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Discipline and Discharge Grievances

From: Steward Update
 
The First Meeting
A steward’s very first meeting with management over cases involving discipline or discharge is often the most important:  it sets the tone for the rest of the grievance procedure and possible arbitration, and deserves special care.  A flawed first meeting can lead to the union deciding not to proceed to arbitration, or even worse – taking it to arbitration and losing.
 
Let’s look at the critical steps, keeping in mind that because the employer usually has the burden of proof in such cases, your goal in the first meeting is to find out what “proofs” it has.  So, you ask the employer.
 
Have you completed your investigation and are ready to present your case?
If management responds by saying, “No, we have a few follow-up questions,” the worker should not answer quickly, and let you have the chance to inject clarifying comments and questions.
 
Can I have the whole story?  
Don’t leave anything out. When the company finishes, ask if that is all, then thank them. The goal is to pin them down. Don’t let the employer have days or weeks to build a more elaborate case.
 
What specific rule was broken?
If the rule showed up after the contract was signed, did the union receive notice?  If so, ask “How was notice to the union given?” Is the rule reasonably related to the efficient and safe operation of the business?  If not, be ready to challenge it.  Is it overly broad and vague?  Ask for it to be explained.
 
How was the member told about this rule or warned about the consequences of the misconduct?
Take the example of insubordination.  The rule is “refusing to work as directed.”  Well, supervisors give direction nonstop.  Say a few workers linger.  The supervisor says, “okay, back to work.”  A couple more minutes of lingering and the supervisor says, “You three are fired.”  Why?  “Insubordination.”  The union’s question should be, “was the member warned that refusal to comply would result in immediate termination?”
 
How many times has this rule been broken over the last five years?  By who?  What was the penalty?  May I have a copy of the records of each of these incidents?
Let’s say you’ve already asked around and can’t find anyone remembering the rule ever being enforced.  Resist the temptation to shoot back, “No one has ever been disciplined over that!”
 
Why?  Because when you make a statement, the burden of proof is on you; when you ask the employer, the responsibility is with the employer.
 
If it turns out there’s been lax enforcement, make notes for your argument down the road.
 
Alternatively, management may not have reviewed the history of the enforcement and you are making a note to yourself to later argue that “the company did not do a fair and complete investigation.”  This question lays the groundwork for the future argument.
 
How does this compare to the discipline in other cases?  Why is it more severe?
A penalty must fit the crime.  The most common reason a discharge is overturned is because management overreacted and discharged for something that only rated a one-day suspension.
 
Who are the witnesses?  May I interview them, and see any written statements?
Let’s say the discipline all started with a customer complaint.  The problem is that management can spin the complaint and you cannot interview.  Interview is the word of choice, but really you are looking to quiz the customer to find out how solid the company case is.
 
Sometimes it all starts with a co-worker’s complaint.  Management can make the claim these statements are privileged or confidential or the person needs protection.  Ask for the statements.  If refused, consider an unfair labor practice charge.
 
Object to the lack of full disclosure.  If the grievance goes to arbitration you will argue the witnesses should not be allowed to testify if they weren’t questioned during the grievance procedure.
 
May I review the member’s entire personnel file?
Be careful here:  You may argue that this is a great member with 20 years’ service, and then find out there is a file full of issues.
 
You’re not through with questions yet: you’ve got a few for the grievant, and for yourself.
After asking for a break to caucus, ask the grievant if the facts presented are accurate.  Decide if the case can wait until requested documents are in hand, or should you move ahead without them.  Decide if you should consult with the union before proceeding.
 
When you present the union case, be persuasive, and civil.  You’ve done your best to get all the information possible and to set the stage for possible next steps.