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One of the main reasons workers join
a union is to gain
protection against unfair and unjust discipline that employers hand out.
Stewards must be ready to handle sorted variety of discipline cases, from
warnings to suspensions to terminations.
And, Stewards
must also be ready to deal with situations of harassment to different degrees of
abuse by some supervisors when a member is disciplined as well as dealing with members who sometimes seem to go out of
their way to get themselves into trouble.
- Was
the employee adequately warned of the consequences of his conduct?
The warning may be given orally or in printed form.
An exception may be made for certain conduct, such as insubordination,
coming to work drunk, drinking on the job, or stealing employer property, that
is so serious that the employee is expected to know it will be punishable.
Example: If
an employee is told to stop using vulgar language and told that if he continues
he will be disciplined, that may be adequate warning. However if a supervisor comes up to an employee and says, “I’m
tired of your swearing, cut it out”, and then the next day fires the employee
for swearing again, that may not be adequate warning.
- Was
the employer’s rule or order reasonably related to efficient and safe
operations?
Example: A
supervisor tries to implement a rule that all employees must wear uniforms with
creases ironed into them and tucked in to prevent the shirt from getting caught
in any machinery. An employee is fired for wearing their uniform neatly pressed
but without creases. Making a rule that tee
shirts must be tucked in so they won’t get caught in machinery may be
reasonable and safety-related, but demanding the shirt be creased isn’t
related to safety or efficiency.
- Did
management investigate before administering the discipline?
The investigation normally should be made before the
decision to discipline is made. Where
immediate action is required, however, the best course is to suspend the
employee pending investigation with the understanding that he will be restored
to his job and paid for time lost if he is found not guilty.
Example:
A
supervisor fires a worker for stealing and then demands evidence from the union that
the worker isn’t guilty. At the
protest hearing the supervisor admits he never conducted an initial
investigation of the incident, just took
another employee’s word. This
probably wouldn’t hold up. If the
union has facts to prove the employee’s innocence they should be presented to
the company, even though the supervisor failed to properly investigate the case.
- Was
the investigation fair and objective?
Example: If
an incident occurs does the company's agent interview everyone present or only
management employees who were present. If
the company refuses to interview non-management employees then the investigation
may not be fair and just.
- Did
the investigation produce substantial evidence or proof of guilt?
It is not required that the evidence be preponderant,
conclusive, or “beyond a reasonable doubt,” except where the alleged
misconduct is of such a criminal or reprehensible nature as to stigmatize the
employee and seriously impair his chances for future employment.
Example: Here
it is obvious that workers have less rights inside the workplace than they would
have in civil court, but still the company must have real evidence, not
assumptions.
Again, the company cannot try to make a worker prove his or her innocence,
without presenting proof of guilt.
- Were
the rules, orders, and penalties applied evenhandedly and without
discrimination?
If enforcement has been lax in the past, management cannot
suddenly reverse its course and begin to crack down without first warning
employees of its intent.
Example:
This
is the most common form of discrimination.
An employer decides to suspend Mary for taking too long at lunch, but
lets the employees who eat lunch with a supervisor take extra time every day.
This would not hold up. However,
if the employer tells everyone that starting on Monday employees will be
disciplined for taking too long at lunch and on Tuesday Mary comes back late and
everyone else has been on time, she may be disciplined.
- Was
the penalty reasonably related to the seriousness of the offense and the
past record?
If employee A’s past record is significantly better than
that of employee B, the employer properly may give employee A lighter punishment
than employee B for the same offense.
Example: The
classic example is two employees get in an argument and shove each other.
One has 25 years service with a clean record.
The other has 3 years service with lots of warnings and discipline.
Based upon the workers seniority and records, the employer may give the worker
with more years of service less punishment than the other worker.
Tips for Handling Discipline & Discharges
Here are some basic tips for stewards handling
discipline and discharge cases:
- Use
the “Seven tests” as an outline.
Did the employer meet the seven tests? Remember that just because an employer messes up on one
of the seven tests, doesn’t mean we automatically win, but showing that
they have a supervisor or manager who has mistaken their position of
responsibility as a position of authority and abused it helps a lot.
- Make
sure that an employee’s Weingarten rights aren’t or weren’t
violated during the employer’s investigation.
- Try
to stop the employer from suspending or firing a worker.
Try to get a cooling off period if necessary.
The case becomes harder once a worker is out the door, now we not
only have to fight about what happened but over back pay, etc.
- Ask
for all of the employer's notes and records they used to make a decision.
Get any notes or records a supervisor might keep, even
informal records. The union has a right to them. On the other hand the employer has no right to the notes
or records that the union makes when investigating a case.
- Do
a thorough investigation of the case.
DON’T take the employers word on anything.
- In
a grievance meeting make the employer prove their case first.
Make them present all the facts and don’t assume anything.
Don’t let a supervisor start the meeting by saying to the union, “OK
tell me why I shouldn’t fire Joe”. Make the supervisor justify firing Joe.
- There
are two parts to every discipline case. Did the employee violate a known rule and what should
the punishment be? Sometimes we
lose the first part but then we have to make sure the punishment fits the
offense.
- If
the employer refuses to back down from a written warning, and the case
doesn’t merit being put into written form make sure the employer receives from the union a
written statement disputing the facts and the level of discipline.
Have a rebuttal drafted by the employee and put into the record and
keep a copy showing what was submitted. It doesn't need to be written
elaborately just list the facts of the matter including dates and names of
the people involved.
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