What Do I Do If…?

Nearly everyone who brings you a grievance is sure that their problem is unique. It is, but only because it’s unique to them. It’s a good bet that something very much like it has happened before, and probably many times.

That’s why it’s a good idea to get acquainted with a few of the most common types of grievances.

ABSENTEEISM & TARDINESS

There has been a trend over the last few years toward instituting no-fault attendance programs. Such programs automatically assign points or demerits for absences or tardiness, with or without advance notice, regardless of the reason for the occurrence. While most arbitrators uphold these programs when unions challenge them, this does not mean that there cannot be exceptions – especially when the absence is beyond the worker’s control, such as in cases of sudden illness or a family tragedy.

Can management unilaterally begin a new absenteeism program? Most arbitrators say yes, although they also require employers to notify workers of the program’s implications and what will happen if the rules are violated. The union can insist that the program be discussed before it’s instituted, but it cannot stop the employer from establishing a reasonable set of rules covering absenteeism and tardiness.

WHAT CAN A STEWARD DO TO PROTECT WORKERS??

Make sure that management has documented its case.

Try to get help for the worker. If the worker has a drinking or drug problem, family troubles or a health problem, make sure that he gets the assistance needed to deal with the underlying issues before he gets fired on top of other obstacles he faces.

Make sure that all employees are treated the same when it comes to absenteeism or tardiness.

Sometimes workers are put in a situation where their absence is beyond their control, or they may not have been able to notify management for some reason. It may be a health problem, problems with their automobile, or something else.

There normally is a system for washing out old absences from the personnel record, and the steward must be sure that the employer is not raising old incidents that should no longer be considered. Check any time limits.

Make sure that the employer did a thorough investigation before disciplining the worker. Failure to do so is one of the reasons that arbitrators frequently cite when they reinstate discharged workers.

Check the Labor Agreement and the absenteeism policies to make sure management didn’t violate its own rules or the contract.

WORK PERFORMANCE

Work performance issues are one of the most common sources of labor management conflict. If a worker doesn’t carry out his duties in a diligent and careful manner, and negligence causes damage to employer property, arbitrators are inclined to uphold disciplinary actions, especially if they don’t involve discharge. Malicious or intentional misbehavior may result in a discharge being upheld, even for the first incident.

Did the employer notify the employee and apply progressive discipline?

Did the discipline imposed fit the seriousness of the problem? If a work performance problem is a minor one, the imposed penalty should be minor: the penalty should fit the “crime”.

How long has the problem existed? If management has put up with poor performance for many years, it must demonstrate that something has changed before it can invoke major disciplinary action. Management must show a stepped-up level of enforcement of standards for everyone as well as a serious attempt to work with the employee in question before invoking discipline.

The record shows that few employees are fired for poor work performance, generally because wide variations in ability or interest in doing a good job are tolerated by employers. Where workloads are clean and standards are consistently enforced, employees are more likely to be successfully disciplined. Counseling and retraining are far better methods for dealing with work performance problems.

Most unionists are unaware just how shockingly unscientific even the most sophisticated of appraisal systems really are. While there are some governmental guidelines on the hiring of new employees, there are no regulations on how performance appraisals must be handled.

Performance appraisal often goes on constantly, sometimes formalized and sometimes not, and it has a big effect on the workers on which it is used.

If you think that the appraisal method in use ought to be discussed, talk to your union officers and let them know about your concerns. The employee has a right to ask a steward to be present during disciplinary meetings, so make sure your co-workers know that.

Meet with management and go over the facts as you know them. Questions that should be answered include:

  • Was the employee in question counseled before action was taken?
  • Was the appraisal valid? Were the questions asked in the review form job-related?
  • Is there evidence of bias? If the manager or supervisor demonstrates prejudice of bias toward the employee, nail down the fact that this person is being treated differently from others you represent.

If incompetence is charged, it’s a difficult accusation for management to sustain – especially for employees who have been on the job for many years. You have to assess the performance of the aggrieved against that of others in the department before accepting management’s finding.

Remember that it violates federal law to discriminate against workers because of their union activities, or older workers simply because of their age – no matter what excuses are used, like “attitude” or “lack of cooperation” or something else too vague to document.

In handling work performance grievances – barring real evidence to the contrary – be sure you give the benefit of the doubt to workers who come to you with the complaint that their evaluation doesn’t reflect the real quality of their work.

INSUBORDINATION

Cases involving suspension or discharge for refusal to follow instructions – insubordination – can be especially difficult.

If the worker appears to have been singled out for special punishment for refusing to follow orders, your grounds for pursuing a grievance will be strengthened. If normal workplace practices have permitted similar behavior previously, call that to the attention of management. One superior may tolerate a greater degree of so-called insubordination than another. You’ll want to determine if the insubordination occurred during an unusually tense situation. Sometimes a specific event aggravates the relationship between worker and management; a deadline that is putting heavy pressure on the supervisor, for example, or a serious family problem affecting the worker.

Check your contract: does it protect an employee’s refusal to obey? For example, the contract may allow the worker to have a steward present during discussions about behavior, but the supervisor didn’t permit it in the case at hand.

Was guilt clearly established? Did the employer furnish witnesses or produce confirming evidence that the insubordination actually occurred? If multiple acts of insubordination are claimed, make sure that the entire work record is reviewed.

Was the employee set up to be insubordinate after the decision was made to discipline him? It is one thing to warn an employee of impending suspension or discharge, and quite another to provoke the employee into refusing to obey an order in front of a witness.

If the refusal was prompted by a belief that there was a risk of danger to the worker or someone else, then discipline may not be upheld in arbitration. However, if the employee knew about the risk ahead of time, then they had an obligation to report it to the proper person immediately.

Management must make orders clear and understandable. If, for example, an instruction was issued in a way it could not be properly heard, the discipline may have been unfair.

Orders should not be of such a nature as to be an affront, indignity or invasion of personal privacy.

As a general rule, if repeated failure of a worker to follow instructions causes harm to others, or interrupts production of goods and services basic to the employer’s operation, the discipline is likely to be upheld. Still, the employer must follow due process and regular, agreed-upon steps when disciplining.

Even when there’s no question the worker screwed up, a steward will still want to consider whether the punishment was excessive. Asking for lighter punishment in specific cases is the standard system for handling borderline cases involving good employees.

The best advice a steward can give his members is to obey the order and file an immediate grievance. The fundamental assumption, of course, is that the order or instruction is related to operation of the organization. When in doubt, always go back to find out how the union has handled similar cases in the past.

OFF-DUTY CONDUCT

What you do on your own time and away from work is none of your employer’s business, right? The answer to that question may surprise you.

Sure, unions realize that arbitrators constantly uphold management’s right to discipline employees for just cause when the misconduct takes place at work and on the clock. But just how far can management go in attempting to control an employee’s behavior away from the workplace?

For management to be successful, it must convincingly argue that the employee’s off-duty conduct conflicts with one of the employer’s legitimate business interests. Union arguments need to focus on proving that the conduct did not or could not negatively impact the economic objectives of the employer.

DID THE EMPLOYEE’S OFF-DUTY BEHAVIOR ADVERSELY AFFECT THE REPUTATION OR ECONOMIC INTERESTS OF THE EMPLOYER?

Grounds for discipline may include: threatening or harassing supervisors or coworkers, directly or indirectly harming the employer’s product or service, competing with the employer, or violent, destructive or perverted actions.

Employers may use claims that the public knew about the employee’s behavior because it was widely publicized and hurt the employer. The greater the media coverage where the employee is identified, and the more serious the nature of the off-duty misconduct, the stronger management’s potential case becomes.

To defend the worker, the union must have an accurate picture of just how wide-spread the news coverage was and whether the coverage clearly identified the employee. Only when the union knows the facts can it succeed in arguing that the employer is exaggerating the damage that the incident could cause to the business.

In cases where the behavior was so dangerous or perverted that co-workers want nothing to do with the employee, arbitrators have upheld discipline. Employers have a harder time with this argument when unions are able to show through the use of petitions or witnesses that the off-duty conduct has little or no effect on co-workers.

In all cases, management must be able to show a clear connection between the off-duty conduct and a harm to the employer’s legitimate business interests. Where the employer cannot prove the connection, arbitrators are reluctant to uphold the discipline.

PAST PRACTICE

Usually, a steward files a grievance after management violates the union contract. But at times the issue concerns a past practice that isn’t covered in the contract. Can you still win? The answer may well be yes.

Arbitrators recognize that not all agreements get reduced to writing, and not all benefits are formalized in a written contract. So, it’s important to give careful consideration to worker complaints that don’t appear to have support in the agreement.

This could involve anything: changing the way paychecks are distributed, perhaps. This is what the term “custom and practice” arises from – past practice.

The steward must be able to show that the past practice is clean and straightforward. The practice should be easy to understand and be used widely throughout the workplace.

It helps if you can show that the practice was jointly determined. If the steward can prove that management was aware of the custom and made no attempt to eliminate it, you are on firmer ground. Arbitrators have held that employers, instead of changing a practice during the life of an agreement, should serve notice that they will propose to get rid of it when the contract expires. If the practice causes no inconvenience or extra cost to the employer, that’s even better for the union.

It helps if you can show that there have been other grievances filed previously and settled.

The idea here is that management has a right to make changes. And remember that an employer has a general right to change work methods, equipment and the work process as part of managing the business.

PERSONAL APPEARANCE

Dramatic changes in clothing, hair, grooming and jewelry styles over the past couple of decades have caused a lot of friction between workers and their employers. Stewards should understand that while employers typically have the right to establish reasonable rules, those rules should not require conformity simply for the sake of conformity.

Back in 1969, citing personal freedoms protected by the U.S. Constitution, the U.S. Seventh Circuit Court of Appeals sustained a worker’s right to wear his hair at a length he chose. If an employer wants to have a rule limiting that right, the employer has an obligation to show some business or safety reason to support it.

The employer’s personal appearance rules should be discussed in advance with the union. They should be published in advance of their effective date, should be stated clearly and should be understood by the people the rules affect. They should be posted on the bulletin board, or individuals should be personally notified so that they understand what grooming or uniform rules are in force.

It’s difficult to enforce rules consistently where you have men and women, people of different ages or races, or where there is a considerable difference in the skills of the people covered by the rules. People working the night shift may get away with more than those on the more visible day shift. It is difficult to fire a man for wearing his hair long or wearing earrings. African-American workers may choose to wear an Afro, cornrows, dreadlocks or other hair styles that are different from their white colleagues. All must be treated the same in regard to clothing and grooming to make a rule enforceable.

When faced with a grievance in this area, stewards have a better chance of winning if they can show that their employer’s grooming or clothing rule is extreme compared to other employers in the same industry.

Also, the union is on stronger ground if it can be shown that the employee made a repeated effort to conform to the rule but was disciplined anyway.

Additionally, if you can show that a worker will suffer personal harm or difficulty because of the rule’s application, you may do better. In any event, the punishment given out should follow the normal grievance process.

The attitude of the public towards nonconformity has changed a lot. We have come a long way toward accepting diversity in appearance as long as it does not tread on the toes of fellow workers or the business interests of the employer.