op, elect a staff advocate while in others, such as Wheatsville, they elect a staff council (called in Wheatsville’s case the Communications Team), to be available for staff who want support in communicating with management.

2. Defining the grievance in terms of existing policy. Based on a concept from the Industrial Cooperative Association, our model requires all grievances to fall into one of three categories.

  • A claim that a management decision violates existing co-op policy.
  • A claim that a management decision creates an unfair situation for which no policy exists.
  • A claim that a management decision duly following co-op policy creates an unfair situation because the policy itself is inherently unfair or discriminatory.

3. A grievance committee composed of randomly selected management and non-management staff. Three versions of the Cooperative Model Grievance Procedure use a committee to hear the grievance and arrive at a finding—i.e., a determination of a policy violation or an unfair decision in a situation where no policy exists, or an inherently unfair policy. Whether the committee has the power to actually overturn a management decision or only to make a recommendation depends on the version of the model.

We recommend a “jury duty” approach to the selection of the committee. By randomly selecting some members from a pool of eligible non-management staff, and others from the pool of management staff, the committee is more likely to be impartial—and be perceived as impartial—than if the members volunteer to serve or are specifically asked to serve for a particular grievance.

4. Offering professional mediation on the terms of separation for terminated employees. In the shock of losing a job, people may not absorb all the facts. Mediation provides a chance to hear and be heard, which allows some to move on instead of dwelling on the hurt and humiliation of being fired. As the director of a community mediation program explained, “People get a chance to express themselves, clarify information, and sometimes reach agreements about severance pay or a neutral reference.”

5. A separate process for harassment and discrimination claims. Because there are legal issues involved, harassment and discrimination claims need to go through a process different from the one applied to other claims of unfair management. Management needs to conduct a fact-finding investigation, using either inside (HR) or outside (professional investigator) expertise. Based on the findings, management then has to take action.

6. A statute of limitations for filing a grievance. While we did not think the exact number of days or weeks was important, the task force did agree that there should be some limit on the time window in which an employee can file a grievance about a management decision. For the versions of the model that allow an employee to grieve a termination, the time frame should be no more than a week or 10 days.

7. Evaluation of the process after each grievance procedure has concluded. An evaluation will assess which elements of the procedure worked well and which did not, so that the co-op can refine the procedure for future use. For an internal evaluation, the members of the grievance committee, the employee who filed the grievance, the managers whose decision was appealed, the staff advocate(s) and the HR manager, if involved, are asked to write down their comments on the procedure.

An external evaluation could be conducted by an outside expert—an independent consultant, an arbitrator, a director of a local mediation center—every few years, or after a particularly contentious grievance. After reviewing the documentation and interviewing the participants, the evaluator comes up with a finding about the fairness, thoroughness, and objectivity of the process and makes recommendations for future procedural improvements as needed. The results of this evaluation could be used in the general manager’s monitoring report to the board on staff treatment policies.

Four Versions
Version 1. The grievance committee makes the final decision. Terminations can be grieved. This is the task force’s preferred version. ( See flowchart, page 17. )

Version 2. The grievance committee makes the final decision on all grievances except terminations. Terminated employees are not allowed to file grievances although, as in all versions, they can request a professionally conducted mediation on the terms of separation.

Version 3. The grievance committee makes recommendations and the general manager makes the final decision after weighing the committee’s recommendations.

Version 4. There is no grievance committee. If internal mediation attempts fail, the grievance is decided by an outside arbitrator.

Elements of the four versions can be mixed and matched. For example, the option of outside arbitration can be added as a final step of the grievance procedure in Versions 1, 2 and 3. Or mediation by an outside professional could be an option for non-termination grievances in all four versions.

Optional elements
Outside arbitration as the final step for terminations. Version 4 of our model sends all grievances, including terminations, to a professional outside arbitrator to decide. In the other three versions, a final step could be added in which either the general manager or the grieving employee could appeal the grievance committee’s finding to an outside arbitrator. The scope of the arbitrator’s authority can be set at something less than reversing a manager’s decision to terminate an employee. For example, an arbitrator could be tasked with:

  • Determining whether the termination falls into one of the three grounds for a grievance;
  • Determining whether management is at fault; and if so,
  • Awarding cash compensation to the employee, without reinstating the employee.

Arbitration is expensive (though less so than a lawsuit), and binding arbitration could be undertaken on the condition that the parties waive the right to sue in court. In the communities represented by the co-ops in this task force, arbitration costs started no lower than $350 an hour. Some state laws prohibit employers from requiring employees to pay for any part of ­arbitration.

General manager as final arbitrator. In large co-ops with multiple layers of management, when the general manager can be credibly seen as removed from the management decision being grieved, an employee who is dissatisfied with a grievance committee’s finding could ask the general manager to review the case. This would not be perceived as a reasonable final recourse for a situation where the general manager was directly involved in the decision being grieved.

Talking points for boards
With a grievance procedure in place, directors can say to employees or members who ask about a controversial personnel decision:

  • We have a procedure for employees to use.
  • We check regularly (monitor) to make sure it is working properly.
  • We can’t discuss the particulars of a disciplinary action out of respect for employees’ privacy.
  • We have confidence that our grievance procedure is fair and thorough, and invite anyone who feels unfairly treated to use it.

Finally…
This model is intended as a work in progress, summarizing the best thinking of the co-ops involved in this project at this moment in time. Feedback from co-ops using the model will allow us to periodically update the model with ­clarifications and improvements based on user ­experience.

Cooperative Model Grievance Task Force

  • Phil Brodeur, manager of employee services, Brattleboro Food Co-op
  • Travis Hance, general manager, Syracuse Real Food Co-op
  • Chuck Marston, staff council, Community Food Co-op (Wa.)
  • Steve Peterson, board vice president, Oneota Community Co-op
  • Laura Schmidt, human resources manager, Madison Market
  • Ray Wilder, communications team, Wheatsville Co-op
  • Carolee Colter, CDS Consulting Co-op—project manager

Resources
Available in the Cooperative Board Leadership Development library at http://cdsconsulting.coop/cbldlibrary:

  • Flow charts for all four versions of the model grievance procedure
  • Model grievance policy for each version, to be adapted for an employee handbook
  • Detailed instructions for a grievance ­committee
  • Grievance filing form
  • Confidentiality agreement form
  • Sample monitoring report from a manager to the board on a staff treatment policy ­concerning grievances
  • Grievance procedure evaluation form

 

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