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Write It Down

Shop stewards spend a lot of time talking -- preaching unionism; communicating important information about our job; educating members about critical legislative issues; or just telling members what they missed at the monthly union meeting.

We live in a talking culture. We forget to put things down in writing. That's not what they teach in business school or in law school. Supervisors and lawyers have been trained to put everything down on paper.

It allows them to control what is called the record. If you go into a grievance meeting and your supervisor takes notes, chances are those notes will form what is called the record of the meeting. Your memory and their memory can be faulted. Notes cannot.

You need to get into the habit of buying a small notebook and using it in all of your capacities as a steward. Most important, use it while you are handling complaints and grievances.

In your interview step with the member, write down what he or she says. Don't worry about spelling. Just get it down.

The very act of writing the member's story down conveys a professional image of your role to the member. And just as important, the member may be more truthful in giving you the whole story -- warts and all.

Sometimes members think they are helping the steward by embellishing a story to make it more convincing. Our role as steward is to get the truth and get the member justice. The act of writing contributes to that goal.

Taking notes also allows you to compare conflicting accounts of the same story. It also demonstrates to management that you are serious and professional in your union role.

Employer harassment

There are times when a member comes to his or her steward with a complaint about a supervisor who seems to be picking on the member. He or she gets the worst assignments. Or the supervisor always seems to breathing down the member's neck.

Issues such as employer harassment are ones which usually boil down to the member's version of the story versus the supervisor's version.

As soon as a member comes to you with a harassment issue you have got to tell the member to document each and every incident in which the harassment occurs. Just as management builds disciplinary cases against our members, we have got to build the case against the offending supervisor.

Tell the member to write down the incident, when it happened, what happened, and were there any witnesses. By putting together a record of the harassment, the member is directly involved in the grievance process and the local union will have the necessary documentation to make the best case.

Remember, get into the habit of writing down everything.

10 Hints for Grievance Meetings

There's a lot of anxiety that goes with the first level grievance meeting. It shouldn't be that way. Here are ten tips to get your better prepared and more in control of the agenda and the meeting.

1. Preparation. Let's start with the obvious. You can't wing it. Do your homework. Investigate the issue. Talk to witnesses. Bring your paperwork. Think about how you want to present the case. You need a strategy. Write down your talking points. Go under the assumption that the other side knows the same facts as you do. For the most part, they have better access to the company information.

2. Remember the "what ifs." This is also about their presentation. Anticipate what the manager will say and be prepared to counter it. Walk their walk so you can at least understand what their plan will be. There's nothing more difficult than going into this meeting convinced you've got a sure winner. You will be blind to what they will throw at you.

3. Stick to the issue. The steward who controls the agenda controls the meeting. Do not let the manager discuss side issues. Keep to your mental agenda. Insist on staying on point about the grievance.

4. Don't let it get personal.  Avoid the fight. It's about the issue. Once you get personal, it becomes impossible to resolve the issue. Don't get excited, angry or hostile. A supervisor could be pushing your buttons to get you off topic because the employer has no case or no defense of its actions. And don't let the supervisor goad the member into a shouting match.

5. Listen to the other side.  Try to narrow the area of difference between union and company. Listen intently and look for solutions to the problem that the company may feel it can only reveal by subtle implications, hints, indirect suggestions, or body language.

6.  Get your signals straight before the meeting -- Make sure the grievant knows that you will present and rebut. Give them an understanding of the process before you walk into the meeting. Allay their fears. Give them an honest assessment of the meeting and its possible outcomes. Inform them to clear questions with you first and tell them why you will caucus to discuss issues out of the range of the company.

7. Avoid arguments in front of the boss.  Once you are in the meeting with management, maintain a united union front. If you have a difference of opinion during a meeting, take a recess and iron the problem out in private. It does not look unprofessional to call a short caucus. If the grievant looks as if he or she is damaging the case, stop the meeting and ask for a short break until things calm down.

8. Ask questions -- Do not accept anything at face value. If you do not understand something, ask. Do not accept unclear answers. You have every right to come to the truth. If you are not satisfied with an answer, make sure you go on record.

9. Document and documents. Come to the meeting with your prepared talking points. Also bring any documentation. Your paperwork, such as map of workplace, a list of phone conversations, or chronology of events becomes the focus of the meeting and you can begin to control the process. Take notes during the meeting. Better yet, bring another steward in to take notes.

10. Be prompt. Follow the grievance through. Refer the grievance to the next step when not settled. Give the representative above you all the facts; also the arguments used in your discussion with the supervisor. And keep the grievant informed.

Insubordination -- a dozen questions to ask

    One of the most troubling and difficult issues for the shop steward is the issue of insubordination.  Many contracts say in clear language that an employee can be disciplined and discharged for insubordination. 

    For employers, insubordination is considered one of the deadly sins, right there with theft and violence.  They will be hard-nosed and unforgiving on the issue.  That is why arbitrators hold for almost every discipline case involving insubordination the rule is “obey now, grieve later.” 

    But in the heat of an argument or in situations where a member may be provoked beyond all common sense, the thought of filing a grievance over the issue may be furthermost from their mind.

    Let’s go over some of the basics here.  First, insubordination is usually defined as the failure by an employee to perform a task or comply with an order given to him or her by a supervisor.  An arbitrator will usually look at an employee’s compliance with a reasonable order as basic to the conduct of the employer’s business.  Arbitrators take the issue of insubordination very seriously and consider it a major infraction beyond the rules of progressive discipline. 

    Simply put, refuse a reasonable order and you can be discharged.

    Life, however, is never that simple.  There are a number of issues that must be taken into consideration in any insubordination case.

    1. Was the employee given a direct order?  Mere instructions, suggestions, or advice are not the same as a direct order.  A well-trained supervisor will say in no uncertain terms, “I am giving you a direct order to complete that job.” 

    2. Was the member aware that he or she was given a direct order?  A member may not have understood that the language used by the supervisor was a direct order.

    3. Was the language clear? For example, a member might be told to stop smoking.  As part of their job, they may go to another location in the facility and light up another cigarette.  Caught smoking a second time, the supervisor might discipline them for disobeying an order.  But how clear was the original order?  The employee might have thought that he had to stop smoking at his original work location only.

    4. Was the order audible?  Many of members work in very noisy locations.

    5. Was the member given forewarning of the consequence of a refusal to follow the order?  A well-trained supervisor will use words that clearly indicate a disciplinary consequence will follow the refusal to obey the order: “If you do not comply with my order, I will take you out of service.”

    6. Did the employee willfully disobey or disregard the order?  Most cases demand that the refusal to follow an order be willful.  A member may say that she was provoked by a supervisor -- by abusive language for example.  If a member comes to you with that kind of defense, you must dig down deep to find out why.  In most cases, provocation is viewed by an arbitrator as a way of lessening the discipline, but not overturning it.  An exception to this might be if the order was an affront to the basic dignity of the member.  Racist or anti-union comments in the form of an order, for example, have no place in the shop and should be reported immediately to the union for action.

    7. Was there an ongoing dispute between supervisor and member?  If this can be documented over a period of time, the issue may be harassment.  But to prove harassment, you need clear documentation from the member of instances where he or she was picked on.   

    8.  Was the supervisor being unreasonable? The supervisor may have had a tough deadline to meet for production and a small incident sets him or her off.  The likely target becomes the member who just happens to appear in the cross hairs. 

    9. Was the order reasonable and necessary to the safe, orderly and efficient operation of the business?   Did the order violate the contract, work rules, past practice, past arbitration decisions, or the law? 

    10. Did the member feel that complying with the order would endanger himself or herself and his/her coworkers?  The right to refuse dangerous work is upheld by the Occupational Safety and Health Act. You must make your members aware whether they are covered by this language or a similar state statute. If the work is unsafe, a member must report it and ask that it be made safe.  Rather than an outright refusal, safer language might be, “I will comply with you request when the unsafe condition is corrected.”

    11. Was the member set up?  This has happened often enough to make us suspicious of employer motives.  If you are suspicious of the situation, make a thorough investigation.  Check for witnesses and motive.  Recreate the incident as accurately as possible.

    12.  Did the charge of insubordination arise out of the member executing his/her role as a union officer?  If the member is a shop steward and got into a shouting match with the supervisor at a grievance meeting, the steward’s conduct is protected.  In cases of union duties, the steward or officer is an equal of management in labor-management issues and cannot be disciplined for exercising that role.

    As a shop steward, you need to thoroughly investigate all charges of insubordination. In certain cases, you may be able to lessen the punishment, particularly if the employer is inconsistent in applying standards of behavior to you unit. But that means your local needs to keep excellent records. Also, a good work record may mitigate punishment in borderline insubordination cases.

    The bottom line is that as a communicator, you must tell all your members never to refuse a properly worded direct order. Check with the union before considering disobeying the order, even those health and safety orders.  Lastly, a member can safely obey most orders and grieve later.


Preparing the disciplinary grievance

    Many grievance cases that are brought to the local unions involve some form of discipline -- alleged absenteeism, poor job performance, charges of insubordination, or inappropriate work behavior. For the union, discipline cases deal often with the issue of credibility  - whether the member's version of what happened can be reasonably believed.

    This means that the member's story must be constantly tested to determine exactly what happened.  It's human nature to be emotionally involved in an incident.  For example, a grievant might describe what happened but their choice of words might give an inaccurate description of the chain of events.

    Or they may stretch the truth in order to get you to believe them.  Details of conversations might be invented.  The member might mistakenly place a witness closer to the incident than they actually were.

1.  A steward must constantly go over the story, checking every aspect of it.  Challenge the story as you would expect management to challenge it.  Explain to the member that you are not doing this to undermine him or her, but to help put forward the strongest case for them. You don't want any surprises.
    
2.  Try to find other credible witnesses who support the grievant's story.  Different witnesses see the same event differently.  Don't be surprised at this.  

3.  Talk to the supervisor or company witnesses beforehand.  Check out their story and write it down.  You might need to refer back to these conversations at the disciplinary hearing or grievance appeal.  If you can show that the supervisor said one thing to you at your meeting and then he or she contradicts this story at a hearing, you begin to build a case that questions the supervisor's credibility.

4.  As a representative of the union, you have a right to the member's personnel record.  Employers may have specific procedural policies about getting the record, but you need it prior to any meeting with management.  If you can't get it in time, request a postponement of the meeting without prejudice to the negotiated time limits on hearings or grievance appeals.  In most cases management should be reasonable about postponements because they may at some other time come to the union with a similar request.

5.  Make certain that the member's record is accurate.  If there are entries on the record that should have been removed after a certain time period (some contracts have time limits for adverse entries), hold the employer to those time limits. Employers use personnel records to build their case against a member.  

6.  Hold the employer to the same standard that they use on union members.  Refer to the contract and rulebook to see if there was a violation.  Even if there was a violation of the rulebook by the member, the rule must reasonable and known.  Ignorance of the employer's rule is not a strong defense, but there may be some mitigating circumstance such as poor communication of the rule by the company. If the rule is not reasonable or related to the work, safety of others, or company image, you may be able to argue that the grievant should not be held culpable.  

7.  Compare the member's actions with others.  Make sure that he or she did not do things any different or worse than others who were not disciplined at all or received a lesser penalty.  You may be able to argue that the company is being arbitrary or discriminatory.  

8.  In cases of insubordination check to see if the grievant was provoked or tried to defend himself or herself.  Consider the supervisor's motive.  Was the member being set up? 

    Your role is to build the strongest case for the member and that means making a believable case.        

Guidelines for the disciplinary hearing

Disciplinary hearings are governed by law, contracts, and/or company procedures.  These meetings can be very formal or they can be conducted as informal fact-findings. You should be aware of the way your employer holds a disciplinary meeting. In general, the union steward should follow these guidelines:

1.  Speak to the member prior to the hearing. If it is a formal disciplinary hearing with a notice, check the notice and proceed with an investigation of the alleged infraction. If you are called in at the last minute, inform the supervisor you need some private time with the member at the beginning.

2.  When you speak with the member, find out what happened. Usually we forget to add the obvious -- Tell the member what he/she should expect to happen at the meeting. Explain your role. Set the ground rules for your side at this point.

3.  Get as much information as you can beforehand, if possible. Do not let the employer withhold information.  If they do, speak to your local union. Document any denials of information in writing and get it on the record.  

4.  If there are any witnesses at the meeting or hearing you should question them as you see fit. In formal hearings, the process of questioning the company’s witnesses is called cross-examination.  You have a right to ask these witnesses questions to determine the accuracy of their testimony and their biases. Your rights to questioning should not be interfered with by the hearing officer. If you are denied that right, make sure that such denial is entered on the record.

5.  It is perfectly proper for members to answer questions with, “yes,” “no,” or “I don’t know.”  Once the member has answered a question, he/she is under no obligation to elaborate.  

6.  You are the chair of the meeting for the union. All questions and statements from the union side should come from you. This is how the union controls its ranks at the meeting.

7.  At most hearings the steward can take as active role as he/she sees fit. You can be assertive but you shouldn’t be disruptive.

8.  You can stop the meeting at any time to speak privately with the member.

9.  Take notes. Better still bring in a second steward to take notes.

10.  Do not rely on the supervisor’s notes as a record of the meeting. If this is a formal trial, such as in the railroad industry, make sure that the trial transcript accurately reflects what happened at the meeting.

11.  The written record is important.  It documents what actually was said, not what was allegedly said.  Cases have been won and lost on the accuracy of the record.

12.  The bottom line is to make sure that the member is treated as fairly as possible under circumstances that are heavily weighted against him/her.  You must handle all discipline as if the case will go to arbitration. Remember, even if the investigation does not go the way you had hoped, you can challenge the discipline, the way in which management conducted itself through the process, and/or the just clause section of your contract by appealing through your grievance procedure.

The steward's role in a disciplinary meeting

So what must a steward do at a disciplinary meeting?

Let's look at some basics. A steward needs to make sure that members are aware of their representational rights. It is the steward’s job to insure that the member comes to you with most work-related problems. If there is some kind of disciplinary investigation, the member needs to ask for your presence. In most cases, the member has to ask that you be called into the meeting. The key for every steward is to get into the meeting.

Here is what the member should say:

"If this discussion could in any way lead to my being disciplined or terminated, I respectfully request that my steward be present at the meeting. Without representation present, I choose not to respond to any questions or statements."

Once the member has asked for your presence, the employer must take one of three actions.
  1. The request should be granted and the meeting delayed until the steward arrives.
  2. The employer can deny the request for the steward and then must end the meeting.
  3. The employer may also allow the worker to choose to continue the meeting without a steward or choose to end the meeting. It is very unwise for any member to choose to continue the meeting without a steward present.
You will find that the employer will come up with all sorts of excuses to bar you from the hearing. They may decide to hold the meeting during the late night shift when no steward is available.  Or they may assign another member as a witness to the hearing. This activity is unacceptable and should be protested. Few issues are so critical as to merit a hearing when a steward is not available.

A member may think they can handle the situation themselves but we all know too well that such an experience will backfire and then you will be called in after the damage is done. You must be there to protect the member's rights from the beginning.

That means you need to be able to meet privately with the member, preferably before the hearing has started, but certainly as early in the meeting as possible to talk with the member. Whatever time you take, it should be enough to do perform three functions. First, you need to hear from the member what happened. Second, you need to tell the member what the process is about from the union's perspective. Lastly, the member also needs to know that whatever comes out of the hearing, they have a right to appeal the discipline.

They also need to know how to act in the hearing. You are the advocate and they should consult with you if they have any questions. You role is active. You can’t be silenced but you must not obstruct the meeting. 

Your role is to ensure that the member has a fair hearing in an environment that can be hostile. That's what due process is all about.

The right to representation in disciplinary hearings

Discipline cases often make up the majority of grievance work for union locals and the process usually starts when a member requests that the shop steward be present at the disciplinary meeting.

In disciplinary cases, a member has the right of due process -- the right to a fair investigation and a hearing on the issue. Whether the hearing is as formal as a trial, which is what it is called in the railroad contracts or less structured as in a fact-finding, there are some basic rules that apply to all disciplinary hearings.

The most important rule is the steward must get into that meeting. Many contracts guarantee that right. But it doesn’t have to be spelled out in the contract to get you in the room. If a member is called into a labor-management meeting in which he or she feels that disciplined may be assessed as a result of the meeting, they should request their steward be present. Sounds simple?

For unionized workers under the National Labor Relations Act, such as those who work for private companies, the right has been tied to a Supreme Court case that is known as the Weingarten decision and this right is sometimes referred to as a Weingarten right. A number of states have statutes on the book that follow Weingarten so some public employees also enjoy that right. New York, for example, guarantees that right for public sector workers.

The law is less clear under the Railway Labor Act (in the railroad and airline industries) so it is important to negotiate the right to that kind of representation so there is no doubt between the company and the union. Although it is really in the interest of the employer for the steward to be present in the meeting, you certainly can't rely on the boss's good graces to get you in there. That is why airline and railroad workers should simply ask for the steward to come to the meeting.

Welcome

Welcome to my blog. This blog is intended to give you the tools to represent your members. Look for the first entries soon.

About Robert Wechsler

I am a labor educator and historian and believe deeply that we can never forget the contributions of those who came before us as we confront the new issues that we face today. I began work for the Transport Workers Union of America on the third day of the New York transit strike in 1980. I have been their Education Director for 20 years and their Research Director for nine years. I am currently working on projects for the New York Transit Museum, the largest museum in the world devoted to mass transit.

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Recent Comments

  1. Christopher Mikkelson on Do I Take the Grievant With Me?
    1/9/2011
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    11/4/2010
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  4. Robert L Payne on The right to representation in disciplinary hearings
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  5. Deirdre Gilbert on Insubordination -- a dozen questions to ask
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  6. Lorri Greif on 10 Hints for Grievance Meetings
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  7. Tracy Geise on Welcome
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  8. John Remington on Preparing the disciplinary grievance
    9/8/2010
  9. Brian Greenberg on Welcome
    8/28/2010

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