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The Steward's Role at a Hearing
The nature and procedures of disciplinary hearings are governed by law, contracts, and/or procedures.
In general, the steward should follow these guidelines at a hearing:
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, seek a postponement so that you can make a proper investigation. If the meeting is informal, make sure the member has time to talk with you ahead of time or take a recess to get some understanding as to what happened.
2. Prior to the hearing, inform the member who will be present, how the meeting will be conducted and what he/she should expect.
3. Get as much information as you can beforehand. 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 most formal hearings, the process of questioning the company's witness 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 management. 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. At most hearings the steward can take as active a role as he/she sees fit.
7. You can stop the meeting at any time to speak privately with the member.
8. Take notes or bring in a second person to take notes.
9. Do not rely on the supervisor's notes.
10. 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.
11. 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, how management conducted itself through the process, or the just clause section of your contract by appealing through your grievance procedure.
Documenting Discipline:
What the Bosses Do
For those stewards who question why documentation in their grievance work is necessary, I would like to share with you some information which is put out by human resource managers. These are the folks who counsel supervisors how to enforce the infamous rule book our members must live by. This material is from their training.
According to one source, their primary reason for documentation is to avoid lawsuits. By logical extension, in a unionized environment, they use documentation to weaken our challenges in the hearings or the grievance procedure.
1. Outline only the critical facts: Disciplinary memos should have no opinion, only facts which can be verified by documentation and interviews.
2. The 5W's: Just as we use the 5W's for grievance investigation so should supervisors use this form of investigation to assess discipline. Who is involved in the rule violation, when did it occur, what rule was violated, where did it occur, what discipline should be imposed and why is it appropriate?
3. Identify the rule: The clearest case for discipline is a specific rule violation. If the supervisor cannot come up with one and is disciplining on some subjective standard such as "poor judgment" he/she needs to match that charge against what is understood to be an accepted standard of behavior or performance. The less precise the write up; the stronger challenge we have in the grievance procedure.
4. Show that the rules was communicated to the employee: This clearly comes under the topic of just cause. Employees cannot be expected to follow rules if they do not know what they are. Supervisors are told to show how the rule was conveyed to the employee.
5. Bring out the record: Major violations aside (fighting, insubordination, theft), disciplinary action can involve repetitive violations such as lateness, poor work performance or attendance. Managers are counseled to produce the record showing previous related violations including discipline and/or counseling.
The key for union stewards is that the record must be related to the alleged violation and it must be timely. Check the time limits spelled out in the contract. If there is a two year limit, then violations beyond the two year limit should be pulled. Also, we often are presented with an entire work record which the employer then uses to characterize the member as "having a poor work attitude." Don't let this happen.
6. Document the record: Managers should attach any record related to the rule violation to the disciplinary memo. This is important. It is used to justify progressive discipline. Attach copies of the rule violation in itself or incorporate it into the memo.
7. Describe the business reason for enforcing the rule: clarify for all concerned why the rule exists. This is particularly important in a non-union setting when an employee chooses to go to court to challenge discipline.
8. Make clear what are any future expectations: Again this is legal cover so that discipline is not viewed as punitive. The expectation can simply be a restatement of the rule.
9. Show how the employer will help: This goes to the issue of reforming inappropriate behavior and reasonableness on the part of the employer. One management document states: "Judges and juries like to review disciplinary documentation which indicates that an employer is willing to help the employee solve the problem." The memo might mention additional training or more frequent employer evaluation of work performance.
10. Date the document and identify the author: If a supervisor ghost writes the memo for a manager's signature, the manager must be apprised of the content of the document he/she is signing.
11. Get the employee to sign the document: This is to indicate receipt of the memo. It does not mean agreement with the substance of the memo. Refusals to sign must be noted for the record to indicate that the employee was present with the memo.
Our contention is that there are often two sides to a story and we want the record to reflect it. This is the time we should try to get our version of the story on the record. If you can get your version on the same form, fine. But some managers will not allow this. So you should get them to attach a statement to the form or letter. If this is rejected, make a copy of the union statement and file it with the union. It will then be included in the union record if the discipline is grieved.
12. Keep records confidential: Only those managers who need to know should have a copy of the memo.
Advice for the steward: Hold the company to this policy.
By understanding how managers think and why they respond to alleged disciplinary infractions in a specific way, we can be prepared to respond in an appropriate manner.
