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The goal is to ensure and guarantee our grievances
are Arbitration Ready – at Step 2. Information Request
Information is power. This is especially true when it comes to winning grievances in arbitration. The more information you have on how management has violated the contract, or why their excuses for doing so are bogus, the more likely you are to win your grievance. That’s why management tries to keep us in the dark. Some examples of the obstructions: Management takes no action on the union’s request
for Information. Failure of the steward in securing a signature of
management’s representative on the union request form. Improper/Incomplete follow up when the steward does not receive the information. Recommendation
Consider filing an additional grievance on
management’s failure to provide the relevant information.
The grievance and labor charge must contain the following
information:
Under the National Labor Relations Act (NLRA), the union has the right to obtain information from the employer that it needs to process a grievance or to enforce the contract. This can include everything from company memos to personnel files. This duty to provide the union with information is derived from the legal duty the employer has under the NLRA to bargain with the union. You will usually want to use information requests when you are investigating a grievance or preparing for arbitration. But you can also use them before a grievance is filed, to monitor compliance with the contract or decide whether to file a grievance. Under the law, it is the union — not individual members — that has the right to request information from the company. So stewards, business agents and union officers can all file information requests. How to Request Information Information requests should be in writing. Send the original by certified mail, return receipt requested, so you have proof it was mailed and received. Keep a copy for yourself. Start a file for your investigation with your certified mailing receipt and copy of the request as its first contents. Management is required to provide you with documents and information that is necessary for processing grievances or enforcing the contract. They are even required to make a reasonable effort to get relevant information they don’t have in their possession, such as by requesting it from outside your installation. Here are some examples of documents you can request: accident reports, attendance records, company manuals and guidelines, disciplinary records, evaluations, interview notes, investigation reports, memos and correspondence, payroll records, personnel files, time study records, and work rules.
What if Management Refuses? If the union is not in the habit of filing information requests, you can bet the company is not going to be happy when you start. They might flat out refuse, or they might make excuses for why a particular request can’t be filled. If the employer refuses to comply with an information request, the union can file unfair labor practices with the National Labor Relations Board (NLRB). Refusal to provide requested information is a violation of Section 8(a)(5) of the National Labor Relations Act. For filing
an Unfair Labor Practice you must follow the General Counsel’s New
Procedures for Handling Postal Service Information Charges.
The NLRB often “defers” other charges to the arbitration procedure, meaning that it will not rule on the charge while a grievance is pending or possibly even after it is settled. But the NLRB will not defer charges that the employer refused to provide information. The reasoning is that the failure to provide information interferes with the grievance procedure, so it would be inappropriate to defer the charge. Some common management excuses are that the requested information is
“confidential” or too time-consuming to gather, not available, or
just doesn’t exist. Management often claims personnel files and
employee tests and medical records are confidential. But if they are
needed to process a grievance, they must be produced. If they do contain
sensitive information, such as personal medical history, management must
negotiate with the union to turn over the records with the sensitive
information blocked out. STEP 2 – THE INTEGRAL STOP
A smoke screen management uses
regularly - and it does catch us by surprise every time, - is the
Timeliness Issue. Even if
the grievance is filed timely management will use this issue to distract
the arbitrator and provide the arbitrator with a way out from the merits
of the case. We must be prepared to supporting the timeliness issue for each step
of our grievance appeals. Missing a Deadline If you were management, would you give the union a
little slack if they filed an appeal too late – especially on a case
that was going to cost the employer either a lot of money, authority or
embarrassment? No way. If you have to do something within a certain time frame, get it done. It could be filing a document, preparing for a hearing, submitting a brief or filling out a form. It makes no difference. The longer you wait, the greater the chance that you’ll miss the deadline and lose your case. The Timeliness Musts – No Excep The supervisor initials verifying the date of the
step 1. Management’s signature receipt verifying the date
of the step 2 appeal. Certified mail, return receipt requested on all
appeals is the recommendation; this is required on step 3 appeals. Correct mailing address on all grievance appeals. Appeals made to the correct address and the proper
management representatives. The bottom line is you must have the “timeliness” documents available at the time of the hearing to shut down management and show the arbitrator that management is playing games. Many times when preparing for an arbitration hearing we see many careless mistakes. Mistakes that could cause us to lose a hearing or just create additional arguments for management to distract the arbitrator or for the arbitrator to “get away”. Double
check information on appeal forms
Date of step 2 appeal Confirm and verify dates of step 1 and step 1
decision are correct on step 2 appeal confirmation should come from the
step 1 work sheet Proper contractual articles and arguments cited in
the appeal Correct certified receipt number on the grievance
appeal Proper Mailing Certified mail is recommended for all Step 2
appeals but a must on all removals.
Keep the certified stapled inside the case file. Certified mail is required for all step 3 appeals
and step 2 to arbitration appeals. Receipt of these records must be
maintained in a central location where they are easily accessible to the
arbitration team as well as ensuring their security and chain of custody
is maintained. Attached documents to step 2 appeals List documents you are attaching, i.e. labor management meeting minutes, supervisor memos, management directives, union documents and interviews you want contained in the step 2 appeal. (Using this contractual provision will ensure management will not be able to cry surprise or new evidence and block the documents from entering into the record.) This portion of the step 2 form is under utilized and is such a valuable asset to the union case. Postal Inspection Service’s Investigative Memorandum Required Information Cover sheet to Postmaster, Plant Manger Attempt to identify any Editing contained within the IM Watch for editorializing contained within the IM Identify and Note any conclusionary comments of the
inspectors contained in the IM Corrections and Additions Unsupported arguments Recognizable arguments Failure to Cite the Most Compelling Section of the Contract Some people routinely add the words “other
related sections” in the part of the grievance form which asks you to
specify the contract section that was violated.
Later in the grievance process, somebody may figure out that some
other section of the contract provides a stronger argument.
Always check the full contract first.
Talk it over with someone else who knows the agreement.
Cite all the articles that reasonably seem to apply.
But if you can hold open your options (by listing “and other
related sections”) until you are asked to be more specific, you may
buy some time to strengthen your case. However, do not rely solely upon citing every conceivable article in the hope one will “stick”. Too many stewards do this as an all-encompassing crutch and often later raised violated the articles are rejected by arbitrators. Remedies:
Some Hints For Settling Grievances There’s not a steward alive who doesn’t really love winning grievances and really hate losing them. In keeping with the theory that love is always better than hate, here are some hints for winning, with thanks to a checklist developed by the Northern Michigan University Labor Education Program. Depending on the issues, you might be able to consider one or more of these ideas the next time you’re in a grievance meeting.
-David Prosten.
The writer is editor of Steward Update.
With thanks to the Northern Michigan University Labor Education
Program. We may have a good solid case and then we request an inadequate or incomplete remedy. We must devote serious thought and evaluation processes into crafting remedies. Arbitrators have wide latitude in crafting remedies in the arbitral
decision, with the only real limitation being that they may not exceed
the limits of their authority in their award.
We want to plant the seed
in the arbitrator’s mind to achieve the remedy we desire. I found the following remedy very interesting. Arbitrator
Michael D. Gordon, in case E98M-1E-C-00070138, awarded
compensation to the Union in the form of dues that it was deprived of
due to management’s use of casuals in violation of Article 7.
The arbitrator explained the purpose of a remedy on page 25 as: The
remaining remedial issues are especially vexing. A right without a
remedy is an illusion. And, reasonable doubts about appropriate remedial
alternatives should be resolved against the promise breaker. A result of
an effective remedy should protect against incentives for future
violations and return the parties, as nearly as possible, to the status quo
ante Still,
despite the ample sweep of arbitral authority[1][1],
remedies should not be punitive absent the most extraordinary and
compelling circumstances. Due regard also must be accorded. Based
on the above, the arbitrator awarded the union compensation as part of
his remedy. 2.
Pay the Union a sum equal to the monthly dues it would have
received from eighteen FTR members, working at the beginning pay rate,
for the months February 1, 2000, to the end date. If not already, the locals should include as part of the remedy, a demand that the Union also be made whole based on a loss of Union dues during the violations of Article 7 which involve the improper use of casuals.
Remember, clear and concise statement of the case is critical for success. Attention span of an Arbitrator in reading the grievance – and Union’s case – is limited. Should we write page after page after page of contentions, arguments and Collective Bargaining Agreement cites we will turn off the Arbitrator, allow and promote management manufactured confusion and obstruction. You must answer the who, what, where, when, why, how – the “5 W’s” of Journalism and our “6 Success Questions” as quickly – in the very beginning of your grievance – as possible. Easily readable, easily identifiable, easily understandable – we must ensure we meet these mandatory criteria when we state them in our grievances. Otherwise several of managements best friends will
prevail – confusion, diversion and obstruction. Road
map to arbitration
The following are the contractual provisions control the arbitration scheduling. Insert
Article 15 Assignment of arbitrators Letter scheduling arbitrators Selection of Advocates Notifying the Local Local Obligation The local should have an officer or steward who will serve as coordinator and is able to handle arrangement of witnesses and documentation. The individual who will serve in this capacity should have some knowledge of the office and the issue being arbitrated. Notify the grievant who must attendance at the hearing Notified steward must be available in the event
needed for testimony PRE-DISCIPLINARY INTERVIEWS WEINGARTEN
RIGHTS Get the date of the Day in Court (EL-921). If you are the steward present during a day in court process, you must take notes of the meeting. Who was the supervisor who interviewed the
employee? Determine if an interview really occurred? Was the employee
given advanced notice that he faced possible discipline and afforded an
opportunity to defend him/her self? Did the supervisor lead the employee into believing
that this meeting was just a discussion and everything would be OK?
(This happens far too many times.) Did the supervisor conduct some form of
investigation while performing the Day in Court and encourage the
employee to discuss the matter? Did the employee request a union representative be
present during the Day in Court process?
Remember an employee is not entitled to a union representative
during an official discussion. (We
may be able to use the argument that when the employee was denied a
steward that this had all the makings of an official discussion.) ***NOTE***ASK THE GRIEVANT AND SUPERVISOR THE SAME
QUESTIONS. The day in court process is part of the
grievant’s due process right. I
have personally witnessed supervisors who totally abuse the process. The supervisor must conduct a fair and objective
investigation into the alleged offense and the employees must be given
an opportunity to defend themselves.
Did you notice the date on the day in court?
This PRE-DISCIPLINARY INTERVIEW must be prior to requesting
discipline. (Also watch the
date of the request for discipline.)
This Pre-Disciplinary interview falls under the test of Just
Cause; was a fair and objective investigation conducted prior to the
disciplinary action being initiated?
There could not have been a fair and objective investigation into
the matter if the grievant’s account of the incident was not included
in management’s investigation. Management
during this process must try to determine if there was any mitigating
factors involved, and did it have bearing on the grievant’s behavior.
The American Postal Workers Union has been very successful in
arbitration at overturning discipline for the lack of a pre-disciplinary
interview. Always cite in
the grievance papers that management failed to conduct a fair and
objective investigation by failing to conduct a pre-disciplinary
interview. This is
particularly important to raise the issue of pre-disciplinary interview
on the step 2-appeal form. Preliminary interview Final Interviews
Assisting In almost all cases when you are sent to the office, you have the right, commonly known as your Weingarten Right, to union representation (a steward) with you when you meet with management, and you should insist on this right. Weingarten rights derive from the National Labor Relations Act, which covers most Teamsters in the private sector. Many public workers have similar protection, and many Teamster contracts also provide this protection or a stronger form of it. When told to meet with management:
Preparing the Witness/Interviewing
Witnesses For Arbitration Preliminary Interview of Witnesses Of first importance in any case are THE FACTS –
the exact facts and all the facts.
As you prepare, let the witness tell his/her own story. If you shut them off and insist on getting only answers to
specific questions, you may screen out some important point.
You cannot possibly anticipate all the facts in every case. After getting the story, you will then have to ask
questions to sift through the relevant aspects, to emphasize important
features, to fill in gaps, and to help the witness see the outline of
the total case, as you develop it from the facts before you. If the witness can understand your theory of the
case, he/she may tell you facts which otherwise might be inadvertently
overlooked or (consciously and mistakenly) discarded as immaterial. In other words, you must get your witness to give you
assistance, which is valuable because it is intelligent. In questioning the witness you must be a friendly
but nonetheless searching cross-examiner.
It is your task to learn all the bad as well as the good points
of the case – to marshal the evidence intelligently, to prepare
arguments properly, and avoid unpleasant surprises at the hearing.
Advance knowledge may enable you to weaken the effect of your
adversary’s cross-examination by explaining or minimizing unfavorable
facts or to neutralize some of his/her direct evidence by anticipating
it in your direct examination. Witnesses in arbitration can hardly be objective
about their case. Consciously
or otherwise, the good points will be exaggerated, the bad minimized. Self-interest or bias may lead to fabrication or omission.
Infrequently there may even be a deliberate invention of a story,
which has little or no foundation in fact.
Early investigation will save the advocate a great deal of woe in
some cases. In any case, you must find a way to make your
witnesses realize how important it is that they confide in you so that
you will not be faced with any surprise at the hearing.
A fact is much more damaging if it catches you by surprise.
If you know about a damaging fact in advance, you may be able to
explain it and take the sting out of it. Not only must the witness be frank with you; you
must be frank with the witness. Some
advocates assume an optimistic attitude, apparently intended to
encourage the witnesses in the early stages of the case.
There is danger, however, in too much optimism.
An objective recognition of the problems involved in the case is
not only the ethical approach but also, in the long run, the best
insurance against disappointments and dissatisfaction for your witness. Any weaknesses in a case should be discussed candidly so that the witnesses will understand the difficulties. Sometimes this understanding will increase their helpfulness in the preparation of the case. At other times they may be brought to recognize the advisability of a compromise settlement. Furthermore, if the case should go to arbitration and be lost because weaknesses were glossed over, the failure will seem incompatible with any earlier enthusiasm and optimism of the advocate.
Take Good Notes!!
Some advocates fail to take detailed notes. They either make a few cryptic notations, understood only by
themselves, or depend entirely on their memories. This is dangerous and unwise.
No advocate has a memory good enough to guarantee recall of all
the necessary details at the right moment.
Moreover, it is useful to preserve an accurate record of the
facts while they are fresh in the minds of the witnesses.
Then, too, the person who confers on the case at the outset may
not be available later. The
records in the file should, therefore, always be in such condition that
any advocate called into the case on short notice can understand the
case quickly and fully by studying the file. All witnesses should be interviewed as early as
possible. Begin by
asking the witness how he/she happened to know what he/she relates. Find out where the witness came from, where the witness was
going, what the witness was doing at the moment of the occurrence and
exactly where he/she was with respect to what was seen or heard. It is also important to ascertain whether there were any
intervening objects, stationary or moving, so that you may determine
whether the witness could have actually seen or heard what he/she saw or
heard. Sometimes it may be important to obtain a singed
statement from the witness. If
the witnesses prepare a statement in their own handwriting, there is
less likelihood that it will be repudiated.
If it is not in the witness’ handwriting, have the witness sign
a statement that he/she has read each page signed or initialed, and the
facts it reports are true. The importance of obtaining such statements in
certain cases cannot be overemphasized.
Employees may leave or be discharged before the hearing.
They may lose interest, or become hostile. They may be too concerned about a new job to come to the
arbitration hearing willingly. A
friend today may become a foe tomorrow.
A witness who shows interest at the time an event occurs may
sometimes lose interest later. Final preparation for the hearing should include a
review of all documentary evidence in the case, not only those exhibits,
which you intend to offer in evidence, but also those which the opposing
party may offer. The
exhibits should be arranged for ready use at the hearing.
And you will need four copies of each at the hearing:
one for the arbitrator, one for the opposing party, once for the
witness and one for yourself. If there are only a few exhibits, they may be
arranged in a folder in the order in which you expect to use them at the
hearing. Another folder
should hold correspondence and other documents, which you do not intend
to use but for which a need may arise at the hearing.
If they are not too numerous, the simplest arrangement is to keep
these documents in chronological order. It may sometimes be helpful to prepare special exhibits. It may be desirable, for instance, to enlarge photographs. In a case, which involves extensive testimony by accountants based on voluminous records, the advocate should prepare visual aids such as balance sheets, operating statements, comparative statements and summaries.
Final Interview of the Witness
No matter how careful the preliminary preparation,
the thorough advocate will not go to the hearing with final interviews.
The advocate should interview all the witnesses who are
available, to preview the facts to which each will testify on direct
examination, or about which they may be asked on cross-examination. The advocate should also prepare to deal with the
weaknesses of the witness as distinguished from the weakness of the
testimony. Does the witness
have an ulterior motive for testifying?
A friendship with another party?
A bias? What is the
nature of the witness’s position?
Is there any other factor, which may influence the testimony? If the witness has something in his/her background,
which may be subject to attack, the advocate cannot afford to spare the
witness’ feelings in the interview and then subject the witness,
without preparation, to a far less friendly probing at the hearing.
The advocate must go over the facts so that the witness will not,
under the influence of the shock, excitement, or embarrassment during
the hearing, suppress a truth to “protect himself,” and ruin his own
credibility and your chances of success. The advocate must impress upon the witness the importance of telling the truth so that the advocate can make the effect of any attack milder by preparing for it. INSTRUCTIONS FOR WITNESSES Being a witness in an arbitration proceeding is
not a comfortable experience. You
are probably understandably worried about your testimony. You want to leave a favorable impression.
You naturally are concerned that during cross-examination the
opposing advocate will attempt to discredit your testimony, to cause you
to contradict yourself and thereby sound inconsistent and untruthful. It is important to be as comfortable as possible,
to be aware of how arbitral proceedings are conducted, to know what to
expect and how to comport yourself.
Equally as important, you should be able to give your testimony
in a manner that the arbitrator finds understandable and believable. The following should help you. Sit comfortably erect. Try not to slouch, change position frequently, fidget, or
wave your arms about. Your
objective is to appear cool, calm, confident and self-assured. Tell the truth on the witness stand.
You should also tell all of the truth
-- not just some of it, or most of it, but all you know about the
case, good or bad -- to
your advocate when the case is being prepared. Don’t volunteer information.
Answer the opposing advocate’s questions honestly and directly,
but answer only what is asked. If you can answer with a yes or no, do so -- and stop.
If there is something you have left untold which could be helpful
to your case, it is the responsibility of your advocate to bring it out
during re-direct examination. Remember,
you are not on the witness stand to try the case.
You are there only to answer the questions asked of you. Answer all questions asked of you, no matter by
whom, in a courteous and forthright manner.
You will be asked questions by your advocate, the opposing
advocate and possibly by the arbitrator.
Answer them all in the same tone, in the same manner, with the
same demeanor -- honestly,
forthrightly and courteously. Don’t argue with the opposing advocate or the
arbitrator. It is the
job of the other party’s advocate to try to upset you, get you angry
or irritated, attempt to discredit you, and cause you to contradict
yourself. The opposing
advocate may use harsh tactics or an aggressive manner.
Don’t get angry, sarcastic, smart-alecky or in any way
emotional. Be alert and attentive.
If you are in the hearing room during other testimony, pay
attention to what’s going on. If
other evidence reminds you of something relevant you forgot to mention
to your advocate, quietly pass a note telling him/her about it. Watch the arbitrator.
The arbitrator’s body language may communicate an attitude.
Watch when they pick up a pencil to make a note.
Has something significant just happened?
Was it something helpful or damaging to your case?
Don’t patronize the arbitrator.
If you treat the arbitrator in an exceptionally friendly manner
and the other side observes it, the arbitrator may be placed in an
awkward position. The arbitrator may feel the need to compensate for your
manner by demonstrating to the other side that he/she has not been
prejudiced by your actions or words. Consider each question before answering.
Questions should be answered without hesitation, long pauses or
undue reflection. But
don’t let the cross-examiner set the pace for your answers.
Think before you answer. If
you give an answer, which is incorrect or unclear, correct or clarify it
promptly. Don’t be afraid to say, “I don’t know.”
No witness is expected to know all there is to know about any
given subject. If you have
answered other questions asked of you in a straightforward manner, with
specific answers, you will actually enhance your credibility on those
matters when you say “I don’t know” to other questions. Don’t answer a question you don’t
understand. If a
question is ambiguous or unclear to you, ask the questioner to repeat
the question, or rephrase it. Do
this as many times as necessary for you to clearly comprehend the
question. If you answer
without being certain of what is being asked, your interpretations may
differ from that of the arbitrator, who thus may misunderstand your
answer. Don’t deny that you have reviewed your testimony with your advocate. Occasionally the opposing advocate may ask you if you’ve done over your testimony with your advocate prior to the arbitration hearing, implying that this is wrong. Tell the truth. If the answer is yes – rarely will it be otherwise -- say so. The arbitrator will assume that you have, and it will reflect negatively on your credibility if you deny it. Don’t repeat questions before answering
them. This gives the
appearance of stalling or delaying.
Try to answer questions with reasonable promptness to avoid
casting suspicions on your credibility. Don’t mumble; speak clearly. Your testimony is of value only if it is heard and understood by the arbitrator. Keep your hands away from your face. Hold your hands still or fold them comfortably on your lap. Covering your mouth conveys an impression or nervousness, tension or evasiveness, all of which reflect poorly on your credibility. Do not answer a question if your advocate raises an objection. The reasons for your advocate’s objection may not always be very clear to you, but you can be sure it is intended to be in your best interests. If this happens, take a deep breath and relax. Don’t continue testifying until the arbitrator tells you to. Don’t look to your advocate for answers
to a question. The
answers to questions asked of you must come only from you.
If the arbitrator sees you getting signs or nods or head shakes
from someone else, he/she may discredit your testimony. Realize that witnesses may be excluded from the hearing when not testifying. One of the traditional methods of preserving the “purity of testimony” is the rule that excludes, or sequesters, witnesses from the hearing during the testimony of others. When either party invokes it, it is invariably granted. This is to guard against the possibility that one witness may be influenced by what he/she has heard someone else. It also highlights the importance of each witness telling the truth. Realize that the arbitrator may also ask you questions. The arbitrator has the right to ask questions of witnesses to clarify a point, to obtain information additional to that presented, or even to inquire into new areas. Just as in direct and cross-examination, you should be courteous, honest and forthright in the answers you provide. Be prepared for the cross-examiner to use harsh or aggressive tactics. The objectives of cross-examination may be classified into three groups:
Different tactics are used to accomplish different aims. It is not uncommon for the cross-examiner to use an aggressive manner or even harsh tactics. Be calm, cool and self-assured.
The arbitrator is carefully evaluating you, your behavior and
your remarks.
In general, the
steward should follow these guidelines at a hearing:
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