A Hodgepodge of Information Concerning Discipline & the final step of Resolution, Arbitration

Some of the information here was sourced from "The Common Law of Our Workplace" and personal info from class notes and past experiences concerning the common laws of workplaces. Other sources will be cited within the blog.

Ever been fearful of disciplinary action in the workplace? Did you know . . . ?

Notice of Consequences!
An employee is entitled to be informed of or to have a sound basis for understanding the disciplinary consequences that will result from violating policies or work rules in effect at the employee's place of employment.

Comment
1) This reasoning is similar to one's right to notice and the opportunity to be heard before discipline is imposed for a specific offense.

2) Many/most arbitrators believe that employees are entitled to know what is expected of them in the workplace, and conversely, to know what action will befall them in the event they violate an employment policy or work rule.

3) Employee awareness often comes from collective bargaining contract provisions and from published or posted work rules and procedures. Some offenses are sufficiently serious, however, that as a matter of common sense and common understanding employees will be held to know the consequences of committing them, such as assault, especially with a weapon, theft, etc. 

4) Another important application of the proportions is that, in the administration of disciplinary action by an employer, employees should not have to suffer disparate treatment, that is, there should be equal treatment for like offenses.

Is Unchallenged Past Discipline relevant in assessing future discipline??

Unchallenged prior misconduct is generally relevant and may be entered as part of the grievant's past record. Even without requiring or allowing independent evidence of aggravation or mitigation concerning it.

Additional Comments
1) Most arbitrators hold with the thoughts that: discipline that could have been challenged at the time it was imposed and was not, is a matter of record as it exists in the grievnat's disciplinary file, and any further evidence concerning it is irrelevant. WHY? The reasoning is twofold; a) draw attention to the finality of the ungrieved discipline; b) to avoid contested evidence on matters that are already final. 

2) Evidence acquired after the discipline has taken place may not be considered admissible for grounds to issue new discipline. Although it may be utilized to support the original charges.

3) Knowing many plants/work sites, practices of "REFUSING TO SIGN" DISCIPLINARY NOTICES the above infor might cause a bit of rethinking on that issue. The signing for acceptance of a disciplinary notice is NOT an admission of guilt. But a stack of refused to sign notices in a worker's file that were SLIPPED in there be some untrustworthy fat cat that wanted to rush your trip to the street, would be hard to disprove at your discharge hearing that they were not legitimate.

CAN/DO ARBITRATORS examine witnesses?

The short answer to both questions is YES!
The degree to which arbitrators will examine witnesses varies greatly among the current arbitrators.

Additional comments
1) Depending on the personal makeup of the arbitrator and the circumstances of the case at hand, the arbitrator's involvement in the examination of witnesses will range from highly active to very passive.
2) The danger of being passive is that the case is likely to run away from the passive arbitrator. The parties will then go fishing in blind alleys in an attempt to prove their positions.
3) The highly active arbitrator runs the risk of taking the case away from the parties, appearing to the parties, individually or combined, to become council for their adversary. 
4) Arbitrators have an obligation to reach a decision that gets as close to the truth as possible. Many will search for that truth through a variety of methods. This usually does not include arbitrators calling witnesses or asking for the production of documents.

Therefore, the most popular method to find the truth is to question the witness after the council had finished.

Below are a few common questions that come about often on the shop floor or work site, along with the answers.

DUTY OF FAIR REPRESENTATION (DFR)

Question: The union rep's withdrew my grievance nine months ago. Can I file an NLRB charge of failure to exercise the charge their duty to fairly represent (DFR) against the union?
Answer: No. The statue of limitations on DFR charges (and lawsuits) is six months. HOWEVER that time only begins the day the employee was notified that the union dropped the grievance. A good cause for both the union and member to maintain proof as to the date the grievant received notification the grievance was dropped.  (See: DelCostello v Teamster, 462 U.S. 151, 113 LMMR 2737 [U.S. Sup. Ct. 1983])

Question: The union lost an arbitration case of a discharged worker. The worker wants the union to appeal the arbitrator's decision to federal court. The union believes this would be fruitless, but the worker is threatening to sue the union. Does the union have to file a court appeal of the arbitrator's decision?

Answer: Union grievance processing duties extend only to the contract procedures. The union is not required to file a court appeal when it loses an arbitration case. 

Question: The union is grieving a four-hour overtime violation. The grievant wants the union to go to arbitration, but this will likely cost the union thousands of dollars in expenses. It seems foolish to spend so much for four hours pay, especially when the union has limited funds. Does the union have to arbitrate?
Answer: No. Unions are allowed to consider the costs of arbitration. A union with a small treasury may not be able to arbitrate a case that a larger union could take on. The NLRA is not violated when the union, acting in good faith, declines to arbitrate for legitimate financial reasons. NOTE: Cost considerations carry less weight as the importance of the grievance increases. Discharge cases are the most important. Unless the case is hopeless, a union will be hard pressed to justify a decision not to arbitrate a discharge solely because of the expense.

Question: The union's executive board voted not to take an employee's grievance to arbitration because they were afraid of losing the case and setting a precedent that will hurt other employees. The employee says he/she is willing to pay the arbitration fees herself and hire his/her own attorney. Under these circumstances can the union refuse to take the case up? 
Answer: Yes. The decision to arbitrate is the union's and the union's alone. Individuals cannot compel arbitration by offering to pay for it.

A TYPE OF ARBITRATION RARELY UTILIZED
(Info from the common law of the workplace and the school of hard knocks!)

A bench decision is a decision the arbitrator issues on his/her own motion, or, at the request of either party. The arbitrator may give a bench decision if he/she feels any of the parties' best interest will be served. NOTE: Unless the parties' contract/agreement restricts a bench decision it is at the sole discretion of the arbitrator to issue such award.

A bench decision is also issued more quickly than the normal arbitration process follows. Normally it is issued the day of the hearing or the next day by phone, fax or mail. Many time the arbitrator will warn the parties of his/her intent to issue a bench decision. He/she may even advise the party who has a weak case that it would be in their best interest to call for a recess and resolve the issue before he/she does.

This process is sometimes used to take the grievant from a world of the uncertainty of being discharged, and, stop the further liability of the company.

Again, this decision process is rarely utilized. I have never issued a bench decision as an FMCS arbitrator, nor have I ever had one issued as an advocate in the 230 or so arbitration cases I have pitched (heard). I understand my home Local UAW 933 has received one such decision in its history.

CAN I REQUEST A SPECIFIED UNION REP??
Can a member select a particular representative to represent them instead of their regular rep?
Yes, if the two representatives are equally available, an employee's request for a particular representative must be honored. Reference: Consolidated Coal Co., 307 NLRB 976, 140 LRRM 1248 (1992)  NOTE: Most UAW contracts fail to provide for such rights or they restrict us from using such rights. HOWEVER: The parties cannot enforce agreements that violate applicable law; the MUST change them to comply with the law, without a requirement to ratify them.

LAST CHANCE AGREEMENTS
In some instances the parties may settle a disciplinary grievance with a "last chance" agreement. These agreements vary in terms but usually grant the employer discretion to discharge the employee for any subsequent offense (sometimes for a subsequent similar offense) and commonly state or imply that the usual procedural protections will not apply, such as just cause, etc.

One of the most common occasions for last-chance agreements is the reinstatement of an employee discharged for problems related to substance abuse. 

Depending on the language of the "last chance," the agreement may definitively resolve the question of whether a given offense provides a legitimate basis for discharge. Such an agreement may bar an arbitrator from imposing a further requirement of proportionality or progressivity, but it normally would not bar inquiry into the question of whether the employee committed the final offense charged by the employer.

Relationship to the "Just Cause" Requirement. Depending on the wording the agreement may or may not replace the just cause requirement. Because the just cause requirement is so fundamental, an arbitrator should not, without express language, presume the parties intended to abandon it. If the agreement does replace the just cause requirement, the arbitrator's authority may be limited to interpreting the last chance agreement itself and determining whether the employee actually violated that agreement.

Necessary Parties: In a unionized workplace no employee may enter into an agreement that conflicts with the collective bargaining agreement. The union, however, is generally free to modify the collective agreement, even in the context of a last chance agreement affecting a single employee. If the last shance agreement conflicts with the collective agreement, the union must be a party to it before it will be binding.

Illustration
The grievant signed a last chance agreement when her employer threatened to discharge her for repeated tardiness. The agreement provided that the company could discharge her for any further tardiness within the next year and that the company's decision was "not subject to the arbitration procedure." She neither sought nor was offered the union's advice when she signed the agreement. Six months later she was 15 minutes late to work after a collision between a car and a truck blocked the road to the plant. The company fired her. The union filed a grievance on her behalf, claiming that the discharge violated the collective bargaining agreement's just cause provision. The company claimed the grievance was not arbitrable because of the last chance agreement. The grievance is arbitrable. No agreement between an individual employee and the employer can amend the collective bargaining agreement.

Duration: A well-drafted last chance agreement will specify an expiration date, after which the employee will be subject to the same disciplinary rules and procedures applicable to other employees. If no duration is stated, an arbitrator should find that the parties intended it to last a "reasonable" time, depending on the nature of the offense, the parties' practices, and other relevant factors.

Where do we start?

Here is a list of the most common complaints I hear and read from local union members.

1. Management doesn't care how many grievances there are. They just refuse to settle.

2. Management laughs at me when I call for my rep.

3. No one does anything about safety complaints.

4. My co-worker(s) are a pain in my ass.

5. People work breaks/People yell at me when I work breaks. 

6. Temps do extra work/Temps are lazy.

7. No one gives a damn about my problems.

8. My job is overloaded.

9. My pay is always screwed up.

There are many others, but I have chosen these as a place to begin. Why? Because to me these complaints tell me one thing: Management, not the union, is in control.

Well isn't management always in control? Don't they run the place? Don't they pay the wages? etc. Yes, Yes, Yes and No.

What the union must control is the "etc."

The labor movement was begun as a counter-balancing force against unfair management. Management's job is to squeeze every little bit of work out of you they can for the lowest price. If you think they care even one little bit about you then you are a fool. If you die on the line they'll just plug in someone else. They don't care if you go blind, wreck your back, get carpal tunnel, lose a hand or fracture a skull. You are replaceable. Don't believe me? Well buckle up buttercup because believe it or not that is exactly the way it is.

Let me tell you a story. Not long after the plant opened in Ft. Wayne the eight (8) year old daughter of a 2209 member was kidnapped, raped and murdered. I attended the visitation as did many members. Not one single SOB from management did. NOT ONE! This was the most horrible time that this family was ever going to go through but the managers our brother worked with every day as well as the upper managers from our "team concept" plant couldn't be bothered to attend. The next morning I threw a tantrum at the plant staff meeting and I peeled every one of their asses. I yelled, I swore, and I did everything I could to humiliate them. They turned out for the funeral and the member never knew what I had done.

I tell this story for two reasons: 1) You better believe they don't give a shit; and, 2) What I did is the "etc." I talked about above. The union has to care.

Now I'm not going to get to all the points I listed above because it would make the post overly long for most readers and I have some more groundwork to lay first. But I promise to get to every one of them in this and future posts.

Here is the first thing I need to make clear. You are "the union." You. The guys in the work center, the e-board members and the appointed people are not the union. They are part of it, but You are the union. 

Rule number one is that management doesn't give a damn. Rule number two is that You are the union. Get those things firmly in your mind. Nothing I write about from this point forward will be worth a thing until you understand and believe those two points.

You know what the above means? It means You are the "etc." And sisters and brothers you can make stuff happen! 

But not alone. Together. Eugene Debs, a great labor leader put it this way, "I would be ashamed to admit that I had risen from the ranks. When I rise it will be with the ranks, and not from the ranks." 

Let's talk a bit about #s 1 and 2 on my list. 

1) Management doesn't care how many grievances there are. They just refuse to settle.

Why won't management settle? Simple. They don't have any incentive to make it worthwhile. Bargaining reps sometimes get lazy. They think, "I've written the grievance and gotten the member off my back," instead of thinking, "I've got a member with a problem that needs to be taken care of." Managers think, "the union doesn't care," and grievances pile up. Eventually comes contract time and some kinds of settlements are made, usually for less than the full dollar amount, or after members have been out on discharge for a long time, and long after many of the problems simply died of old age.

How can that be changed? 

As usual I'll begin with a story. When I was a committeeman I met with the Superintendent EVERY Tuesday I was in town to settle grievances. He had reasons to want a low count (it made him look better than the other supt's) and I wanted problems solved. I made it easier by not writing stupid grievances, and eventually he realized settling made sense. (See my previous post for a further discussion of this point).

Why did I meet on Tuesday? I knew the supt. required all his supervisors to give him their fact sheets on open grievances on Monday. This was leverage I could use. If a foreman was being an ass, I waited 'til Friday afternoon to write a grievance (or two or three). Then the foreman either had to write a fact sheet before he left work, or do it on his or her weekend. Either way it was a pain in their ass. And, if they wrote a lousy fact sheet I'd not only get the grievance settled, but they would get their ass kicked.

Another point: It was easy to know what grievances were important to the supt.--any one that made him look stupid, for example. I NEVER let the supt. determine the order we would discuss grievances. His would ALWAYS be on the bottom of the list I'd submit. When he'd try to move it up, as he often tried, I'd just say no, we'll go from top to bottom.

If he wanted to try and avoid settling I'd give him two weeks. Then I'd send it up to 2nd step. He hated that, since whatever I wrote was a good grievance the labor reps would call and raise hell with him.

And I would ALWAYS remind him when he had to sign off on a grievance that the foreman could have settled it right away, saving the supt. time and embarrassment. 

Fine, Wray, but that doesn't keep my foreman from just blowing off me and my rep.

That, brothers and sisters, can be stopped as well--it just takes a bit more work and cooperation from the chairman/shop committee, and, a bit more explanation from me, so I'll leave the discussion here and pick it up next time.

But first, let me take care of an easy one: paycheck errors, number nine (9).

Fixing paycheck errors is NOT the rep.'s job! It is the supervisor's job. He or she is responsible for the time.

If I got called out on a paycheck error here is how the call went: I peeled the supervisor's ass for wasting my time and told him to fix it RIGHT NOW! If he tried laughing it off (and a few did, but only once) I would page the superintendent with an emergency 999 to let him know the call was important. When he called back I told him I had a paycheck error I needed him/her to fix. The response was always the same. "That's not my job! I'm not going to waste my time . . . talk to (the supervisor). I'd tell him I did and he said he didn't care so I called you. Usually that is all it took. The superintendent would usually just take the phone and make damned certain the supervisor knew he didn't want to be bothered with piddly stuff. Just once a superintendent blew me off. I called the general supt. If you think the supt was pissed at the foreman just think how pissed the general supt was to have to deal with the matter. I never had to deal with paycheck errors after that.

It wasn't so hard after all.

Solidarity forever isn't just a song lyric; it is the union way of life. 

 

  

Why Retirees aren't receiving a basic pension increase (catch up raises) as we did in the 60's, 70's, 80's even up to the 90's.

Allow me to shed some light on ONE reason retirees seem to be forgotten at the bargaining table (while our former employers rake in billions of dollar from the businesses we helped build over the years.

A United States Supreme Court decision, Chemical Workers v Pittsburgh Glass 404 U.S. 157 (1971) Allied Chemical & Alkali Workers of America, Local Union No. 1 v Pittsburgh Plate Glass Co., Chemical Division in Case # 70-32.

Argued October 20, 1971
Decided December 8, 1971
404 U.S. 157

The Court held:

Retirees benefits are NOT within the meaning of SS 8(a)(5) and 8(d) of the National Labor Relations Act a mandatory subject of bargaining as "terms and conditions of employment." PP. 404 U.S. 165-176.

The Act only requires the collective bargaining obligation to extend to the "terms and conditions of employment" of the employer's employees," and the term "employee" has ordinary meaning, i.e., someone who works for another for hire (which excludes us old codgers who've already retired). PP 404 U.S. 165-171.

Retirees are not members of the unit represented by the Union because they are o longer "working," nor could they be members since they lack employment with the employer of the unit and a substatial community of interests with the active employees in the unit. PP 404 U.S. 171-175.

Although it is argued that an industry practice of bargaining over retiree's rights has existed from the beginning of pensions (which is disputed), it cannot change the law and make into bargaining unit "employees" those who are not employees of the employer. PP 404 U.S. 175-176.

The justices further state, retiree's benefits are not a mandatory subject of bargaining as terms and conditions of employment"  of the active employees remaining in the bargaining unit, although retirement plans for future retirees are. PP 404 U.S. 176-182.

Definition of mandatory v permissive subjects of bargaining!

Mandatory subjects, (wages, hours and other conditions of employment) you can bargain to impasse and enjoin in concerted activities to bring about a settlement (strike). Also, after an impasse is reached, the management has the option of implementing a lockout to bring about a stettlement (a management strike against the workers.)

Permissive subjects, providing both sides agree, you can discuss/bargain the permissive subject, but neither side can bargain to impasse over such issue. Neither sides can be bound by law to bargain nor can they reach an impasse over a permissive subject of bargaining. The true hillbilly definition of a permissive subject of bargaining is . . . find your best set of knee pads and beg the top fat cats to trickle down a few crumbs to us old codgers who've been kicked to the curb after our bodies are spent.

When the court ruled "The Act only requires the collective bargaining obligation extends to the 'terms and conditions of employment' of the employer's employees," what happens to our non-employed dependents when our employers get a tad bit greedier--if that is even possible??

Now I'll dive into the history of bargaining for retiree pensions of the past using info from my collection of old UAW highlight booklets and Big 3 auto contracts. I'm sure you will find it interesting, especially if you are retired or retirement eligible.

Keep in mind, even after the PPG Supreme Court decision of 1971 was issue, retirees still received "catch up" increases in their basic pensions. In fact, the last catch up raise I can track happened in 1996. The last basic benefit raises for future retirees occurred on 10/1/10 and the rate was increased to $54.30 per month per year of service in the GM structure.

So, if strategies utilized from 1971 until 1996 were successful in gaining retiree increases (catch up) in their basic benefit after retirement, why aren't they utilized today?

Since the Big 3 have always held to the principles of pattern baraining, (so far) these figures will fit most working folks in GM Ford and Chrysler. They will also apply to many of the larger Independent Parts Supplier (IPS) plants.

Pensions were first vested in the auto industry in 1950. In 1970, after a nine (9) week strike in GM, "thirty and out" pensions were achieved for the Big 3 auto industry. Our union was financially exhausted after that fight. We were millions in hock to GM for past health insurance payments, we owned the Teamster's millions of dollars and our newly built Black Lake educational center was also in hock. However we survived the fight and even made gains such as lifting the 1967 cap on our Cost of Living (COLA), winning the 30 and out, increasing vacation entitlements from three to four weeks per year and a few other goodies as well.

You might not the date of the PPG pension settlement decision (December 8, 1971). It sure didn't take long for the fat cats to get into courthouses to strip (or severely alther) our gains made as a result of carrying signs while walking up and down the streets in front of their plants. 

1970 Pension rates increased from $500/mo. to $575/mo.
From $575/mo. in 1974 to $915/mo. in 1982
From $915 in 1982 to $1200/mo. in 1987
From $1200/mo. in 1987 to $1500/mo. in 1989
From $1500/mo. in 1989 to $2030/mo. in 1995
From $2030/mo. in 1995 to $2295/mo in 1998
From $2295/mo in 1998 to $3000/mo. in 2008
From $3000/mo. in 2008 to $3170 per mo. in 2010

Today nothing has changed since 2010

There have been a (very) few catch up raises and some of them came with questionable give backs. Retirees used to have a $2 co-pay on prescriptions. No more. No more Christmas lump sum payments (once as high as $700). Loss of certain health care benefits--notably vision, dental, hearing (Some of which have been re-instated). And another big one: The Big 3 used to pay the monthy Medicare cost. No more. Today it takes $134 out of your monthy Social Security check!

What the hell is happening?

There were gains in the past for retirees, but not today. We have lost our place at the bargaining table by design. GM and the UAW have agreed to eliminate defined pension plans. Now they reason that if no defined plan exists for current workers why should they waste time and money on the old-timers. 

My closing advice is this: For both former and future retirees--don't let either party (GM or the UAW) con us into lowering our expectations. Don't fall for proposals that "give" to some but not to others. United we stand. Divided we beg as we fall.

Solidarity forever is not just a song lyric--it is the union way of life.