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.

Dangerous Work

What is your best response when given a direct order by the fat cats?

In general your best response when given a direct order is simple: Obey now, grieve later.

But there are exceptions and we will discuss them in this post.

Two factors should be understood by working folks up front; 1) the concept of Imminent Danger, and 2) What constitutes an order. Let's define each.

1. Imminent Danger: Imminent danger is a workplace hazard that puts us at immediate serious risk of death or serious physical harm. It may be a safety hazard such as an unstable trench or exposed electrical wiring that could cause a serious of fatal accident. It could also mean exposure to toxic substances, dangerous fumes, dust or gases that may cause death or irreversible physical harm, shorten life or reduce physical or mental performance. 

In teaching classes as an International Represent-ative when discussing worker's rights I always included a couple of imminent danger scenarios in my simple hillbilly fashion. For example I would tell classes that if you were ordered to jump from the roof of a first-floor, partially in ground building, and it is a relatively short fall to the ground, you'll likely want to consider using the "obey now, grieve later" approach. On the other hand, if it is a 10-story building, all above ground and the imminent danger is obvious, your response to the order should be, "Oh, HELL NO. I'm not jumping."

2. What constitutes an order? This is important. If your boss starts an "order" with words such as "will you," "can you," "you should," "please," "maybe," etc. it is not likely to meet the test of a direct order. Remember, my last post discussed the Daugherty Seven test. One of the questions the company must answer is did the company give the employee forewarning or foreknowledge of the possibility or probability of disciplinary consequences of the employee's conduct. An order mean that the DEMAND be clear and precise. You must know what your fate becomes for failure to comply.

So what are our rights to refuse dangerous work? How should we use those rights to refuse imminently dangerous assignments?

1. If possible or practicable raise the issue with the supervisor. Inform him/her that you believe carrying our the order places you in imminent danger.
2. Although you have rights to file a complaint with OSHA concerning a hazardous working condition at any time, this option is useless in cases of imminent danger, so . . . 
3) You should not leave the worksite merely because you have filed or will file a complaint. When the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard.
4) Remember that OSHA cannot/willnot enforce union contracts that give employees the right to refuse to work.

So, what triggers our rights to refuse unsafe work assignments? Your rights in refusing to perform a task are protected if all of the following conditions are met:
1) Where possible you have asked the employer to eliminate the danger and the employer failed to do so; and
2) You refused to work in good faith. This means that you must genuinely believe that an imminent danger exists; and,
3) A reasonable person would agree that there is a real danger of death or serious injury; and,
4) There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels such as requesting an OSHA inspection.

Given the above these are the steps you must take:
1) Ask your employer to correct the hazard or to assign you other work;
2) Tell your employer that you won't perform the work unless and until the hazard is corrected; and,
3) Remain at the worksite until ordered to leave by your employer.

If you stay within the guidelines and your fat cat attempts retaliation; contact OSHA by calling 1-800-321-6742 and ask to be connected to the closest area office. No form is required to file a discrimination complaint, but you must call OSHA.

If you are challenging orders to work with an unsafe substance, request a list of workers made sick by the substance, the material safety data sheet (MSDS) supplied by the manufacturer, copies of OSHA citations, and any studies by the employer concerning the substance. When necessary, the union may arrange for an outside specialist, such as an industrial hygienist, to conduct an inspection of the workplace. You are entitled to such information through the following decisions: 158. Hercules, Inc. 281 NLRB 961, 124 LRRM 1213 (1986), enforced 833F. 2d426,126 LRRM 3187 (2nd Cir. 1987) 

Under federal law you are entitled to a safe workplace. Your employer must provide a workplace free of known health and safety hazards. If you have concerns, you have the right to speak up about them without fear of retaliation. You also have the right to:
1) Be trained in a language you understand
2) Work on machines that are safe
3) Be provided required safety gear, such as gloves or a harness and lifeline for falls
4) Be protected from toxic chemicals
5) Request and OSHA inspection and speak to the inspector.
6) Report any injury of illness, and get copies for your medical records
7) See copies of the workplace injury and illness log
8) Review records of work-related injuries and illnesses. Get copies of test results done to find hazards in the workplace

The following comes from my University of Massachusetts class notes and is intended to explain what triggers worker rights to refuse unsafe work.

An OSHA regulation allows an employee to refuse unsafe work if the following conditions exist:
1) The employee has a reasonable belief, based on what he or she knows at the time, that there is a real danger of death or serious physical injury.
2) The employee asks the employer to eliminate the danger, but the employer fails to do so.
3) The danger is so urgent that the employee cannot risk waiting until OSHA can conduct an inspection.
4) The employee has no reasonable alternative. The U.S. Department of Transportation has a similar rule for employees in the trucking industry. 

(The NLRA also has a provision allowing employees, in certain situations, to refuse unsafe work. The work must be "abnormally dangerous.")

Keep in mind that OSHA has jurisdiction over private-sector employers regardless of size, except for industries that are regulated by other federal agencies such as mining, railroads, nuclear power and trucking. If you work in one of the listed industries your rights and protections are other than OSHA.

At the risk of being repetitive let's take another walk through the "Obey now, grieve later" response to orders from your fat cat boss. Why so much emphasis on this issue? Because insubordination charges can very quickly lead to DISCHARGE!!!

To have a reasonable shot at avoiding discipline from the precedent of "Obey now, grieve later", one should follow the guidelines below.

1) An employee who disagrees with a work order of work rule normally must obey the order and challenge its legitimacy through the grievance and arbitration procedure or other channels. Failure to do so may constitute insubordination.
2) Employees need NOT immediately obey an order if they;
     a) reasonably believe it to be illegal, unethical or immoral;
     b) reasonably believe that obedience would place the employee or others in imminent danger of harm, or,
     c) would suffer immediate and substantial harm, and would lack any satisfactory remedy after the fact.

Even in these cases, however, disobedience will be excused only if the employee has no other feasible way to resolve the dispute.

Readers interested in researching relevant cases may contact me via the blog and I will be happy to provide examples. Giving them all here would make this post too long, so in closing, please remember the following:

Before the fat cats can sustain a discharge for insubordination, arbitrators generall require that two tests be me: 1) very clear instructions were given by the supervisor to the employee and 2) an even more explicit warning was given of the consequences to the employee if he failed to comply.

There are no methods to discuss refusals to do a job without also looking at such principles as obeying now, grieve later, the principles of insubordination, the Daugherty 7 test of just cause, OSHA and the past precedent set surrounding these issues.

Even with all the past decisions concerning rights to refuse an unsafe work assignment, NO clear-cut lines exist on all examples/incidents that occur. That is why, if you refuse an assignment with a good faith belief that the assignment carries imminent danger, and you try other efforts to correct the situation, and you have made a bad decision because of the lack of facts, precedent says you should not be subject to discipline.

Hope you enjoy the read, and if the job you are about to refuse is at your top shelf employer, or your number one place of employment, be cautious. Refusing work orders in the U.S. workplace without knowledge of your rights carries many dangers.

Solidarity Forever is not just a song lyric--It is the Union way of life.




 


 

 

You and Your Representative

The single most important and valuable asset a union worker has day-in and day-out is the committee person or steward for the district.

A good rep is worth his/her weight in gold. A bad one isn't worth spit. In this, and in my next post as well, we are going to look at why that is and what you and your rep owe each other in respect and in duties.

Please note: I am not going to mince words--even at the risk of offending someone. It is far too important an issue to tip-toe around. So here we go . . . 

Many members think that the zone and chairman, by nature of their job titles, are more important than their district representative. While that may be true during negotiations, it is not on a day-to-day basis. If your district rep does a good job you will likely never have to come in contact with the zone or chair except at union meetings.

Let's begin with what you can do to make your rep the best rep they can be.

1) Call them when you need them. Don't delay.

2) Be completely honest with them. They can't do their job if they don't know the facts.

3) Give them adequate time to answer your questions. They may not always have the answers at their fingertips. An honest rep who says, "I don't know, but I'll find out and get back to you," and who actually does just that, is priceless. One who BS's you or fails to get back is worthless. 

4) Screaming at your rep when you are really angry with something management has done is both a waste of time and a good way to poison your relationship.

5) NEVER speak badly of your rep to management! If you think your rep needs a boot in the ass then do it privately or when they run for re-election. (For that matter never speak badly of a brother or sister to management either) Management is NEVER your friend--even though they might pretend to be. They WILL sell you out if ordered to do so by their higher-ups. 

6) Don't waste your rep's time. If you need time away from the line get a bathroom call or a nurse call. Your rep has 250 or more people to care for. Help them to do that.

7) Demand that they do their jobs! If the only place you can find them is in the work center, the cafeteria or bathroom then they are not a rep--they are simply free-loading. 

8) Never take, "They can do that," for an answer without demanding to be shown WHY "they can do that" in the local, national, or in relevant minutes or a Memorandum of Understanding (MOU's).
     8a) When your rep shows up for a call he/she should have, at an absolute minimum: a) the national agreement; b) the local agreement; c) MOU's and relevant minutes of meetings with management; d) a notepad for recording notes of your meeting and the supervisor; e) a pen, and, f) a grievance pad. If they show up without this minimum--SEND THEM BACK TO GET THEM!

9) Thank them when they try to help. Sometimes being a rep can be a thankless job. I used to tell new reps that, "First you get sworn in--Then you get sworn at." Believe me, they will appreciate your thanks.

Now to what your rep should be doing for you (Reps, this is as much for you as for the member on the floor).

1) Go as soon as you can to answer a call. Don't delay. Even if you think you may be getting an ass-chewing go as quickly as you can. If you don't things can only get worse. (You do have to prioritize calls, but in general take them as you get them--or at least by foreman's area).

2) Be honest with the member. Don't lie! I guarantee that if you lie to a member they will NEVER forget it . . . and they will tell their friends . . . and they should.

3) Get back to them with answers to their questions if you weren't able to answer them at the time of the call. Let them know if it will take longer than a day or two. They will appreciate it.

4) Sometimes when you arrive the member will be upset. Sometimes they will be VERY upset. If so, give them a bit of time to vent. If necessary, adjourn the call to let them calm down. Then listen carefully. Often I discovered that it might be more than just the supervisor or fellow worker that has them upset. A child may be sick or acting out; there may be marital or money problems; they may need to be referred to EAP. If you listen they usually will tell you once they have calmed down. All that said, if you are truly just being abused by a member TELL THEM TO STOP. If they do not adjourn the call and DOCUMENT why you did. 

5) When you show up for a call notify the supervisor why you are there (paragraph 20, National Agreement) and then DO NOT SPEAK WITH THEM ANY FURTHER! If you stand around talking with management you will look like a suck-ass. Go stay with your member and talk with them about other things until relief arrives. Remember this: Management is NEVER your friend. (Sound familiar?)

6) Take the member to a quiet place to discuss their call per Document 5 and paragraph 19 of the National Agreement. Do not discuss their call in front of others--unless you are gathering witness statements.

7) Take notes! Take notes! Take notes! They are vital if a grievance goes to higher steps in the procedure

8) If, after discussion, you determine the member does not have a grievance under the agreements, etc. don't just tell them why--SHOW THEM WHY!
     8a) Sometimes after your discussion the member, or you, may still want to write a grievance or simply give an abusive supervisor an ass-chewing. That is find; but don't BS the member. Tell them the truth and show them why the grievance will eventually fail. A pile of unwinnable grievances doesn't even make decent toilet paper--and neither do you if you are not truthful with the member.

(I will speak more about the relevant paragraphs of the National Agreement in my next post per 9 and 10 below)

9) If the member tells you the supervisor, rather than try and solve their problem or at least explain that he/she doesn't have the authority, simply entered the call--or worse said, "If you don't like it tuff--put in a call," then write a grievance charging them with a violation of paragraphs 5 and 28 of the national agreement. If this is a plant policy, then ask the chairman to charge management with a violation  of paragraph 5a. 
     9a) If the member tells you that, after they had requested a call, the manager continued discussing it or tried to talk them out of the call then write a grievance charging them with a violation of paragraph 29 of the national agreement.

10) Don't write the grievance without first trying to get the foreman told solve the problem. Why? The notes from the discussion could make your grievance a winner further down the line. Take notes of your discussion with the supervisor . . . take notes of your discussion with the supervisor . . . take notes of your discussion with the supervisor . . .you get the idea?

11) If you write a grievance then work at getting the damned thing settled! An open grievance indicates a failure of the union to get justice for the member. If you write a good grievance then see that it moves through the procedure! (paragraphs 30-34, national agreement). When I was commiteeman I never had more than 25 OPEN grievances at any one time. Why? I met with the superintendent EVERY to settle them. EVERY week. If I couldn't settle I moved it through the procedure. And--an added benefit to the member came from this. Once the superintendent realized he looked better than the other supt.'s if he had a low grievance count he worked with me to get things settled. There is nothing a superintendent likes better than to look better than his/her peers.

In my day I never wrote a health & safety grievance. That is the job of the health and safety rep (their job title should give you a hint). But, you do have health and safety responsibilities! You should take regular health and safety walks through your district. If you find a problem notify the superintendent and the health and safety rep. Then, follow up to see that they took care of it.

A final note or two to wrap up: When I was committeeman I walked through as much of my district as I could EVERY day. I would begin at one end on one day and the other end the next. My members knew they would see me unless I was caught up in a DLO or other important meeting. As a result I had far fewer calls than any other committeeman. Why? I solved a lot of problems on my daily walks before they ever got to the grievance stage. Try it. You'll soon see that it works.

Walter Reuther said this about the UAW at the 1970 Constitutional Convention: "Our membership are the strength of the UAW, and the membership and the families of our members, they are the purpose of the UAW. And in the years ahead, this union must remain true to its commitment to the welfare and the well-being of our rank and file. This union is not about Solidarity House; it is not about your local union headquarters; this union is about the men and women that we represent, and behind them their families." We need to compare the present UAW leadership with the ideals expressed in Reuther's quote.

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



     

The Future of our Union

My name is Justin Mayhugh. I am a line worker at the General Motors Fairfax Assembly Plant located in Kansas City, Kansas. We currently build the Chevy Malibu and the Cadillac XT4.

I began working at Fairfax in May of 2011. I have been a member in good standing in the UAW since then. I am what is commonly referred to as an "in-progression" employee, or what was previously known as a tier-two employee. I started off as a flex--meaning that I was a part-time worker, usually working Mondays and Fridays every week. In April of 2012 I was hired on as a full-time permanent employee.

Prior to working at Fairfax, I had little knowledge or interest in unions or the labor movement in general. I grew up in a rather conservative household so my thoughts on unions were shaped mainly from the ideology of my upbringing and whatever propaganda I was fed via Fox News. "Unions are greedy. Unions bankrupt companies. Union workers are entitled and lazy."

Yes, I used to have those thoughts about unions because I didn't know any better at the time.

Luckily for me, life is full of learning experiences, and over the last seven years I have had the opportunity to experience the reality inside the UAW and inside of an auto plant, which has greatly altered my opinion about unions, line work, and just how vitally important the labor movement is in this country.

The last seven years have also afforded me the opportunity to learn the history of our union, which has become somewhat of an obsession for me. I now have a much better understanding of what made the UAW such an effective force at one time, as well as to better understand the factors that changed over the years that brought us to where we are today.

When I was first approached about the prospect of contributing to this blog, I honestly asked myself what I could possibly bring to the table that would be of actual value. Robert Boone. Wray McCalester. Tom Laney. These are all union people who have experienced more within the UAW than I could ever imagine. They are all real union people who have been involved at multiple levels within the UAW, and who have forgotten more knowledge than I will probably ever have the privilege of knowing.

My list of accomplishments within the UAW are much shorter than that of my fellow contributors: I was elected as an alternate delegate by my peers at Local 31, which allowed me to attend the 37th UAW Constitutional Convention this past June. It was an honor to be elected by the membership to attend the convention as one of their representatives.

Earlier this year, I started a website called The Solidarity Review. It was my way of sharing my thoughts about the current state of the UAW on a wider platform rather than just talking about it on the shop floor or going to a monthly union meeting, asking questions, and being given extremely vague answers as to how everything works and why our leadership continues to allow the rank-and-file to lose year-after-year.

Rather quickly, The Solidarity Review seemed to resonate with many of our members. After a while a few other union people from across the country offered to contribute their talents to the site as well.

(Editor's note: I highly recommend you visit The Solidarity Review site by clicking on the tan print above. It is an excellent site and the reason I am happy to have Justin as a contributor here.)

For me, The Solidarity Review is all about questioning the current system utilized by our leadership. It is about being critical of certain aspects such as joint funding and joint programs that the International UAW has partaken in for decades now. It is about questioning our union's failed strategies in regard to organizing non-union auto plants. It is not about pledging blind loyalty to our leadership, which is far too often the "approved" standard within our union.

I also created The Solidarity Review as a way to offer an outlet to share certain aspects of the history of the UAW with the membership that are not often remembered. The saying, 'those who forget the past are  doomed to repeat it," is an old adage that has unfortunately come to fruition in the UAW of today.

When I was campaigning for delegate, often I would have workers ask me why I chose to run for delegate instead of something along the lines of committee person. I have all the respect in the world for anyone who truly fights for the best interests of the membership via the roles of committee person or on the executive boards at their locals. But for me, I realized that I wanted to have a direct way to help effect positive change on a larger scale in regards to the processes we utilize within the UAW, and running for delegate wa a way for me to have an opportunity to make that happen. I documented my experience at the convention and you can read about my experience by clicking on the link in tan.

During my time working on the assembly line at Fairfax, I have often spoken to numerous fellow in-progression workers who have expressed envy towards their traditional worker counterparts. I can--to some degree--sympathize with those feelings. There are no pensions for in-progression workers. In-progressions will receive zero health benefits when they "retire." The "golden handcuffs" that once made being a UAW auto worker one of the most coveted jobs in our country were removed during the bankruptcy bailout. 

I know the feeling of working on the line where every worker around me does have a pension, or was making almost twice the hourly wage as myself. The part that disturbed me most of all was not the particular situation of being a tier-two, but rather that many traditional workers had little interest in making things right again. In fact, on many occasions I experienced resentment directed at me from traditional workers, which I could never quite wrap my head around. I cannot count the number of times I have been told a traditional worker that I should, "just be happy to have a job," or, "you knew the situation when you agreed to work here."

This is obviously not meant to bash all traditional workers. Not by any stretch. For as many traditional workers that I would meet who would look down on me for being a tier-two, there were plenty of others who were adamant that we all needed to work together to make everyone equal once again. Many traditional workers would give me advice on how to survive at Fairfax, or would empathize with the tier-two situation. I always try and think of those workers when looking at the predicament we find ourselves in today.

So, while I can understand the feelings of indignation about being an in-progression or temporary worker in the UAW in 2018, I believe it is vitally important for my fellow UAW members to realize that we must not buy into the ideology of the current system.

The two-tier system is a system fueled by resentment. The success of that system, in management's eyes, is contingent on creating ill-will and pitting worker against worker. That allows management to continue to extract concessions from us as well as keep us divided, and makes us ineffective as a union.

Should we be fighting for equality? Absolutely! 100%! Without a doubt! We cannot survive in the long-term if we continue to buy into this me-first mindset of the two-tier system. Some union members have told me that there is no longer a two tier system, and that the 2015 contract negotiations got rid of it. That is simply NOT true. Until every UAW has a pension, we are not truly equal. Until we fix the broken system that allows companies to exploit "temporary" workers for years on end, we are not truly equal.

It is not acceptable to simply say, "I've got mine, so who cares what happens to the next generation of workers?" In our union we all have a personal choice to make--will we care only about oneself or for the greater good of us all? If we choose the later--and that is the only right course--there is little doubt that the sacrifices will be great. But I do believe it is the only way we can truly turn things around. Whether a traditional worker, an in-progression worker, a temporary worker or a retiree, we are all in this together. We are all sisters and brothers and we would be wise to remember that undeniable fact.

It is up to each of us--the membership of the UAW--to determine what our future will be.

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