By Carolee Colter, Columinate & Heather Wright, Esq, WrightJones PLC

 

Columinate is recommending replacing the old Cooperative Model Grievance Procedure from 2009 with this new Workplace Conflict Policy.

Why do you recommend changing the policy now?

The old policy fit the needs of co-ops for many years. In the last year or two, however, there have been changes in labor law that have created some degree of legal risk for co-ops using the old policy. Basically, there are three concerns:

1. the use of confidentiality in the process, which is now basically illegal to mandate;
2. the ability of non-supervisors to overturn a decision of management, which allows individuals without legal accountability to the organization the ability to assume legal risk for the organization; and
3. the employer control over setting the procedure in the first place, which could potentially create a violation of the National Labor Relations Act.

What are the main changes in the new policy you’re recommending?

1. The old policy (or some versions of it) put the final decision for resolving the conflict in the hands of a committee of managers and non-managers, randomly selected from a qualified pool. The new policy puts the final decision in the hands of top management after consultation with others.
2. The old policy was quite formal in the later stages, requiring extensive documentation and detailed instructions. The new policy is shorter, simpler, and more informal, and the documentation is much less onerous.
3. The old policy restricted the types of conflicts eligible for the procedure. It required that conflicts fall into one of three categories. The new policy puts no restrictions on the type of conflict that an employee can bring up.
4. The old policy required everyone involved to sign a confidentiality agreement. The new policy puts no restrictions on what participants in the procedure can say to anyone. Moreover, employees can bring coworkers to meetings with management if desired.
5. A clear definition of retaliation.

What stays the same in the new policy?

1. An intake channel for the conflict that supports the employee in navigating the procedure.
2. A timeline for the steps of the procedure.
3. An intake form that guides the employee in asking for specific resolution steps
4. Evaluation of the process after each conflict resolution procedure has concluded.
5. A separate process for harassment and discrimination claims.
6. No involvement of the board of directors in individual conflicts.

What about co-ops with labor unions?
Co-ops with union contracts already have a grievance procedure in place for employees in the bargaining unit.  Our model is designed for non-union co-ops, but it may also be useful for non-bargaining unit employees in a unionized co-op.

How will employees feel about a procedure that puts the final decision in management’s hands?

We know that many co-op employees would like their complaints to be heard by the board, but we have seen so many problems when boards have attempted to be the adjudicators of staff grievances that we continue to recommend that boards stay out of individual conflicts. Most importantly, a board can’t hold its GM accountable if it creates the expectation in staff that it will reverse management decisions in any given conflict. Given that the buck for resolving a conflict must stop somewhere, and given that the GM is accountable to the board for any legal risks taken, we believe that the process must end with the general manager.

At the same time, we’ve noted that the old policy, which has been widely adopted among co-ops since its creation in 2009, has not resulted in any significant uptick in requests for conflict resolution. From employee surveys conducted by the Columinate HR team, we’ve concluded that most employees are reluctant to use the conflict resolution procedure already in place. We could summarize the reasons as:

• Even if there is no fear of retaliation in the form of an adverse action (termination, discipline, refusal to hire or promote) by management, employees still want to avoid awkwardness or discomfort with managers.
• The procedure was quite complicated and some were not sure their situation met the eligibility criteria to use the procedure.
• Their conflicts could be and often were worked out at the very early stages before they reached the point of needing to file a complaint.

Finally, we’d like to point out that the workplace conflict resolution policy should be only one of a number of channels for communication between employees and management.