Embracing the Grievance: How to Reimagine the Mundane and Technical Process of CBA Problem Solving

August 1, 2024

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by Adam DeSorgo, AFM Symphonic Services Division Negotiator

“Oh, it’s such a minor violation, I don’t want to file a grievance over it.”

“We shouldn’t antagonize the management.”

“Filing a grievance will be provocative.”

“We’ve gone five years without filing a grievance because our relationship with management is good.”

It’s not uncommon to hear some variations of these statements when it comes to filing grievances. Full disclosure: I’ve said at least one of these things myself in the recent past. Most people fundamentally just want to get along. When serving on a committee, it can be disheartening to see the manager do everything possible to avoid talking to you. When key components of our jobs as orchestral musicians include blending tone, color, and timbre, matching intonation and articulation, playing with a section, and fitting in, it can seem like filing a grievance, when a problem arises, doesn’t comport with being a team player.

On the contrary, upholding the provisions of the collective bargaining agreement (CBA) that we have collectively bargained and ratified is protecting and strengthening the team. If we start to look at the grievance and arbitration process through a different lens—as an important problem-solving tool in our CBAs—then, it’s a tool we should not hesitate to use often.

Essentially, grievance arbitration allows workers and managements to resolve disputes during a contract term, without strikes or lockouts. The process is also faster and more cost-effective than litigating through the courts. As union members, we typically agree to this process to allow for periods of labor peace. So, another way to refocus the lens is to consider that a grievance is much less provocative than a strike.

There are other important reasons for us to go on the record when the employer violates the CBA. If such violations are repeatedly ignored, they become “practice,” and our ignoring them signifies a tacit agreement. Additionally, if an employee alleges any violations of federal laws, such as discrimination due to race, age, disability, or other protected classes—and if the CBA only allows for binding arbitration—that’s the process by which your allegation must be heard, not in court.

Nuts and bolts—When a musician first joins our union as part of an orchestra with a CBA, talking about grievances isn’t usually the priority. What follows is a short review of the mechanics and procedures of filing a grievance that is paraphrased from the AFM’s Grievance Processing handout. Whether you are a local officer, orchestra committee member, or a rank-and-file musician, having knowledge of the process can demystify it and allow us to flex our grievance muscles more regularly.

What does the CBA say?—It’s good practice for us to read our CBAs and ask questions of elected leadership if there are provisions we don’t understand. Contract language often states the simplest thing in the most complex way possible, so it’s perfectly normal to ask what things mean. But knowing the process is key to using it effectively, so always read your CBA.

Who can file?—Typically, because our local union is the party to the contract, the local files a grievance when the employer violates the contract. An orchestra committee may also begin the grievance process in its capacity as liaison to the local, but it’s important for local officers and committee members to communicate regularly and be on the same page. Federal law allows an individual musician to file a grievance and have it heard and resolved by the employer, so long as the local is also allowed to be part of the process and the resolution does not conflict with the CBA. In any case, however, the local will have the best resources to effectively process the grievance. Working together is always best.

Know your timeline!—Each CBA is different, so pay close attention to what it says. Orchestras that play together less frequently often need longer timelines because problems don’t get reported as quickly. While some contracts allow for grievances to be filed a certain time after an incident was “reasonably known to have occurred,” getting into the habit of reporting problems to your OC or local leadership as they arise makes the whole grievance process much more effective. The bottom line is, if the deadline passes at any stage, you’re out of luck.

Writing the grievance—Spell out the details of the grievance, the date of its occurrence, and the specific article of the CBA that the employer has allegedly violated, as well as any past practices that may apply. If there is a claim of discrimination, outline the employer’s actions that were discriminatory. Then, specify what remedy would be sought, using “including, but not limited to,” as well as “cease and desist” language. The remedy can include reinstatement, making whole the losses a musician may have incurred because of the violation, and removal of any disciplinary records.

Investigation—Investigation is a critical part of grievance handling. If you are a musician asking for a grievance to be filed on your behalf, be prepared to provide the local with all relevant information. The local can also request relevant documents from the employer as well as interview the aggrieved party and any witnesses.

Meeting the employer—Some CBAs allow for an informal meeting as an initial step in the process. Whether it’s a “premeeting” or the first meeting outlined in the contract, it’s crucial to ask questions, and get the employer talking. Carefully document their answers and positions.

Further steps—After the initial steps in the process, the union should take a bird’s-eye view and determine whether to negotiate a settlement, withdraw the grievance, or proceed to arbitration. These determinations are always based on the specific facts, as there are times when it may be more advantageous to withdraw “without prejudice” and save the fight for another situation. If the grievance is withdrawn, make sure the musicians involved understand why and agree.

In evaluating whether to take a grievance to arbitration, the union should consider the standards an arbitrator would apply.

Does it always have to go that far? Not necessarily. Simply filing the grievance and having the conversation with the employer can sometimes solve the problem quickly. Then, there is a written record of both the problem and the resolution, which can be useful when bargaining the successor CBA.

The more we avail ourselves of this tool, the more we demonstrate seriousness in ensuring all our members are treated fairly under the contract. If solving problems in a formal way dissuades employers from engaging in problematic behavior, then all the better.

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