A grievance is any dispute or difference arising between any employee and managementor between the union and management. Most collective bargaining agreements define, in general, what the parties have agreed to consider being a grievance. Unions usually prefer a broad definition that recognizes any dispute, while management prefers to limit grievances to the meaning or application of a particular clause. The primary function of the definition is to outline the parameters of what types of disputes may be grieved.

Why Do We Need It?

· Settles workplace problems in a systematic way.

· Helps to establish and protect workers’ rights.

· Gives workers a voice on the job by providing them with an opportunity to tell their side of the story.

· Promotes workplace harmony.

What Is It’s Purpose?

· To enforce the contract

· To interpret the meaning and intent of the contract, including ambiguous or silent contract language.

How Does It Work?

· Defines workplace problems that are grievances.

· Identifies the steps to follow to remedy the problem.

· Identifies the union and company representatives involved in each step.

· Imposes time limitations for filing grievances, responding to grievances and appealing grievances.

· Stipulates at each step whether the grievance presentation is oral or written.

· Places the burden of proof on management particularly with discipline and discharge cases.

Types Of Grievances

· Individual/Personal Grievance: Affects only one person (Sue has been disciplined).

· Group Grievance: Department or category of people in the shop or store (unsafe chemical in one department).

· Principle Grievance: Deals with a basic contract principle (such as seniority, vacation, etc.) all members involved.

· Union or Policy Grievance: Initiated by union on behalf of worker or entire store or plant (for example, overtime not being distributed properly), or member is not willing to file individual grievance.

Generally, a grievance exists where there is a violation of:

The Contract: These are the easiest grievances to win, especially where the violation is clear-cut and management is not overly belligerent.
The Law: There may be a violation of municipal, state or federal law. Remember that the law always supersedes the contract.
Company Regulations: Management generally cannot violate its own rules to harm one or more workers. A personnel regulation may be overlooked in hiring or firing of a foreman may have brought liquor into the plant and then fired a worker for the same violations. Uneven enforcement of company or agency regulations, as well as management disregard for its own rules, can provide the grounds for a grievance.
Workers’ Rights: Discrimination and workers’ rights cover a broad range of incidents or practices. Discrimination occurs when two people are treated differently under the same conditions in such a way as to harm or treat unequally one of them. Discrimination may include, and is not limited to, race, sex, age, religion, sexual orientation, national origin, personality, looks, union activity, past incidents and experiences, and political affiliation.
Past Practices: Arbitrators will sometimes consider violations of long-standing practices, accepted by the union and management, as grounds for ruling in favor of the union. If, for instance, the employer has allowed a 15-minute wash-up for years and then suddenly disciplines a worker for leaving her station 15 minutes before clock-out, the union usually has a strong case.

Is It Really A Grievance?

Stewards know that the word grievance is one of the most misunderstood words in the workplace. Some workers believe that anything they don’t like about work is a grievance. Others put up with clear violations of their legal rights by management but they don’t want to “rock the boat.”

So how does a steward know they have a grievance? The first thing to do is to investigate the situation.

Investigating A Grievance

It is not always easy to identify workplace incidents as grievances. In order to totally understand and work out a solution to problems, stewards must get all the information about the incident they are investigating. Here are five questions stewards should ask when investigating a grievance:

1. WHO … is involved? Who is the worker; who is the supervisor; who are the witnesses? Anyone else?

2. WHAT … really happened? What did the worker do? What was the sequence of events? What was said? What did management say, do or fail to do? What has happened in the past? What should be done to remedy the situation?

3. WHEN … did it happen? Time, date, etc. Any special significant holidays or days off that may tie in?

4. WHERE … did it take place? Identify the exact location by workstation, building, department, etc.?

5. WHY … is this incident a grievance? Which contract clause(s) applies? Was there a background of action which went before? Why did the member take this action? Why did management take action?

Always use the 5 W’s when investigating a grievance:

Who…What…When…Where…Why

Take Good Notes: Good stewards document everything! Notes are essential because:

· You won’t remember everything.

· A written record can be used by others who may decide to handle the complaint as a grievance.

· Notes help you compare conflicting accounts of the same situation.

· Writing down information shows everyone that you take your job responsibilities seriously.

Notes can be used as evidence that the union has conducted an investigation should a worker later claim that the union failed to properly represent him or her.

How to Document

¢ Try to get direct quotes from the worker. Use quotation marks “ ” to indicate quotes in your notes.

¢ Ask the worker to repeat the information so you can record it accurately.

¢ When you are finished, go over your notes with the worker.

¢ Complete the grievance investigation form.

Grievance Procedure

A grievance procedure is an agreed-upon channel for complaints; a list of steps and who is involved at each step; and a provision for time limits at each step in order to discourage stalling.

The grievance procedure:

· Defines workplace problems that are grievances.

· Identifies the steps to follow to remedy the problem.

· Identifies the union and company representatives involved in each step.

· Imposes time limitations for filing grievances, responding to grievances and appealing grievances.

· Stipulates whether the grievance presentation is oral or written at each step.

· Places the burden of proof on management particularly with discipline and discharge cases.

The grievance procedure may vary depending on the collective bargaining agreement. A typical grievance procedure may have four steps, referred to as “Step 1,” “Step 2”, etc. through “Arbitration.”

Grievance Arbitration

(Arbitration is a method for resolving disputes in which a third party is called in to make a decision on a grievance case. The arbitrator’s decision is binding on both parties)

*Note: Time limits on company response begin only after the grievance is presented in writing. Grievances should be moved to the next step as rapidly as possible. Serious grievances, such as discharge cases, are often introduced as Step 3 of the grievance process.

Preparing A Grievance

Once you have collected the facts of the grievance using the five W’s we discussed before, it is now time to write the grievance. The number one rule in writing a grievance is to keep it simple! Here are three steps in writing a grievance:

1. What Happened

State the grievance issue simply—who, what, when. The grievance form is not the place to argue the grievance. That should happen in the grievance meeting.

Right: On or about May 1, 2005 Brenda Coles, clock # 54289, was denied her bid on the second shift forklift job.

Wrong: The forklift job should have been awarded to Brenda Coles. Pete Smith is a rotten foreman and didn’t give Brenda the job because he hates Brenda and wanted to date Brenda’s daughter, but she wouldn’t go out with him. Because of this and because Pete is an idiot he refused to give Brenda the job.

2. Why That is Wrong

State what part of the contract, law, past practice, etc. was violated. A grievance can be filed over a violation of the contract, a change in a well-established past practice, violation of a law (OSHA, FMLA, etc.) or a violation of an employer policy. Always state that the employer may have violated other parts of the contract:

Right: By not giving Orville the job award, the employer is violating Article 3, section 2 of the contract, plus all other relevant sections of the contract.

3. What You Want

Clearly state the remedy the union is seeking.

Never leave out the remedy – otherwise the employer can agree they made a mistake, but offer no solution.

Right: Make Brenda Coles whole, including but not limited to an immediate transfer to the forklift operator job and pay her the $1.00 an hour pay rate difference for the time missed on the forklift job, including overtime.

In cases of discipline, discharge or involving money, the catch all phrase to use is “The employee should be made whole.” This phrase covers all the parts of the remedy which may include wages; reinstatement in the health insurance program with no waiting period; reinstatement in the pension program with restoration of all back service and credits; vacation time; and the list could go on. The phrase “be made whole” is a legally accepted catch all phrase that covers all the situations.

The union still has the right to negotiate a different remedy from the one listed on the grievance form.

Example: A grievance on a termination case stated the fired employee should be returned to work and be made whole. The final settlement was a two week suspension. In this case the remedy was that the employee was made whole except for losing two weeks pay.

Presenting The Grievance

A union representative should have a cordial, professional, business-like relationship with the supervisor. A firm but fair approach to problem-solving usually makes the job easier for both parties.

When preparing to present or presenting the grievance a representative should do or consider the following:

1. Prepare Your Facts Beforehand:

a. Outline on paper the facts in a logical, chronological sequence.

b. Consider what the supervisor’s response will be, and what you will say in return.

c. Review the facts of the case with the employee alone, before you meet with the supervisor.

d. Check your case with other representatives, union officials, or others who might be knowledgeable about the issue.

2. Stick To The Facts when speaking with the supervisor. Do not jump from topic to topic. Do not get sidetracked on unrelated issues.

3. Listen! Repeat key statements made by the supervisor. This will tell the supervisor that you are listening and paying attention to what is being said.

4. Narrow The Focus Of The Dispute, if possible. Look for possible areas of compromise and settlement.

5. Keep Your Cool! Do not let your emotions override the facts of your case.

6. Avoid Bluffs And Threats. Some day a supervisor will call your bluff!

7. Respect The Employer Representative and treat him or her as you would like to be treated.

8. Do Not Delay The Settlement Of The Dispute. Watch for stall tactics by the employer.

9. Do Not Horse-Trade Grievances, for example the employer offers to settle a grievance if all other grievances are dropped by the union.

10. Settle Grievances At The Lowest Possible Level.

11. Avoid Disagreements With The Grievant In Front Of The Supervisor. If you need to talk with the grievant during the presentation of the grievance, do so privately.

12. The Burden Of Proof Is On Management particularly with discipline and discharge cases. This does not mean the supervisor should be put on the defensive.

13. Be Sure To Follow-Through And Follow-Up On The Grievance. Make sure the grievance follows the proper channel, even after it leaves your hands.

Communications Skills For Stewards

Here are some quick tips for writing, listening, speaking, and handling meetings.

Writing

· Use short words, phrases and sentences and give only a few important facts.

· Get to the point quickly by listing your ideas in order of importance.

· Use basic, everyday language, don’t use slang.

· To avoid confusion, don’t use initials.

· Check your writing to make sure it is clear and without any errors.

Listening

· Stop talking: You can’t listen well while you are speaking.

· Concentrate on what is being said: not on who is saying it. Focus your attention on the message, the choice of words, the idea being presented and the feeling for the subject.

· Ask questions: When you need clarification or don’t understand what is being said and also to show that you are listening. But never ask questions certain to embarrass anyone.

· Don’t interrupt: Allow the speaker time to formulate ideas and present them in a natural style.

· Get rid of distractions: Put papers, pencils and other items away; these can distract you and/or the speaker.

· Focus on the main points: Concentrate on the main ideas and not the illustrative material; examples, stories and statistics are important but usually are not main points. Focus on the concept rather than supportive information.

Tips For Speaking With Management

· Take deep breaths: Just before speaking, take two deep breaths.

· Wiggle toes: Move excess nervous energy out of the upper body.

· Know your exit line: Prepare a closing line in case your mind goes blank.

· Speak slowly: Most people talk too fast.

· Use your own words: Don’t try to copy someone else’s style.

· Decide in advance what to do with your hands: whatever is comfortable.

· Remember that some fear is good: fear means you care about what you’re doing.

Meeting With Management

· Be firm.

· Be a good listener.

· Don’t be too ready to settle.

· Don’t be sidetracked; stick to the point.

· Hold your temper.

· Don’t talk too much; stick to the point.

· Demand the same respect from management as you give them.

· Disagree with dignity.

· Take notes.

· Prepare questions in advance.

· Stick together; don’t show any disagreement between union members.

· Watch body language.

Attitude And Body Language

· Look at the speaker: The face, mouth, eyes, hands and body have a language of their own. Direct eye contact helps you concentrate and shows you are listening.

· Leave your emotions behind: Your worries, problems and fears are barriers to good communications and detract from your listening skills.

· Control your anger: try not to get angry at either the speaker or the message.

· Empathize with the other person: Try to put yourself in the speaker’s place so that you can better understand the message.

· Don’t argue mentally: It’s a mistake to be preparing your answer while the speaker is talking. You can not listen and prepare an answer at the same time.

· React to ideas, not to the person: Don’t let your personal bias toward the speaker influence your interpretations of the message. The ideas can be good even if you don’t care for the person.

Sources

We prepared this document using many materials in the Leadership Development Department, UFCW International Union. We also used information from the following publications:

· The Legal Rights of Union Stewards, Third Edition, by Robert M. Schwartz published by Work Rights Press, Cambridge, MA. 1999.

· Solidarity in Action: A Guide for Union Stewards, published by the Labor Center, University of Iowa, Iowa City IA. 2005.

· The Union Steward’s Complete Guide edited by David Prosten and published by Union Communication Services. Washington, DC. 1997.

http://www.ufcwlocal186d.com/new_page_61.htm

The California Department of Labor developed fairly clear guidelines under the federal Fair Labor Standards Act. Shortly thereafter the Division of Labor Standards Enforcement (Labor Commissioner) adopted similar policies for California employers. The following is a summary of the Labor Commissioner’s policies regarding making deductions from an exempt employee’s salary.

1. Employees exempt from the overtime requirements of California law under the Professional, Administrative or Executive exemptions must be paid a salary. This means the employee must receive the same amount of pay regardless of the number of hours worked each week.

2. If an otherwise exempt employee performs no work during a full workweek, the employer does not have to pay the employee any salary.

3. If the employee does not get sick days, you cannot deduct anything from the salary if the employee takes a sick day.

4. If an otherwise exempt salaried employee absents himself or
herself for a full day or more on personal business, such absence may be deducted on a pro rata basis from the salary owed.

5. If an exempt employee performs any work during the work day, no deduction may be made from the salary of the employee as a result of what would otherwise be a “partial day absence.”

6. If the employer has a PTO policy (as opposed to a sick leave
policy), and the exempt employee exhausts the PTO, the employer can deduct the salary for partial day absences as long as the absence is at least four hours.

7. No deduction may be made from the salary of an exempt employee for absences occasioned by sickness or accident unless the absence for sickness or accident exceeds the weekly period.

8. Deductions may be made for absences in increments of full working day occasioned by sickness or disability (including industrial accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing full compensation for loss of salary occasioned by both sickness and disability and the employee has exhausted his or her leave under the policy. In other words, an employer cannot deduct for sick days unless it first gives the employee some sick days to exhaust and the employee in fact exhausts those sick days.

9. No Deduction From The Employee’s Salary May Be Made For Absences Occasioned By The Employer Or By The Operating Requirements Of The Business if the absence is less than a week. (i.e., if the employer shuts down the office for two days). If the employee is ready, willing and able to work, deductions may not be made for the time when work is not available. If the office closure is a full week, the employer does not have to pay employees for that week.

These policies are more strict than the Department of Labor’s polices under the FLSA. Because California employer must comply with whichever law is most strict, California employers should follow the Labor Commissioner’s policies.

If you have any questions about these policies or whether you company complies with the law, feel free to contact our office.
Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

Union Democracy makes unions stronger. The key to union democracy is an educated and active membership. This summary describes your rights under a Federal Law: the Labor Management Reporting and Disclosure Act (LMRDA). Several unions have printed this handout in their union newsletter, or posted it on union bulletin boards.

1. The Right to Equal Participation in Your Union

You have the right as a member of the union to participate equally in union affairs. You have the right to:

• Attend and participate in union meetings,

• Vote by secret ballot in local union officer elections, and other important election rights,

• Equal access to union publications in election campaigns,

• if voting on contracts is in your union constitution, you have the right to know what you are voting on,

• Due process if you are disciplined by the union.

NOTE: It is illegal for the union or the employer to retaliate against you, or threaten you, for exercising your rights under the LMRDA.

2. The Right to Essential Information

As a union member, you have the right to certain types of information:

• Copies of annual financial reports, including the LM-2 forms, available from the Office of Labor Management Standards–OLMS,

• Copies of union contracts and side agreements that affect your job,

• Copies of the union constitution and bylaws.

NOTE: You are free to publish the information in the reports and documents described above.

3. The Right to Free Speech in Your Union

Your right to free speech in the union is very broad. You are free to:

• Criticize union policies, officers, staff, or candidates,

• Discuss union policies and issues,

• Write about, sing about, draw cartoons about union representatives,

• Complain, protest, demand and advocate.

NOTE: You can not be disciplined for free speech. However, if you advocate leaving the union, or changing unions, your speech may not be protected.

4. The Right to Free Assembly

Like your rights to free speech, your rights to organize with your coworkers to make changes in your union are very broad. You can:

• Organize a committee or a caucus,

• Meet without official union permission or participation,

• Write and distribute leaflets, newsletters, etc.

• Run candidates for office,

• Take collective action to influence the union (pickets, buttons, etc.).

NOTE: Be careful not to represent yourselves or your group as official union representatives if you are not.

Enforcing Your Legal Rights:

Some parts of the LMRDA are enforced by the Department of Labor (Elections, Financial Reporting, Right to Information). Other rights you enforce through a lawsuit in Federal Court (free speech, free assembly, union discipline cases). Some rights can be enforced through State Court, also.

You may be required to “exhaust internal union procedures” before taking your case to the Department of Labor or Federal Court. This means you must first file an internal union protest or complaint, according to the procedures in your union bylaws/constitution—even if you believe that this is a waste of time. If, after four months (three months for election complaints), the internal charges have not been resolved, or you want to challenge the result, you may take your complaint outside of the union. If you do not exhaust the internal procedures, the union can not discipline you, but the court or Department of Labor may dismiss your complaint.

“From the website of the Association for Union Democracy. www.uniondemocracy.org. Email: info@uniondemocracy.org. 104 Montgomery Street, Brooklyn, New York, 11225; USA; 718-564-1114″

Union members have broad free speech rights in the union. You are free to criticize union officials and policies in any medium, including online. In addition, recent legislation on internet communications adds further protection to speech on web sites. Any attempt by the union to discipline members in retaliation for their free speech, or threats made to that effect, would be illegal. The law that protects your free speech rights in the union is the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), Title I.

If a provision of the union constitution openly restricts free speech, or is used to squelch free speech, that provision would be unenforceable in court.

The first thing you should do is call AUD. The best protection in this case is to let the members know what is happening: put it on the web site, get out a flyer. Free speech is unpopular with the officers? Time for more free speech! Remember, it is best if you act as an organized group of members: a committee or caucus in the union. AUD can help you learn how to do that, and offer advice. You may also need legal help.

What is a caucus? Most caucuses start out (and many remain) small informal groups of like-minded members of a union who wish to pursue some common goals. Most caucuses are independent of the union and they are certainly not subject to control by the union leadership. Nor do you have to register your caucus with the union.

There may be several caucuses in a union, including one or more organized by the union officers, themselves, for example, to promote their candidacies in an election or to advocate some point of view. (These are not to be confused with official union-sponsored caucuses, like a women’s caucus or people of color caucus. These official caucuses may be governed by the union bylaws and subject to control by the union leadership.)

Is a caucus different from a committee? No. Call it whatever you want. Some call their caucus a committee — for example: “The Committee for A Just Contract.” The name you pick may tell people what you are fighting for. You will probably want to make it clear in your literature that your caucus is independent of the union to avoid confusion about whether you are speaking as official union representatives. (Again, be careful not to confuse an independent committee with an official union-sponsored committee.)

Who can belong to a caucus or committee? That’s up to you and your fellow caucus organizers and members. Usually, a caucus will accept anyone who supports its goals and is willing to work to achieve them.

Do caucus members have to be members of the union? No. One of the larger union reform caucuses, Teamsters for a Democratic Union, accepts into the caucus not only union members, but also their spouses or significant others. Who is eligible to belong is up to the caucus members.

What kind of structure does a caucus have to have? Whatever works best for you. Some activists create a structure that resembles their union’s structure, with officers, bylaws, etc. Others are more informal, with an elected steering committee, or just a committee in which everyone participates equally. As time goes on, you may find that you need to formalize your structure and create bylaws. But at the beginning, don’t worry about structure. Focus on your goals and strategy — what it is you want to accomplish, and how you plan to get there — and get to work.

Do we need to incorporate into a 501(c)(3) tax-exempt organization or 501 (c) (5) labor organization? No. You can be an unincorporated membership association. Again, don’t waste your time and energy on the creation and administration of some elaborate legal structure. Do only what’s necessary to accomplish your objectives.

Of course, you will eventually need to raise funds, for example, to print leaflets, t-shirts, or send mailings, etc. You may want to charge yourselves dues or hold a raffle. You’ll want to be very careful with money. This is particularly important when it comes to union elections where there are often strict rules about use of funds. If you decide to open a bank account in the group’s name, your bank may require you to provide it with bylaws designating some officer who is authorized to handle money and sign checks. O.K. Now the time has come to adopt bylaws. But don’t write a book, just stick with the basics: what is the name of your organization, what are its goals, who is eligible for membership, how do you make decisions, who in your group has what authority, how can members change the bylaws.

Once your group has been around for a while, and you’ve decided to go for the long-haul, you may then find it helpful to set up a parallel, not-for-profit educational organization and perhaps seek funding from foundations. For example, Teamsters for a Democratic Union teams up with a related not-for-profit organization, the “Teamster Rank and File Research and Legal Defense Fund.” O.K. Now we’re talking about getting lawyers involved, incorporating, and filing for tax-exempt, Section 501(c)(3) status with the IRS. Generally speaking, however, less is more: less structure usually means more participation and greater flexibility.

To recap: the most important considerations when establishing a caucus in your union are going to be your mission and your strategy for implementing it. What do you want to change and how do you propose to make those changes. These are far more important than bylaws or tax considerations. Only after your caucus has gotten off the ground and started fighting big battles will you need to address such legal considerations.

Questions to consider: Where are you going and how will you get there? How are your goals related to the concerns of your coworkers? Do you just want new faces in the top positions? Or do you have a plan for changing the way the union works? Say you win office, what will make the new officers different from the people they replaced? What will you do differently? Do you want to change the union’s orientation toward management? Do you want to reorganize the union to make it more democratic? Will you make it easier for the members to vote you out than it was for you, when you were the opposition? Where do you plan to begin? Should you run for office or focus on organizing at the workplace? What role will members play? Will you educate your coworkers and get them involved in actions? How will you help members get hold of the information they need to be in control and hold their leaders accountable? All of this needs to be sorted out in your caucus if you want to be successful.

Remember, most caucuses start in someone’s kitchen, a restaurant, or a bar, just a convenient meeting place where you start sharing ideas with like-minded union brothers and sisters. The activists usually begin by tackling some manageable project, not reshaping the world overnight. As new members come on board and their talents are recognized and tapped, the caucus can then afford to become more ambitious. Successful caucuses usually start small and build through action and discussion.

http://www.uniondemocracy.org

The Labor-Management Reporting and Disclosure Act (LMRDA) guarantees certain rights to union members and imposes certain responsibilities on union officers. The Office of Labor-Management Standards (OLMS) enforces many LMRDA provisions while other provisions, such as the bill of rights, may only be enforced by union members through private suit in federal court. For more information contact the nearest OLMS field office listed on page 2 of this fact sheet. Union Member Rights

Bill of Rights – Union members have:

• equal rights to participate in union activities
• freedom of speech and assembly
• voice in setting rates of dues, fees, and assessments
• protection of the right to sue
• safeguards against improper discipline

Copies of Collective Bargaining Agreements - Union members and nonunion employees have the right to receive or inspect copies of collective bargaining agreements.

Reports - Unions are required to file an initial information report (Form LM-1), copies of constitutions and bylaws, and an annual financial report (Form LM-2/3/4) with OLMS. Unions must make the reports available to members and permit members to examine supporting records for just cause. The reports are public information and copies are available from the OLMS Internet Public Disclosure Room at www.union-reports.dol.gov.

Officer Elections – Union members have the right to:

• nominate candidates for office
• run for office
• cast a secret ballot
• protest the conduct of an election

Officer Removal- Local union members have the right to an adequate procedure for the removal of an elected officer guilty of serious misconduct.

Trusteeships – Unions may only be placed in trusteeship by a parent body for the reasons specified in the LMRDA.

Prohibition Against Certain Discipline - A union or any of its officials may not fine, expel, or otherwise discipline a member for exercising any LMRDA right.

Prohibition Against Violence - No one may use or threaten to use force or violence to interfere with a union member in the exercise of LMRDA rights.
Union Officer Responsibilities

Financial Safeguards – Union officers have a duty to manage the funds and property of the union solely for the benefit of the union and its members in accordance with the union’s constitution and bylaws. Union officers or employees who embezzle or steal union funds or other assets commit a Federal crime punishable by a fine and/or imprisonment.

Bonding – Union officers or employees who handle union funds or property must be bonded to provide protection against losses if their union has property and annual financial receipts which exceed $5,000.

Labor Organization Reports - Union officers must:

• file an initial information report (Form LM-1) and annual financial reports (Forms LM-2/3/4) with OLMS.
• retain the records necessary to verify the reports for at least five years.

Officer Reports - Union officers and employees must file reports concerning any loans and benefits received from, or certain financial interests in, employers whose employees their unions represent and businesses that deal with their unions.

Officer Elections – Unions must:

• hold elections of officers of local unions by secret ballot at least every three years
• conduct regular elections in accordance with their constitution and bylaws and preserve all records for one year
• mail a notice of election to every member at least 15 days prior to the election
• comply with a candidate’s request to distribute campaign material
• not use union funds or resources to promote any candidate (nor may employer funds or resources be used)
• permit candidates to have election observers
• allow candidates to inspect the union’s membership list once within 30 days prior to the election

Restrictions on Holding Office - A person convicted of certain crimes may not serve as a union officer, employee, or other representative of a union for up to 13 years.

Loans – A union may not have outstanding loans to any one officer or employee that in total exceed $2,000 at any time.

Fines - A union may not pay the fine of any officer or employee convicted of any willful violation of the LMRDA.

Last Updataed: 10/05/04

http://www.dol.gov/esa/regs/compliance/olms/members.htm

Under the principle of informed consent, the client/patient should have enoughinformation to make a knowledgeable, informed choice about whether toproceed with the services offered by the psychologist.

The psychologist may make a judgment
about what information a specific client/patient
s likely to find relevant in making this decision.
Accordingly, it is appropriate to tailor the information to
the client/patient’s particular needs and ability to understand.
The psychologist should answer all client/patient questions
relevant to the services being offered and their potential
effect on him or her.

Informed consent forms and notices may facilitate
this process and the psychologist may choose to use
them. Documentation that the client/patient was provided
with information about the services and agreed to receive
the services is essential.

In addition to their own professional judgment,
psychologists must abide by the APA Ethics Code (APA,
2002) in obtaining informed consent. Psychologists are
also advised to adhere to certain principles from case
law, as described below.

The principle of informed consent rests upon
the assumption that the client/patient has the ability
to make a decision about whether or not to accept the
psychologist’s services. That is, the client/patient must
be cognitively competent and not mandated to accept the
services. Other principles, established in the APA Code
(Sections 3.10 (b) and 3.10 (c)), apply when the client/
patient does not have the ability to make this decision.

1- APA Ethical Principles and Code of Conduct:

Psychologists should be familiar with the sections
of the APA Ethical Principles and Code of Conduct
governing informed consent.

Standard 3.10 establishes standards for informed
consent in all the psychologist’s professional activities.
It requires that informed consent be obtained using
language that is reasonably understandable. Further, the
psychologist follows specific procedures in situations
where the client/patient is legally incapable of giving
consent or where services are mandatory. It also requires
that informed consent be documented in writing, though
the consent itself may be oral.

Standard 8.02 governs informed consent to research. It
establishes eight types of information that must be given
to all psychologists’ research subjects and an additional
five types when the subjects will undergo an experimental
treatment.

Standard 9.03 governs informed consent to
assessments. The standard requires an adequate
explanation of the nature and purpose of the assessment,
fees, third party involvement and limits of confidentiality.
Client/patients must be given an opportunity to ask
questions and receive answers. Informed consent should
be obtained from the client/patient regarding the use of
an interpreter and confidentiality must be assured.
Standard 10.01 governs informed consent to
therapy. It establishes that the following information
must be provided “as early as is feasible:” the nature
and anticipated course of therapy, fees, involvement of
third parties, and limits of confidentiality It establishes
additional standards for treatment provided by trainees
and for treatment “for which generally recognized
techniques and procedures have not been established.”

Case Law: Court decisions have established a legal consensus
about additional aspects of informed consent. This legal
consensus, has, in turn, influenced our professional
ethics. Psychologists may be guided by these additional
principles in their efforts to achieve the highest level of
ethical practice and for purposes of risk management.

• Types of information to be provided:

The client/patient should be aware of risks and benefits of,
and alternatives to, the services being offered. As
noted above, the psychologist may use professional
judgment in determining the pertinent risks, benefits
and alternatives to present to client/patients. For
example, information the client/patient already knows
does not need to be presented. On the other hand,
information that he or she may not know and that
appears reasonably likely to be something he or she
would consider in making his or her decision, should
be provided. Sometimes, a psychologist may need to
disclose the fact that there are other schools of thought
about how to treat a particular condition.
In addition, a psychologist must disclose personal
interests, including research and economic interests,
unrelated to the client/patient’s health that would
be reasonably likely to affect the psychologist’s
judgment.

• Consent should be fully voluntary:

Psychologists should avoid coercive pressure on the
client/patient to accept services. For example,
conditioning a recommendation for a leave of absence
from work on the acceptance of psychotherapy might
pressure the client/patient into accepting psychotherapy.
On the other hand, telling the client/patient that
psychotherapy may make it more likely that he or she
will be able to return to work is appropriate, if that is
the psychologist’s assessment.

Reference:
American Psychological Association. (2002). Ethical
principles and code of conduct. American Psychologist,
57, 1060-1073.
Bram Fridhandler, Ph.D., and the 2004
Expertise Series Task Force.
Board of Psychology Update June 2006
www.fridhand.net

2- Consumer Right to Informed Consent:

You have the right to know all risks, benefits and treatment alternatives before consenting to any treatment. You have the right to refuse treatment by withholding your consent.

WHAT IS INFORMED CONSENT?

Informed consent is more than merely your agreement to a particular treatment or procedure. Informed consent is your agreement to a proposed course of treatment based on receiving clear, understandable information about the treatment’s potential benefits and risks.1 You must also be informed about all treatments available for your health condition, and the risks of receiving no treatment.

WHY IS INFORMED CONSENT IMPORTANT TO ME?

The decision to accept (consent to) or reject (refuse to consent to) a treatment, therapy or medication is ultimately yours to make — not your doctor’s or other health care provider’s.

You must take an active role in order to receive high quality health care. The first step is having the appropriate information about your medical condition. Once you know about all the risks, benefits and treatment alternatives, you may decide the risks are too great or the benefits too few to justify undergoing the treatment. With this kind of information, you may choose to refuse the treatment by withholding your consent.

IS MY INFORMED CONSENT ALWAYS REQUIRED FOR ALL MEDICAL TESTS OR PROCEDURES?

Most of the time, yes. While your informed consent is usually required, there are two exceptions where your doctor does not need to have your informed consent before beginning treatment.

Simple and Common Exception: The first occurs when a “simple and common” procedure, such as a typical blood screening is performed. When risks from such procedures are commonly understood to be remote, your doctor need not discuss the risks, benefits or alternatives to the procedure with you. You must still agree to the procedure, however, before it is done.

If you are incapable of giving informed consent, the law presumes that you would consent to life-saving treatment, and the physician is authorized by law to provide it.

Emergency Exception:The second situation is in a life-threatening emergency. This is known as the Emergency Exception.

An “emergency” is defined for purposes of this exception as a situation requiring immediate treatment of a medical condition that would otherwise lead to serious disability or death.

There are two specific limitations on the Emergency Exception: If the patient is unable to give consent, the physician must make a reasonable effort to locate a family member or legally authorized representative who can give informed consent on behalf of the patient before treatment.

No treatment can be given if the doctor knows or has reason to know that the patient has previously executed a Durable Power of Attorney for Health Care or a Declaration under the Natural Death Act that expressly refuses life saving treatment.

IS THE DOCTOR REQUIRED TO TAKE THE TIME TO TALK TO ME ABOUT INFORMED CONSENT?

Yes. Your doctor has a duty to fully inform you about all of the risks and benefits of suggested treatments in terms you can understand.

HOW DO I GIVE THE DOCTOR INFORMED CONSENT?

Informally: Often, your informed consent comes informally in the course of discussion with your doctor during a routine office visit or similar situation.

Formally: Informed consent can also be given formally, by signing a document that states your doctor has fully discussed a treatment or procedure with you and that you have acknowledged and agreed to the risks. In a formal consent, you are usually asked to sign a form titled “Informed Consent to Treatment,” or something similar. This is especially true in situations involving hospitalization, surgery or invasive testing.

California law requires that your consent be obtained in writing for several specific procedures and treatments for specific types of conditions, including:

sterilizations,
hysterectomy,
breast cancer,
prostate cancer,
gynecological cancers,
psychosurgery, and
electroconvulsive therapy.

If a physician has a personal interest in treating you, either financial or research-related, then he or she must disclose those interests to you. Because any such interest might influence your physician’s judgment about treatment decisions, he or she is required to tell you about that interest before a procedure is performed and obtain your informed consent when you participate in a medical research study.

Another circumstance in which specific disclosures and obligation of physicians to you are mandated by law is the area of human experimentation and research.15 Federal law has established extensive regulations governing federally funded biomedical and behavioral research.

WHEN SHOULD MY DOCTOR DISCUSS THE RISKS AND BENEFITS OF A PROPOSED COURSE OF TREATMENT AND ANY TREATMENT ALTERNATIVES WITH ME?

Any discussion of a proposed course of treatment must take place BEFORE the treatment is given.

You are sometimes asked, as a routine part of filling out medical history and personal information forms, to sign an informed consent document. This sometimes happens before you see the doctor or care provider and before you have had the treatment and/or any alternatives explained and before there has been any chance to ask any questions.

Never sign any such document until AFTER there has been a full opportunity to have all of your questions answered and concerns discussed.

WHAT KINDS OF QUESTIONS SHOULD I ASK SO I CAN GIVE “INFORMED CONSENT?”

The key here is to ask for the information you need to decide whether or not you want to agree to treatment. Below are some examples of questions that will help you. This is not intended to be a complete list, as appropriate questions will differ depending on the medical condition or treatment being considered. These questions will help begin a discussion with your physician or care provider in order to make a truly “informed” decision about your body and health care:

What is the condition, disease, or problem called?
How do you recommend treating it?
What are the risks of this type of treatment?
What are the benefits?
What is the complication (morbidity) rate for this treatment?
What is the mortality (death) rate for patients in my condition using this treatment?
What other treatments are available? Why are those not recommended?
What will happen if I don’t do anything?
How many patients have you cared for with this problem? How many patients have you performed this surgery or this test on?
What is your success rate in treating this problem?
If I undergo this treatment, will it prevent me from using an alternative treatment if needed?
Are you board certified in the specialty that treats this disease or condition?
What can I expect if I undergo this treatment?
Will I be able to work and/or care for myself?
Will my activities be restricted?
How much pain or discomfort will I be in?
Will this treatment cause other problems?
What kind of side effects should I expect?
What should I do if I experience side effects?
Will you personally perform the surgery, test, or procedure?18
Is anesthesia necessary?
Who will be the anesthesiologist?
What can I expect if I don’t undergo this treatment?
What are the alternatives to this treatment?
What are the potential risks, complications or side affects associated with the alternative treatment?

Doctors are not required by law to disclose their own record of complications or outcomes with you to obtain informed consent. Therefore, you should always ask questions to determine the competency of your doctor in performing a particular procedure or caring for a particular disease or condition. You should always investigate the doctor with the appropriate licensing or regulatory board before engaging medical services. (see list at the end of this chapter)

IS THE DOCTOR LIMITED BY MY INFORMED CONSENT?

Yes. The doctor is limited by the scope of your informed consent. This means that the doctor cannot perform any procedure or treatment other than those discussed with you to which you agree.

This is also true under the Emergency Exception previously discussed. Your doctor may only do what is necessary to stabilize you and eliminate the emergency situation. If a procedure can safely be postponed until informed consent is obtained, then it must be postponed. If the doctor does not postpone the procedure when it is safe to do so, you may sue him for battery if you would have refused to give consent.

WHAT ARE MY RIGHTS IF THE DOCTOR DOESN’T GET MY CONSENT, OR PERFORMS SERVICES BEYOND THE SCOPE OF MY INFORMED CONSENT?

You may be able to sue the doctor for battery and recover damages for any injury to you caused by the doctor’s failure to get your informed consent, or by the doctor’s performance of procedures or treatments beyond those to which you agreed.

If your physician fails to get proper informed consent, this is considered negligence, and may be the basis for a medical malpractice lawsuit. If you think that this has happened to you, immediately consult an attorney who specializes in medical malpractice. The statute of limitations (the time within which the law allows lawsuits to be filed) for medical malpractice is one year from the time you knew or should have known that malpractice had been committed.

http://www.calpatientguide.org/ii.html

3- HMO Consumer Complaint Hotline:

In the interest of consumer protection,
the Board of Psychology enthusiastically
supports the Consumer Complaint
Hotline of the Department of
Corporations.

The Board encourages all
licensees to post the hotline number in
their offices so that HMO patients are
aware of the recourse they may have in
dealing with their managed care
insurance carrier.

The hotline number is: 1-800-400-0815

A formal complaint may be filed with the
Department of Corporations after a
patient has attempted all available
remedies within the HMO grievance
system.

HMO personnel who are licensed psychologists
must adhere to all ethical principles applicable to the
profession, as well as all laws relating to
psychology licensure.

There are four elements of a malpractice suit. All four must be believed to have been met for an attorney to prevail in a court of law. In some cases, the difficulties of proving a suit, or defending against a complaint, are reflected in out-of-court settlements.

A civil suit for malpractice is defined as a lawsuit between two citizens where the issue is whether the psychologist has breached the standard of care (Black’s Law Dictionary, 1996). (Standard of care will be defined below)

Duty of Care: A duty of care arises when there has been an agreement between the psychologist and the client that they will work together in a therapeutic relationship. In most cases, a therapist-patient relationship should be established within the first few sessions because a patient will develop an assumption he has begun treatment. It is important to be completely clear from the start under what circumstances the patient is being seen. Is it merely a two-time evaluation for longer-term therapy? Was something said to the patient that indicated long-term therapy had begun? Or is the relationship based upon a brief 6-week behavior model of treatment? If the parties have not decided if they wish to work together by about the third session, the civil court may decide for them that a “duty” of care has been established. The exchange of money alone does not establish a duty; however, if there is nothing else for the court to consider, it may look at financial matters in an attempt to establish responsibility.

Standard of Care: The standard of care refers to the level of proficiency against which any other psychologist’s work will be measured or compared – what any other trained psychologist with reasonable experience would do, or the minimum below which a psychologist must not fall (Stromberg, et al, 1988; Caudill & Pope, 1994). Generally, the standard of care is defined by state statute (e.g., Penal Code 11166, child abuse report law) and the current ethics code of the profession. Another factor that establishes the standard of care in a profession is something called “case law.” Case law is a “collection of reported cases that form the body of jurisprudence within a given jurisdiction” (Black’s Law Dictionary, 1996, p. 84). This means that when judges adjudicate a case in an appeals court, it becomes precedent, and must be followed thereafter. Case law is just as powerful as statute, and it must be followed just as closely as law that has progressed through the legislative process.

Caudill & Pope (1995) define standard of care as “the minimum standard below which a practitioner cannot fall. It is based on the average competent professional, not the best or the brightest” (p. 564). These authors go on to explain that competent treatment can lead to unsuccessful results without the treatment having been negligent. “Errors in judgment are not necessarily malpractice…instead if the requisite degree of skill and care is used, a judgment call that proves wrong is not actionable” (p. 564).

Demonstrable Harm: Can harm be shown to have occurred to the “victim”? Was anyone hurt or harmed? If so, what are the damages? The idea is to return a harmed individual to the condition in which she existed prior to the harm. This can be done in only one way – in a civil suit: In many cases of demonstrable harm with psychologist defendants, the damage claimed is psychological in nature. Therefore, it is much harder to prove and harder to approximate the financial award to the victim.

Proximate Cause: Proving that the psychologist’s wrongful conduct caused the damage and that it was the direct or proximate cause of the harm of the plaintiff’s injury is probably the most difficult element to establish. However, attorneys will try to impose liability upon the psychologist for their acts that “caused” the damage to the client. The question is, Would the client have been damaged if the psychologist had done anything differently? When injury is alleged to have occurred, the client must still prove that the alleged injury is caused by the psychologist’s breach of the standard of care. In 1991, the California Supreme Court adopted a definition of proximate cause easily understandable to lay people – the “substantial factor” element. Was the therapist’s action a “substantial factor” in causing the patient’s injury? (Caudill & Pope, 1995).
JENNY VIGNETTE

Jenny has been Dr. Brown’s client for five months. She calls Dr. Brown saying she is suicidal and wants to “do herself in.” Dr. Brown tells Jenny to “perk up” and to stop being so down. He tells her to go to the local bar and have a few drinks, and to “get social and meet a new lover” so that she can have a good time and “be normal.”

Later, Jenny feels so bad she takes the entire bottle of her antidepressants along with a bottle of vodka. When she calls Dr. Brown the next day feeling suicidal and depressed, he tells her, “Look Jenny, you aren’t my only client! I am too busy to spend all this time on the phone with you. I will see you at our next appointment. Now just relax.”

Jenny takes the rest of her medication and winds up in the hospital. Her family consults an attorney who is considering filing suit based upon the four elements of a malpractice suit.

NOTE: See Section A – Elements of Malpractice for review of answer material below:

Question 4

Since Jenny and Dr. Brown had been seeing each other in a therapeutic environment, the first element of a malpractice suit has been met because there was:
A Duty of Care established
A Breach of the Standard of Care
Demonstrable Harm evident
Proximate Cause shown

Question 5

Dr. Brown was probably not adhering to the current ethics code for psychologists, the statutes of his state, or the recent case law. Therefore, he probably:
Did not create a Duty of Care
Breached the Standard of Care
Demonstrated Demonstrable Harm
Provided Proximate Cause

Question 6

Since Jenny wound up in the hospital after talking with Dr. Brown, this probably is evidence of:
Duty of Care
Breach of Standard of Care
Demonstrable Harm
Proximate Cause

Question 7

If Jenny would have been fine if her psychologist had treated her in a more appropriate manner, this is proof of:
Duty of Care
Breach of Standard of Care
Demonstrable Harm
Proximate Cause

Questions 4-7 in order: 4 – a duty of care is established when a client-therapist relationship is developed or created. When Dr. Brown failed to follow the ethics code of his profession, he was 5 – breaching the standard of care of his profession. The answer to question 6 is demonstrable harm. Since his patient wound up in the hospital, harm could be demonstrated. If it could be proven (which is very difficult to do) that the patient would not have suffered damages (or they would not have been as serious) had Dr. Brown done anything differently, then 7 – proximate cause can be claimed by the attorney of the patient.

METHODS OF PREVENTING MALPRACTICE

Baerger (2001) notes, “the fear of being sued may adversely impact clinicians more than the lawsuits themselves” (p. 359). Estimates of the chance of being sued for malpractice range from 1% to 12%, depending upon the accusation (Baerger, 2001). Experts in legal and ethical matters agree that the methods of minimizing the risk of a malpractice suit (Baerger, 2001; Caudill & Pope, 1995; Welfel, 2002; Bongar, Maris, Berman & Litman, 1998; Clayton & Bongar, 1994; Cranston et al., 1988) are:

1. Professional consultation (to be discussed later in this course)
2. Personal therapy
3. Membership in professional associations
4. Continuing education
5. Familiarity with current treatment methods and monthly journals
6. Knowledge of the current standard of care
7. Proper referrals (e.g., hospitalization, medication, adjunctive treatment)
8. Proper documentation of patient care

http://www.continuingedcourses.net/active/courses/course028.php?PHPSESSID=169b92182fe1584725