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Discipline and Grievance Manual


Revised 5/1/96
Adopted 8/11/94

TABLE OF CONTENTS

THE ROLE OF THE SUPERVISOR IN A UNION ENVIRONMENT

THE SUPERVISOR AND THE EMPLOYEE

WHY DO EMPLOYEES JOIN UNIONS?

WHAT IS A STEWARD?

THE SUPERVISOR AND STEWARD RELATIONSHIP
Union Business
The Steward as an Employee

COMMON PROBLEMS WITH UNION STEWARDS AND OFFICIALS

UNWRITTEN ASPECTS OF COLLECTIVE BARGAINING AGREEMENTS

Bargaining History
Table Talk
Arbitration Awards and Grievance Settlements

SOME THINGS TO CONSIDER WHEN RESPONDING
TO PAST PRACTICE CLAIMS

DISCIPLINE CHECKLIST

TESTS FOR JUDGING WHETHER "JUST CAUSE" EXISTS
IN DISCIPLINE AND DISCHARGE CASES

INSUBORDINATION

GRIEVANCE CHECKLIST - INSUBORDINATION

ESSENTIALS OF A DISCIPLINARY LETTER

SAMPLE DISCIPLINARY ACTION WRITTEN REPRIMAND
POOR WORK PERFORMANCE - PRODUCTION OF BAD WORK

SAMPLE DISCIPLINARY ACTION WRITTEN REPRIMAND
UNFIT CONDITION FOR WORK

TIPS TO PREVENT GRIEVANCES

SUPERVISOR'S GUIDE TO GRIEVANCE HANDLING

HOW TO HANDLE A GRIEVANCE

THE "WHO, WHAT, WHEN, WHERE, AND WHY" OF GRIEVANCE IDENTIFICATION

GRIEVANCE INVESTIGATION WORK SHEET

SUPERVISOR'S CHECKLIST FOR GRIEVANCE HANDLING

ALTERNATE CHECKLIST FOR HANDLING GRIEVANCES

ESSENTIALS OF A WRITTEN RESPONSE TO A GRIEVANCE

WRITING THE DECISION

GRIEVANCE ANALYZER FOR SUPERVISORS

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THE ROLE OF THE SUPERVISOR IN A UNION ENVIRONMENT

The most critical relationship in a working environment is the one between employees and their immediate supervisor. To the employee, the immediate supervisor becomes the "face" of that jurisdiction's management. The responsibility of being management's representative is critical to successful supervisory interaction with employees. In a union environment, a third party is inserted into this relationship. Members of a workforce represented by a union are called a bargaining unit. Employees can choose to join the union or refrain from joining; nevertheless,
all are subject to the working conditions or agreement agreed to by the jurisdiction and the union.

Although negotiations of these agreements often take months to accomplish, the critical aspect of the process is in the administration of that contract. The supervisor is the key link in a relationship between labor and management. Each supervisor has a responsibility to ensure that the labor agreement is enforced. Many supervisors will likewise be involved in the mandated grievance process. Because of the supervisor's unique characteristic of knowing more about the employee than top management, there are additional burdens placed on supervisors. To the average employee, the supervisor is management. Because of this, a supervisor must understand his/her role and responsibilities in the organization that s/he represents.

Being a supervisor is not an easy task. The supervisor is entrusted with accomplishing the work of his or her unit through the efforts of his employees within that unit. Keeping the employees informed of what their jobs are and how they are to accomplish their tasks are but a small part of the supervisor's overall responsibilities.

The following is a list of typical duties and responsibilities common to many supervisors:

1. Scheduling and planning daily work assignments.
2. Use of materials and equipment related to the task to be accomplished.
3. Improving and maintaining morale.
4. Controlling absenteeism.
5. Assisting workers in training programs.
6. Monitoring the work products of employees.
7. Developing a team approach.
8. Explaining the policies and procedures of the organization.
9. Accident prevention and safety awareness training.
10. Inter-departmental cooperation.
11. Disciplinary responsibilities.
12. Involvement in the hiring of employees.
13. Serving as a communications link.
14. Measuring performance.
15. Motivating employees.
16. Determining personnel needs.
17. Establishing internal procedure.
18. Budget responsibilities.
19. Counseling employees.
20. Assessment of promotional candidates
21. Facilitating problem solving.

The list may seem expansive, but no one said the job and role of a supervisor is easy. Most important is the supervisor's ability to get along with employees. While close personal involvement with employees is frowned upon, the supervisor should be friendly and concerned about the welfare of those that s/he supervises.

When a person is appointed to a supervisory position, s/he must draw a fine line in relationships between himself/herself and their employees. If a supervisor assumes an overly-assertive manner or attempts to make a showing of authority, the employees will laugh at the supervisor. At the same time, the old "buddy-buddy" relationships or close familiarities with fellow workers that the supervisor may have formerly enjoyed are no longer appropriate. Drawing a fine line is one of the most difficult tasks of the supervisor who has come up from the ranks, but it must be done.

The advent of the labor agreement adds a new dimension to the multi-faceted role of the supervisor. The institution of a grievance procedure and the exposure to the union representative, steward, or union official, makes it even more critical for supervisors to understand that to accept the responsibility of a supervisory position means supporting and advocating management's position. The supervisor who cannot support supervisory and
management staff in a policy does a disservice to everyone. This does not mean that supervisors do not have the right to their own opinions. In fact, it is the responsibility of the supervisor to pass opinions on to mid- and upper-management. Since the supervisor has the most contact with the employees, it is usually the supervisor who becomes the target of a "divide and conquer" philosophy expounded by some unions and their stewards. For this reason, good communication skills and understanding the importance of the supervisor's role in your organization is essential to the success of every supervisor.

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THE SUPERVISOR AND THE EMPLOYEE

Often supervisors are frustrated in believing that their actual influence over employees is relatively small in relation to actions of top management in their organization. As the management person most in contact with the employee, the supervisor has probably the greatest amount of influence over the employee's career with the jurisdiction as it relates to advancement, training, economics, communication, appreciation, etc.

If a supervisor looks at Maslow's Hierarchy of Needs from: (1) physiological needs (food, clothing shelter); (2) safety and security; (3) love and belonging; (4) self-esteem; (5) self-actualization; (6) knowing and understanding; (7) aesthetic needs, s/he should realize the parameters of impact that s/he has on an employee's life. Below is a chart that illustrates the supervisor's influence on an employee's needs.

Supervisor impacts an employee's needs by:

1. Evaluations
2. Promotions/Advancement
3. References
4. Training Opportunities
5. Awards
6. Verbal Recognition
7. Concern for Safety
8. Input Gathering Sessions
9. Work Site Concerns
10. Equipment
11. Assignments
12. Job Enhancement

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WHY DO EMPLOYEES JOIN UNIONS?

EMPLOYER ACTIONS
(Real or Perceived)

1. Failed to keep up with job rate and benefit package.
2. Rule by fear.
3. Win/Lose Philosophy of labor relations.
4. Favoritism.
5. Little, if any, personal recognition.
6. Lack of fair and firm discipline.
7. No input into any decision-making.
8. No career advancement available.
9. Little job security.
10. No complaint procedure, no support by employees for complaint procedure.
11. Failure to have personnel policies and benefits in writing.
12. Lack of recognition for length of service.

EMPLOYEE CONCERNS

1. Desire to have needs met-
Economic needs
Personal needs
Social needs

2. Group/peer pressure.

3. Group identity -
Sense of belonging

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WHAT IS A STEWARD?

The use of the term "union steward" is not universal. It is, however, the most common designation given to a representative of the union whose role is to represent employees in a certain work area.

Stewards or union representatives are selected by the union. Some unions elect their stewards while others are appointed by the union officers. No matter how they are selected, the union notifies the University of the employees who are stewards for specific work areas. Some departments, because of their size or geographical location, may have several stewards while other departments may have a steward who is responsible for several departments. Whatever the case, the union internally determines this and notifies the University. The supervisor does not have a role in the selection of the steward.

Stewards are persons who may be responsible to the union for performing many functions. The steward may represent employees in the bargaining unit, recruit new members, serve as a communication link between the union and management, interpret the contract to employees, and represent the union.

Supervisors should bear in mind the steward's role. If a supervisor thinks that a steward is not successfully doing his/her job as a steward, it is not the responsibility of the supervisor to teach the steward. However, if a steward is overstepping the guidelines and agreements stated in the contract, the supervisor is responsible for informing UMD Department of Human Resources.

THE SUPERVISOR AND STEWARD RELATIONSHIP

The supervisor must remember that the steward is a University employee. In theory, although not always in practice, the steward is chosen because he/she is the most competent to represent the employees. Whether or not the supervisor feels that the steward is the best qualified is of no importance whatsoever. It is important, however, that the supervisor accept the steward in good faith. The supervisor must assume that the steward is sincere. It is the University's obligation to give stewards the sincere and careful consideration to which they and the employees they represent are entitled. The supervisor and the steward can develop a good working relationship. If both individuals can recognize their respective roles, understanding can occur. In other words, the steward can be a friend or an enemy. As in any relationship, time and experience will define it. A supervisor who treats a steward fairly will most likely receive fair treatment and respect from the steward.

Union Business

Stewards are permitted to perform certain union activities under certain conditions specified in the collective bargaining agreement. Typically, they may talk to employees about grievances, union membership, or any other union matter as long as both the steward and the employee are on their breaks, or if it is before or after work, or during meal breaks. Additionally, these matters cannot be discussed in work areas where they may disrupt other employees who are at work.

The steward, as a University employee, has a University job to perform and complete. Thus, it is essential that the supervisor follow regulations concerning union business activities. It is appropriate that when any supervisor observes union business occurring, that s/he confirm that the employees are on their breaks, meal breaks, or that it is before or after work hours. If employees or stewards are violating these rules, the supervisor should contact UMD Department of Human Resources and Equal Opportunity.

The Steward as an Employee

It cannot be overemphasized enough that stewards are employees too. Some supervisors may not supervise the steward assigned to their area. In those cases, the supervisor still must inform the UMD Department of Human Resources and Equal Opportunity of any questionable actions. The steward's supervisor has to recognize that the steward and the supervisor have two relationships -- supervisor and employee; and supervisor and steward.

As supervisor and employee, the roles are as with any other supervisor and employee. The employee is a subordinate and although he is afforded all rights and benefits under the contract, he/she must also follow the supervisor's directions. In matters of discipline, performance evaluations, promotions, etc., the employee who is a steward must be treated as any other employee. There can be no favoritism nor punishment towards this individual because of his/her union activities.

As supervisor and steward, the roles dramatically change. The steward is on equal standing with the supervisor and should be treated accordingly. The steward can be an effective link between employees and the supervisor. To repeat again -- whether the steward becomes a link or a barrier is dependent to a large degree on the manner in which the supervisor handles the multitude of situations which do arise. This does not mean that a supervisor must accept as true everything a steward has to say!

It does mean, however, that the supervisor must avoid discrediting the steward by letting him/her know that s/he does not believe what the steward has to say. The supervisor's attitude, basically, should be this: "My orders are to see that the union contract is lived up to fairly, honestly, and impartially. You have a grievance -- let's look into it carefully to see what should be done about it." Remember that the steward might come to the supervisor on matters other than grievances or before a grievance is filed. It is always best for the supervisor to try to solve the problem as early as possible.

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COMMON PROBLEMS WITH UNION STEWARDS AND OFFICIALS

1. Poor training and selection of stewards and/or local union officials.

2. Local officials' clique have personal gripes against jurisdiction and use the "face" of the union to pursue their dissatisfaction.

3. A small select group of insiders are the grievants in an organization. These individuals perpetually attempt to grieve anything they are unhappy about.

4. Union business becomes the primary job and their paid responsibilities become secondary.

5. Because recruitment is such a major concern of the union, grievance filing and processing becomes a way to show dissatisfaction with a jurisdiction and provides a springboard for a recruitment push.

6. Often an approach in protecting employees' rights is the philosophy of "the more grievances processed, the more the chance of finding a 'win'."

7. Union stewards and officials often feel they are special cases above and beyond jurisdiction's rules and regulations.

8. Many local unions feel inadequate to make compromises through the grievance process. Often settlement chances are lost as the union files grievances up through arbitration. If national or international representatives make the determination on going to arbitration, often the local will throw the entire responsibility to them. This is concurrent with some unions' concept that they do not want to tell a member his/her grievance is not worthy of pursuing or is not a grievance for fear of losing a member. Consequently, that union's credibility with management in grievance filing is lost.

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UNWRITTEN ASPECTS OF COLLECTIVE BARGAINING AGREEMENTS

Bargaining History

Refers to the bargaining proposals made by either party; or,

The actual language changes that result from bargaining.

Table Talk

Refers to discussions that occur during bargaining that clarify the meaning of a provision of the contract.

Such discussions do not become formal contract language but they are indicative of the actual agreement struck between the parties.

Past Practice

Refers to an unwritten but customary practice that is observed in the workplace.


These customs can become "attached" to the labor agreement and create continuing obligations for both parties. (See the next pages for detailed explanation.)

Arbitration Awards and Grievance Settlements

Some settlements and arbitration awards can be construed to create a precedent.

Past Practice

The term "past practice" refers to a specific practice or custom that, over time, can become part of the labor agreement. Such practices can be used (1) as the basis of rules that govern subjects which are not specifically addressed by the collective bargaining agreement; or (2) to indicate the proper interpretation of ambiguous contract language.

These practices can create obligations on the part of either union or management to behave in a certain way, regardless of the fact that there is no contract provision which addresses the subject.

Generally, such workplace customs do not become enforceable past practices unless they meet the following conditions:

1. The contract must be silent on the subject in question or the language of the contract must be sufficiently ambiguous, so that no clear meaning can be ascertained.

2. The alleged practice must be a fairly uniform response; consistency is vital because a "mixed" practice is not indicative of a true past practice.

3. The alleged practice must be in response to a recurring situation.

4. The situation in question must recur over a reasonably long period of time. Once or twice is certainly not enough to create a past practice.

5. The alleged practice must be implicitly or explicitly recognized by both parties (union and management) as the proper response to the situation.

The way in which managers and supervisors respond to allegations of past practice can have a tremendous impact on whether or not such claims are considered valid.

It is never safe to simply concede that the situation is indeed a past practice. This can erode important management rights and create obligations where none need exist.

If you are faced with a claim of past practice, you may wish to consider the following methods as potential responses. (See next pages.)

*Deny Everything, Even if it is an Obvious Fact. (Well OK, maybe this is a bit extreme)

-- It is important, however, to register a clear objection to the past practice claim.

-- Openly question whether the situation you have encountered is actually a past practice.

*Treat History as the Enemy.

(Insist that you have been, at best, an unwilling participant in this custom!)

-- The best (serious) response is to inform the union representative: "I do not believe we have a past practice here, but I'll check on the history and let you know what I find."

*Get Professional Help. (Enlist the Human Resources office in your denials!)

-- Human Resources (HR) is the best place to get advice on how to respond.

-- Your Human Resource person will:

* be able to advise you on whether there is any bargaining history that limits (or confirms) the claim of past practice.

* advise you on whether the custom or practice is sufficiently pervasive to constitute a legitimate past practice.

* help you construct a written response that best protects your rights and prerogatives as a manager.

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SOME THINGS TO CONSIDER WHEN RESPONDING TO PAST PRACTICE CLAIMS

Single or relatively isolated incidents will not constitute a past practice.

A custom must be sufficiently long standing to create an obligation.

Managers or supervisors who fail to exercise their rights have not necessarily lost those rights.

Although the best way to preserve management's rights is to exercise them in a responsible way, those rights are not automatically "surrendered" because they are not routinely exercised. In most cases, inherent managerial rights are only limited by specific contract language.

Managers and supervisors are within their rights to protect against the establishment or expansion of past practices.

Indeed, management's silence in the face of a developing past practice has been treated as an indicator of agreement with the practice. Similarly, a union's failure to grieve management's practice has been used to indicate their acceptance.

Managers with questions about their ability to protest a past practice should consult the management rights provision of the labor contract and also obtain advice from UMD Human Resources and Equal Opportunity.

Some contracts contain provisions covering management rights or completeness-of-agreement, also known as zipper clauses. These can be used to restrict or even eliminate risk of past practice claims.

Legitimate past practices cannot be unilaterally eliminated.

Because these practices have become "attached" to the collective bargaining agreement they will continue until the expiration of the labor contract. To eliminate a past practice, one party must notify the other of its intent to discontinue the custom. This is normally done through formal contract negotiations. Opinions are mixed whether simple notification of discontinuance is sufficient. Some arbitrators have held that agreement is required, not mere notification.

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DISCIPLINE CHECKLIST

Oral Warning

Were rules/expectations communicated?
Were rules/expectations understood?
Was employee responsible? If yes,

1. Explain correct behavior/necessary results
2. Explain consequences of repeat violation or unremedied deficiencies
3. Make "unofficial" record
4. Invite/document employee response
5. Inform employee of rievance procedure

Written Warning

Did violation recur or deficiency continue?
Was employee responsible? If yes,

1. Write warning including:
* Nature of violation/deficiency
* Previous oral warnings related to this same violation
* Possible consequences of repeat violation/continued deficiency

2. Inform employee of grievance procedure

Suspension: An employee must be given the opportunity to give his/her version about what happened to the supervisor before the employee is suspended.

Did repeat violation occur?
Was employee responsible? If yes,

1. Write out notice of suspension including:
* Nature of violation
* Previous discipline related to this same violation
* Effective date of suspension
* Return date to work
* Procedure for return to work
* Possible consequences of repeat violation

2. Inform employee of grievance procedure

Discharge: An employee must be given the opportunity to give his/her version of what happened to the supervisor before the employee is discharged.

Did repeat violation occur or deficiency continue?
Was employee responsible? If yes,

1. Write out notice of discharge including:
* Nature of violation/deficiency
* Summarize previous steps of discipline
* Effective date of discharge
* Procedure for termination

2. Inform employee of grievance procedure

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TESTS FOR JUDGING WHETHER "JUST CAUSE" EXISTS IN DISCIPLINE AND
DISCHARGE CASES

This is a quick and simple method to determine if the elements of "just cause" are present in an employee discipline case.

1. Was the employee aware of, or should have been aware of, the rule, order or expected conduct?

2. Was the employee aware of, or should have been aware of, the disciplinary consequences of his behavior, conduct, or performance?

3. Was the employer's rule or managerial order reasonably related to the orderly, efficient, and safe operation of the employer's business?

4. Was management's directive lawful?

5. Did management conduct a fair and objective investigation before disciplining the employee?

6. Was the employee given an opportunity to be heard and explain his/her actions prior to the disciplinary action?

7. Did the investigation produce substantial evidence or proof that the employee was guilty as charged?

8. Taking into consideration the employee's previous work record, was the disciplinary action consistent with that imposed against other employees in similar situations?

9. Was the penalty imposed reasonably related to the seriousness of the offense when viewed along with the employee's work record?

A "yes" response to all of these questions would indicate that the employer is able to meet the test of "just cause" if a disciplinary action is challenged.

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GRIEVANCE CHECKLIST - GENERAL DISCIPLINE
Can Your Discipline Meet These Tests?

1. Substantiate - Did your discipline come from obtaining: Verify sufficient proof or cause?
Investigation well thought out or premature? Was this "the straw that broke the camel's back?"

2. Balance - Did your discipline decision balance all points and facts or did you proceed to state the result and then work backwards to justify it?

3. Remediation - Is your discipline punitive with no punishment remediation components?

4. Timely - Is your discipline timely or is this a surprise to the employee since it is far removed from the dates of the actual incident?

5. Specific - Are you disciplining for specific behavior? Have you made it clear what behavior is desirable or not desirable?

6. Expectations - Have your expectations for behavior and performance been clarified? Have you
shown this with consistency? Has the employee been made aware of this through clear communications?

7. Legitimacy - Is your discipline legitimate for the offense or infraction? Is permissible by contract
rules, etc.? Is it consistent with other discipline to employees for the same offense? Does it conform to laws: local, state and federal?

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INSUBORDINATION

I. WHAT INSUBORDINATION IS

A refusal to carry out an order given by a bona fide supervisor, typically in one of two forms:

A. Willful refusal to carry out a direct order or obey a work rule, with an employee's deliberate intent to disobey the supervisor.

B. Personal altercation between the employee and supervisor over a direct order, usually involving shouting, profane or abusive language, or actual or threatened violence.

II. WHAT INSUBORDINATION IS NOT

A. Merely protesting or grumbling about a supervisor's order unless the protesting goes too far and actually interferes with the completion of work.

B. Using profane language with the supervisor IF "salty" language is the norm for bantering between employees and the supervisor.

C. Failing to respond to the supervisor's inquiries about anything that cannot be documented as necessary to carry out the work.

D. Filing a grievance or talking to UMD Human Resources and Equal Opportunity, or acting as a union steward or grievance representative to present a grievance to the supervisor in that official capacity.

E. Refusing to obey the supervisor's direct order IF to do so would endanger the employee's health or safety.

F. Refusing to obey the supervisor's direct order IF by doing so, an employee would be committing an illegal act or an act considered immoral by most of society.

G. Minor backtalk, UNLESS

  • the employee, instead of executing an order, argues about it and calls the supervisor a name.
  • the employee calls the supervisor a name in front of other employees.
  • the employee calls the supervisor a name privately but afterward brags to other employees about telling off the boss.
  • the employee calls the supervisor a name privately, is warned by the supervisor, but continues to indulge in the name-calling.

III. PREVENTION

Because a certain amount of griping is generally healthy, and since employees are within their rights when they protest and/or file grievances, there can be a fine line between complaint and a level of defiance that could be considered as insubordination. The employee who regularly talks back to the supervisor is building up to insubordination, which the supervisor may prevent by:

A. Picking a time when the employee is relatively calm and unstressed.

B. Taking the employee aside privately.

C. Explaining that the employee's behavior is disrupting and you expect improvement.

D. Warning the employee that you will not permit him or her to disregard you or be disrespectful.

IV. DISCIPLINARY GUIDELINES


© 2014 University of Minnesota Duluth
The University of Minnesota is an equal opportunity educator and employer.
Last modified on 06/05/14 09:33 AM
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