Steward’s Right To Free Expression

An important right for stewards is protection against employer retaliation for statements made during the course of grievance meetings. Ordinarily, an employee can be disciplined for disrespect to a supervisor. Disrespect may be insubordination. However, the Board has generally held that a steward cannot be disciplined for abusive remarks made to a supervisor or management officials during a grievance meeting or in a bargaining session. The steward may use profanity or even accuse the employer of lying without fear of discipline. The Board applies this rule so that a steward may speak freely without having to weigh every word said or hold back arguments for fear of stepping over the line.

An important right for stewards is protection against employer retaliation for statements made during the course of grievance meetings. Ordinarily, an employee can be disciplined for disrespect to a supervisor. Disrespect may be insubordination. However, the Board has generally held that a steward cannot be disciplined for abusive remarks made to a supervisor or management officials during a grievance meeting or in a bargaining session. The steward may use profanity or even accuse the employer of lying without fear of discipline. The Board applies this rule so that a steward may speak freely without having to weigh every word said or hold back arguments for fear of stepping over the line.

There are, however, a few exceptions to the steward’s very broad rights. The steward cannot threaten an employer representative with physical violence. Also, a steward may be disciplined in extremely aggravated situations if the steward is disrespectful to the employer in the presence of rank and file employees to the point that an employer is no longer able to exercise proper control over the work force.

Weingarten Rule

The Weingarten rule comes from a 1975 Supreme Court decision. This is the right of a worker to union representation when being questioned by management on a matter that could result in disciplinary action. The worker must ask for such representation; the employer is not required to tell the worker of his or her rights. The worker can request union representation before or at any time during the investigatory interview.

The rule is subject to the following:

  1. The right arises only when the employee requests union representation;
  2. Exercise of the right to union representation may not interfere with “legitimate employer prerogatives” such as the employer’s right to conduct an interview without undue delay;
  3. An employer need not justify its refusal to permit union representation but may go forward with the investigation from other sources;
  4. The employer is under no duty to bargain with the union representative during an investigatory interview and may insist on hearing only the employee’s account of the matter being investigated. The steward may participate in the interview, but can not negotiate the discipline being considered.

Not every discussion with management is an investigatory interview. For instance, a supervisor may speak with an employee about the proper way to do a job. The supervisor may even ask questions. But because the likelihood of discipline is remote, the conversation is not an investigatory interview.

Union’s Right To Information

A union cannot effectively represent its members in contract negotiations if it is denied basic information about the bargaining union. The union has a right to information controlled by management and federal labor law requires employers to supply certain information upon request, in order that the union can bargain intelligently.

The information listed below is a guide for when to request information and what kind of information you can request. For specific questions speak with your local union officers and/or legal counsel.

As a steward, you as a union representative may request information:

· When investigating a grievance.

· When preparing for a grievance meeting.

· When deciding whether to drop a grievance or move it up the ladder.

· When deciding whether to arbitrate a case.

· When preparing for an arbitration.

The employer’s obligation to supply information is extremely broad. However the union’s request must be specific … so no fishing expeditions! Here are examples of information the union may request:

Accident records

Attendance records

Bargaining notes

Company memos

Contracts

Correspondence

Disciplinary records

Equipment specifications

Evaluations

Inspection records

Insurance policies

Interview notes

Job assignment records

Job descriptions

Material records

“Notes to file”

Payroll records

Performance reviews

Personnel files

Photographs

Reports/studies

Salary/bonus records

Security guard records

Seniority lists

Supervisor’s notes

Time study reports

Training manuals

Videotapes

Here are some examples of types of information the union can request from the employer:

  1. Factual Information: Name of subcontractor, date of contract, description of the work, and the amount of the contract. The union is also entitled to a copy of the contract and correspondence with the subcontractor.
  2. Data: In a sex discrimination grievance, the union can require the company to produce a list of women employees promoted in the past, along with names of those denied promotions. When it comes to data, employers are not excused from compliance because of the size of the union’s request.
  3. General Inquiries: “Please supply all documents or records which refer to or reflect the factors causing you to reject this grievance” and “Please supply all factual bases for the company’s decision.”
  4. Disciplinary Grievance: When grieving a warning, suspension, or discharge, request a complete copy of the grievant’s personnel file. You do not want to be surprised if management relies on past offenses. Also, since unequal punishment is usually a potential argument, request information concerning workers discipline for the same offense in previous years. Ask for the names of any workers who committed the offense but were not disciplined, names of witnesses, and notes made by supervisors concerning the offense.
  5. Contract Interpretation Grievance: If the grievance requires interpretation of contract language, the union can request the employer’s notes from the negotiating session that led to the disputed clause, as well as the dates and contents of any conversations with the union upon which the employer is relying.
  6. Past Practice Grievance: If you are grieving management’s failure to adhere to a past practice and management contends that the practice has not been consistently followed, request dates and descriptions of each time the company claims a departure from the practice in question.
  7. Health and Safety Grievance: If you are grieving an unsafe chemical, request a list of workers made sick by the substance, the material safety data sheet (MSDS) supplied by the chemical manufacturer, copies of any OSHA citations, and all studies by the company of the effects of the chemical, including medical examinations of affected employees. Arrange for a union industrial hygienist to conduct a health and safety inspection of the workplace.

The union can make an information request orally; however, it is best to put it in writing. Be as specific as possible in identifying the records or data for which you are looking.

Duty Of Fair Representation

The Duty of Fair Representation is the legal duty of a union to fairly and equally represent every employee in a bargaining unit, whether or not the employee is a union member. The duty of fair representation applies to all employment matters where the union is the exclusive bargaining representative, including grievance processing and contract bargaining. Federal law says that unions that do not represent a worker fairly can be charged with an unfair labor practice (referred to as “ULP”) or sued.

The basis of fair representation is honesty, equal treatment, and good record keeping.

The union must represent workers in the bargaining unit without discrimination, arbitrariness, hostility, bad faith or dishonesty.

Discrimination can occur on the basis of race, sex, national origin, sexual orientation or identity, age or political standing of the grievant. Political discrimination includes not just party politics but whether the grievant has been active politically in the union, e.g., is a failed candidate for union office and on the basis of membership and non-membership in the union.

Arbitrariness can occur if the union sets up some artificial method of selecting grievances for arbitration, e.g., only taking every tenth grievance to arbitration. Or, if the union cannot offer any legitimate reason why it acted as it did in pursuing or withdrawing a grievance.

If a union fails to provide fair representation by using tactics that undermine good faith, it can become embroiled in legal action. A steward acts as the union’s agent and has the responsibility of upholding the union’s duty of fair representation. The steward must listen to grievances without being swayed by personal feelings that may include favoritism or dislike.

Sometimes a steward will make a legitimate mistake while handling a grievance. Reasonable errors of judgment are not violations of law.

When a decision not to file a grievance or to withdraw a grievance is made, however, it must be made honestly based on facts demonstrating that the grievance doesn’t warrant pursuit. The grievant should be thoroughly apprised of the reasons for the withdrawal. A good rule of thumb is to keep all events regarding grievances in writing.

A union breaches its duty of fair representation when, for example, they:

· Process similar grievances differently without a documented reason.

· Fail to explain to the grievant why the union did not appeal or arbitrate their grievance.

· Do not return phone calls.

· Fail to speak to potential witnesses or examining grievant evidence.

The good news is that unions almost never violate their duty of fair representation. The law is very favorable to unions, so let us look at ways the union can avoid being charged with an unfair labor practice.

A union avoids breaching their duty of fair representation when they:

· Service members well.

· Communicate with members.

· Return phone calls promptly.

· Obey time limits for filing and appealing grievances.

· Communicate throughout entire process especially when union decides not to appeal or arbitrate grievances.

· Include members in grievance meetings.

· Document each step with notes or meaningful letters.

The duty of fair representation does not apply to employment matters where the union does not represent bargaining unit members or where members may pursue on their own such as:

· Unemployment Compensation

· Workers Compensation

· Wage and Hour Claims

· Race/Sex/Age Discrimination Claims

The cardinal sin of representation is committed by the steward who, when approached on a serious matter by an employee wanting to file a grievance, says, “Get the hell out of here, I’ve got better things to do than listen to your nonsense.”

http://www.ufcwlocal186d.com/new_page_61.htm

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One thought on “Steward’s Right To Free Expression

  1. Pingback: Disrespect

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