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"We must learn to live together as brothers or we are going to perish together as fools."
| Dr. Martin Luther King Jr. |
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Correction Officer Ocie Jackson |
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Correction Officer Sean Bannerman |
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Correction Officer Earl Morris |
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Correction Officer Roshun Henderson |
Responsible to represent all OCSEA members and Fair-share employees who work during the hours of 2:00pm - 10:00pm.
DISCIPLINE CASES
Discipline is a formal penalty imposed by management. It can include verbal counseling, written reprimands, suspensions without pay, demotions, forced transfers and, finally, termination. Management usually cites one of two reasons for taking disciplinary action: 1) it believes the employee is guilty of misconduct — that is, not following legitimate management orders, rules or policies; or 2) it believes the employee is failing to perform job functions to the standards of the workplace.
First and foremost, stewards must know the procedure for appealing a discipline case. This is found in the contract (or work rules) and very often the process differs from that used for other grievances (e.g., there may be a pre-disciplinary hearing called for in the contract, or you may file discipline grievances not at step 1 but at a higher step).
Management has the burden of proof in discipline cases.
Insubordination
Insubordination is refusing or failing to carry out a direct order. To claim that a worker was insubordinate, management must (1) issue a direct order, and (2) make the worker aware of the consequence of not following the order.
Just Cause
A basic principle in discipline cases is that management must have “just cause” to impose the discipline. Arbitrators’ decisions over the years have resulted in a kind of measuring stick — known as the “Seven Tests of Just Cause” — that can be applied to discipline cases. The just cause standard is contained in the following seven questions:
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Was the employee adequately warned of the probable consequences of |
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the employee’s conduct? |
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Was the employer’s rule or order reasonably related to the efficient and |
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safe operation of the job function? |
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Did management investigate before administering the discipline? |
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Was management's investigation fair and objective? |
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Did the investigation produce substantial evidence or proof that the |
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employee was guilty of the offense? |
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Has the employer applied its rules, orders and penalties evenly and |
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without discrimination? |
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Was the amount of discipline reasonably related to the seriousness of |
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the offense and the employee’s past service and record? (Did the “punishment fit the crime?”) |
If the answer to one or more of these questions is “no,” the union can argue that management did not have just cause to take the disciplinary action.
Obey Now, Grieve Later
A general rule that arbitrators apply is that workers are expected to follow management's instructions and directives. If the worker believes the instruction to be unfair or a violation of the contract, he/she can file a grievance at a later time. Arbitrators have customarily held that failure to follow management directions can lead to the employee being disciplined for insubordination.
There are two recognized exceptions to the “obey now, grieve later” principle. Employees may refuse a supervisors order when they believe that following the order would either 1) result in them doing something illegal; or 2) put them in “imminent danger” of their health and safety. Of course, if management takes disciplinary action after such a refusal, the employee then must prove that his/her belief about the unsafe condition was justified.
Progressive Discipline
Discipline is normally viewed as a progressive process, not punishment, especially where the issue is failure to perform the assigned job. This means that for the first offense in a given subject (attendance, for example), the discipline will be mild (e.g., verbal counseling or a reprimand); for subsequent offenses on the same subject the discipline will become progressively more severe (e.g., a short suspension, a longer suspension, termination). The intent of progressive discipline is to provide the employee the opportunity to improve performance or correct unacceptable behavior. If management does not follow progressive discipline, the union may make this failure part of its grievance case.
The major exceptions to the concept of progressive discipline are those instances where an employee’s conduct is so severe or unacceptable that management feels justified in moving immediately to termination (examples would be theft, drug or alcohol use on the job, or threatening to use or using physical violence).
Weingarten Rules
In 1975 a Supreme Court decision gave unionized employees the right to have a steward present during a meeting with management when the employee believes the meeting might lead to disciplinary action. This case, known as the Weingarten decision, applies to workers in the private sector. Most public employees have similar rights but the rules vary from state to state. Check your state's labor laws or your contract for applicable provisions.
Weingarten rules apply when a supervisor is questioning an employee to obtain information that could be used as grounds for discipline. When an employee believes such a meeting may lead to discipline, he/she has the right to request union representation. Following are basic Weingarten rules stemming from the Supreme Court’s decision:
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The employee must request representation before or during the meeting. |
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After an employee makes the request, the supervisor has these choices: |
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grant the request and wait for the union representative’s arrival; |
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deny the request and end the meeting immediately; or give the employee |
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the choice of ending the meeting or continuing without representation. |
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If the supervisor denies the request and continues to ask questions, the |
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employee has a right to refuse to answer. In addition, the supervisor is |
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committing an Unfair Labor Practice. |
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Management is not obligated to inform employees of their Weingarten right. Unlike Miranda rights - where police are required to tell a suspect of his/her right to an attorney, etc. - employees must "ask" for their Weingarten rights. It is a good idea to make a wallet-sized card that can be kept with you. If you find yourself in a meeting that you believe may lead to discipline, you can read or hand the card to the supervisor. |
| Steward Rights in "Weingarten" Meetings |
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