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Stewards' Corner: June 1, 2005
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Stewards' Corner: June 1, 2005
Summary of Rules that the Steward
Should Follow
While Handling the Grievance
Investigation
Procedures and
Preparation for Discipline and Discharge Cases
Suggestions for Presenting the Grievance
Employers often assert that the only role of a steward at an investigatory interview is to observe the discussion, in other words to act as a silent witness. The Supreme Court, however, clearly acknowledged a steward's right to assist and counsel workers during the interview. Decided cases establish the following procedures:
1. When the steward arrives, the supervisor must inform the steward of the subject matter of the interview, i.e. the types of misconduct for which discipline is being considered (theft, tardiness, drugs, etc.)
2. The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.
3. The steward must be allowed to speak during the interview. However, the steward does not have the right to bargain over the purpose of the interview.
4. The steward can request that the supervisor clarify a question so that the worker can understand what is being asked.
5. After a question is asked, the steward can give advice on how to answer, but the employee must answer the question. The steward cannot answer the question for the employee.
6. When the questioning ends, the steward can provide additional information to the supervisor.
7. It must be emphasized that if the Weingarten rules are complied with, stewards have no right to tell workers not to answer questions, or to give false answers.
8. Workers can be disciplined if they refuse to answer questions after being ordered to do so.
Investigations for Pre-Disciplinary Meetings
Many times stewards are made aware of events that probably will give rise to disciplinary actions even before they have received formal notice that a pre-disciplinary meeting will be conducted.
The steward should be contacting, interviewing, and taking statements from witnesses and the accused. Statements and interviews that are signed by the author with dates and times will set the fact in your mind more solidly than trying to recall the event days or weeks after it has happened.
In addition to taking statements and interviewing witnesses, the steward should tour the physical location of the event if the location is relevant. Take measurements, re-enact events, and make a map of the area if it is necessary to explain shat lead to the dispute.
Prior to the pre-disciplinary meeting, management should notify the employee of the reasons for the discipline. this notice should cue you into what work rules, policies, and procedures you should review and what other type of information would be relevant. You will conduct your investigation for a pre-disciplinary meeting in much the same way you would for a disciplinary grievance already filed.
Pointers: Disciplinary Meetings
1. The employee and union should receive at least 24 hours notice of the hearing. Use this time to identify the alleged rule infraction(s) and the circumstances surrounding them.
2. Ask questions about the evidence and what each management witness knows. Try to obtain a complete understanding of the case from the employee's -- as well as management's -- perspective.
3. Often employees make statements at the pre-disciplinary meeting that they cannot support later or they may regret, because pre-discipline statements may later be used in arbitration. Counsel the employee that what is said in the hearing becomes part of the record.
4. Be prepared to serve as a witness if the case goes to arbitration.
5. Be prepared to help fearful or inarticulate employees to explain what happened. Raise extenuating factors if you believe it will be helpful.
This checklist summarizes the essential elements of a proper investigation and will aid you in making sure you do not miss something important.
A) What is the specific complaint or charge?
B) Does the grievance state the issue sufficiently?
C) What are the relevant facts? (Be sure to verify each person's story)
D) Have the parties complied with the previous steps in the grievance procedure?
E) Were the grievance time limits observed?
F) What were the contentions of the parties during the previous steps?
G) What are the name, sex, age, race, and years of service of the grievant? The sex, age, or race of the grievant may indicate the possibility that discrimination will be an issue.
H) What are the job classification, duties, and rate of pay of the grievant?
I) What is the grievant's seniority?
J) What is the grievant's past employment record?
K) What prior statements have been made by any representative of the parties, supervisors, or the grievant?
L) Was there any correspondence between the parties? If so, obtain it.
M) Are there any pertinent work rules or employer procedures? If so, obtain copies and evidence that the grievant was aware of the rules or procedures.
N) Are there any excuses or mitigating circumstances?
O) Have the parties interpreted relevant provisions of the collective bargaining agreement before? If so, how?
P) Is the matter grievable under the collective bargaining agreement?
Q) Can it be shown that management's action was permitted under the contract and was reasonable and fair under the circumstances?
R) If relevant provisions of the contract are ambiguous or uncertain, is there a custom, habit, or past practice that will help construe them?
S) Is there bargaining history that will help construe the contract?
T) What is the relevant past practice, if any? Is it a practice on which the parties had a right to rely? Where were the underlying circumstances, frequency, consistency, and duration of the practice?
U) Does any federal or state statute bear on the issue?
V) If two provisions of the contract conflict, which should prevail?
W) Are medical examinations, hospital records, or reports of doctors needed? If so, obtain them.
X) Will documents such as correspondence, photographs, maps, blueprints, drawings, charts, seniority lists, or personnel records be of help?
Y) Are there some other arbitration awards on the same or similar issues that may be of help?
Z) If there is a written statement from the grievant and all relevant witnesses in the file of the steward? If not, obtain the written statements or take notes on each witness in the case.
*Adapted from Grenig, "A Supervisor's Guide to Handling Employee Grievances" in Prentice Hall Industrial Relations Guide, para 42, 112 at page 42, 145 (1986). Revised 1998
Summary of Rules that the Steward
Should Follow
While Handling the Grievance
1. Do not waste time arguing over personalities. Stay away from name-calling. It is not who is right, it is what is right that counts.
2. Stick to the grievance machinery. It is part of your contract. Do not go outside of the established procedure to settle grievances. This weakens both the contract and the union, and jeopardizes your position with the supervisor and the union members.
3. Do not get sidetracked in your discussions. Stick to the point. Let the supervisor talk, but stick to your case and bring him/her back in a tactful but firm manner.
4. Approach the supervisor as a human being. If you antagonize him/her, he/she may not cooperate in the resolution of the issue at the pre-filing step.
5. Do not be put on the defensive. If the supervisor tries to dominate you, come back with facts. A timid or defensive attitude is a confession of weakness.
6. Bluffing does not win grievances. It will pay off more in the long run to be honest and truthful. With integrity comes respect.
7. Be a good listener. listen with patient interest even when you think the grievant is wrong. Do no reject anyone's statement until it has been examined.
8. Be calm! Keep cool! Few people can think straight when they are angry.
9. If you disagree with the supervisor, do so with dignity and respect. Remember that you and the supervisor have to work together and settle other issues in the future. You seek agreement, not conquest. If he/she backs him/herself into a corner, give him/her a way out. You might need a similar favor at some later time.
10. If the supervisor stalls, push for an answer. If you cannot get a decision, try to set a definite time limit for the answer (your contract might already provide for this).
11. Determine the way you will present the case before you see the supervisor. If you take the grievant with you, do not disagree in front of the supervisor. If you hit a snag, ask to caucus, you have the right to do this. Then straighten out the matter and resume the discussion with management.
12. Be objective. Keep an open mind. A prejudiced view can distort the truth and lose the case for you.
13. If you have won your case, stop talking. Do not rub it in to management.
14. Do not horse-trade grievances. That is, do not give up one grievance in order to get a favorable decision on another. Insist on settling each grievance on its merits.
15. Appeal to management's self-interest. You are appealing to common sense reasoning, not asking for favors.
16. Do not take up grievances that do not exist and do not be afraid to tell the worker that they do not have a grievance; but if a worker demands that a grievance is filed, a grievance must be filed.
17. Remember that management has rights, too. Both the union and management must live up to the terms of the agreement.
18. Keep written records of grievances.
19. Do not be afraid to admit if you are wrong. Humility is not a sign of weakness; rather it is a sign of a good leader.
20. If you cannot settle the grievance, take the case to the next step in the grievance procedure right away. Let the supervisor and the grievant know that you are going to do this.
Investigation
Procedures and
Preparation for Discipline and
Discharge Cases
Credibility Tests
Discipline and discharge cases often deal with questions of credibility. The question that faces the arbitrator is whom to believe. In order to make certain your case is well prepared, you should test your grievant witness vigorously to make certain exactly what happened. The grievant sometimes “ sees” the situation differently than it actually happened. A grievant is emotionally involved and therefore sometimes misjudges the facts. Occasionally there are lies to cover up mistakes. To avoid embarrassment at the hearing, you should take the following steps:
Remember, if you set up a more vigorous test of your grievant’s story than the employer and it is passed, there is a better chance of being believed by the arbitrator.
5. Check personnel records, or medical records if they are involved. Don’t take the grievant’s word.
6. Talk to the foreman or the company witnesses beforehand. Check out their story – obviously, that might be in error also.
Record Tests
Often employers’ discipline or discharge actions are based on records of employees. Make certain the records are accurate. Look them up. Find out who made the entries and, if possible, interview those who made the entries. Often the person who did it tells a different story or has long departed.
Consistency
Tests
Compare the grievant’s actions with others. Make certain he/she did not do things any different or worse than others who were not disciplined at all, or were less severely disciplined. In this respect, the employer may have acted in a “discriminatory” or inconsistent manner and thus you stand a better chance of winning your case.
Check the
Contract, Rules, etc.
Often the grievant may have been wrong, but should not be disciplined because there was no violation of a rule or the agreement. In this regard, you should make certain that even if there were a rule violation, it must have been a reasonable rule and was promulgated. While ignorance of a rule per se is no excuse, ignorance because of bad or improper communication may be defensible. Also, if the rules are unreasonable or not related to the work, safety of others, or employer image, the grievant may not be held culpable.
Study the Grievance
Sometimes the reason for the disciplinary action or discharge was predicated on a specific act. If the employer later tries to base its action on other, more broad charges, they may be prohibited because of the initial charge. Moreover, the rule of reason based on time should be considered. In other words, past charges that are “stale” may not be used against the grievant. (Be careful on this point. For example, if you want to introduce evidence to show the grievant has been a good worker for five years, you may open Pandora’s box to allow the management to introduce evidence that shows the bad aspects of the grievant’s work history.)
Look for Motive
Where fights or insubordination, profanity, etc., are involved, check to see if the grievant was provoked or trying to defend him/herself. Being an initiator of an action vis-à-vis defending oneself is different.
Look also to supervisory motive. If you can show that a supervisor had reason to “do in” the grievant, that should be brought out.
Suggestions for Presenting the Grievance
The Problem of
Dealing with Human Beings
1. No two people are approachable in the same manner; this applies to union members and employer officials alike.
2. The steward is after results that will benefit the worker and the group as a whole; he/she must submerge personal likes, dislikes, fears, and prejudices.
Some Points to Remember when Presenting the Case
1.
Prepare the case beforehand!
Have your facts down in writing
Have notes organized to guide your presentation
Anticipate the employer’s argument and have answers ready
Make an effort to talk to the worker or workers alone before you meet the foreman or supervisor
Talk the case over, if necessary, with other stewards, your committeeman, or others who might help you
2. Avoid arguments among union people in the presence of management. If you have a difference of opinion during a meeting, take a recess and iron the problem out in private; present a united front to the employer!
3. Keep to the point. Avoid getting led off side issues by the supervision.
4. Get the main point of the employer’s argument.
Try to narrow the area of difference between union and management.
Try to pin the employer down on why he or she did what they did, or failed to do what they should have done.
5. Avoid getting excited.
6.
Treat employer representatives as you would like to be treated.
Let any break in good relations come first from the other side.
Remember that the representative to whom you are speaking is not always personally responsible for the complaint or grievance; therefore, you may get less cooperation from representatives by trying to place the blame on their shoulders.
7. Avoid unnecessary delays.
If the employer asks for more time, try to determine whether it is an attempt to stall or is based on a sincere desire for more facts needed to settle the case.
Remember, the more time that passes, the “cooler” the grievance becomes, and the less support you will get from the worker or workers involved.
The longer the complaint or grievance is tied up by the employer, the more difficult it will be for the union to gather and remember the facts and merits of the case.
The more grievances that are piled up in the procedure, the more likely that management will try to “horsetrade” settlement of a few grievances for dropping of others.
If the grievances are made a part of contract negotiations, management may attempt to trade off other contract demands for settlement of grievances that should have been taken care of long before.
8. Settle the grievances at the lowest possible step of the grievance machinery – but make sure they are properly settled.
This saves time.
It helps build better relationships in the department.
Stewards will feel like the vital part of the union that they are.
Don’t pass the buck – if you can settle the grievance in the first step, do so.
9. Avoid bluffing – it is only a matter of time until your bluff is called; it is in the long run wiser to develop a reputation for honesty.
10.
Maintain your position on a grievance until proven wrong.
11.
Enforce the contract!
If
the Union has not complained about similar violations of the contract or
past practices before, why should the employer give in now?
The
best contract in the world has no value if the workers and stewards do not
require the employer to live up to its terms.
Sometimes public employees can be involved in situations where they can be criminally prosecuted, as well as punished by their employer for their actions. For example, in cases involving theft, assault, and patient or inmate abuse, a person can be disciplined by their employer and be punished through the criminal court system.
The two systems, criminal court and administrative action by the employer, are distinct and separate. They have different procedures and have different standards of evidence.
This sheet is intended to give guidance regarding situations that happen at work that could potentially carry two penalties -- on from the employer and one from the criminal court system. However, it should be remembered that WSEU's expertise lies in protecting employee rights. If a person is involved in an action with a potential criminal penalty, he/she should contact a WSEU Council 24 staff representative.
Police Investigations
Any time the police are involved, there is a potential for criminal action. Because stewards are not responsible, nor trained in representation for criminal activity, employees are urged to contact a private lawyer for representation when there is police involvement. The investigation should be postponed until counsel is available.
In any case, except for cases involved the Garrity Warning explained below, employees do not have to give up their constitutional rights to be free of self-incrimination. Employees do not have to give details about an incident that would incriminate them with respect to criminal prosecution.
It should be noted that if investigations conducte4d by the police are used in the decision to discipline employees, a copy of the investigation should be requested by the steward. If an employee has requested that a steward be present at a meeting with the police but is denied one, and if the information from the meeting is used to support discipline, then this denial should be raised as a procedural deficit in the discipline.
Garrity Warnings
If the employer states that what is said in a meeting will not lead to criminal charges, then the employee no longer has the right to silence. This is known as the "Garrity Warning." An employee or the steward should insist that the Garrity Warning be provided in writing so that the employee has documentation that it was provided.
How do These Rules Affect Witnesses?
If a person is a witness to an event, a person is required to state truthfully what she/he saw. A steward is no exception. However, the steward has no duty to reveal to the employer facts learned during the course of an investigation. There is a distinction between being a witness to an event and finding out facts as a result of being a steward. If a steward is a witness to an event, she/he must state truthfully what she/he was if asked or required by the employer.
An important part of a steward's investigation after a member has been disciplined is what information the employer used to reach the decision to impose discipline. The Department of Employment Relations, or DER (now the Office of State Employment Relations, or OSER) Collective Bargaining Bulletin #41 (CBB #41) gives agencies direction on this issue.
History
DER, CBB #41 was issued on June 4, 1997, after lengthy negotiations between DER and WSEU in response to numerous unfair labor practices (ULPs) filed against the State of Wisconsin by AFSCME Council 24. The ULPs were filed because the state was refusing to give the union information they used when disciplining its members.
Highlights of DER CBB #41:
The union has the right to information used in deciding to discipline one of its members after the discipline has bee imposed.
The request for the information must be made in writing to the employer.
The employer has 20 workdays to provide the requested information.
The employer may redact or black out certain information if they can show a "legitimate and substantial interest of confidentiality and privacy may exist which requires that informants or witnesses, whether employees or the public, must be protected." Even in these limited cases the union will obtain unredacted information prior to arbitration.
The union may request discipline records of other employees, including supervisors, if they have reason to believe that the employee/supervisor may have committed the same or similar work rule violation but received a different penalty.
Collective Bargaining Bulletin #41
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