April 2002 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

UNION PROTECTIONS DURING DISCIPLINARY INTERVIEWS

Imagine you have just been called into your supervisor's office to be interviewed about an incident. You don't believe you did anything wrong but you are uncertain why your supervisor is calling you in. Make sure you request a union representative be present for the interview. If your supervisor refuses your request and you are subsequently disciplined, the maximum penalty that can be imposed is a reprimand. See: Section 10-4.3 of the Collective Bargaining Agreement.

Now further imagine that your immediate supervisor has been making life miserable for you and you believe s/he has been making up incidents against you. What do you do?

These allegations formed the basis of a recent arbitration I handled for CSEA. A long term employee who was described at the arbitration as: "an easy going, laid back guy who is quiet and slow" a person "who never bothers anyone even though he is often picked on" was suspended for 20 days on charges that he allegedly assaulting his supervisor and threatening to stab him with a pitchfork.

The employee denied the charges and claimed that his supervisor had ordered him to go out into traffic to pick up a stick and when he said he would go once traffic stopped the supervisor started shoving him in the chest and yelling at him. When the supervisor tried to shove him a third time, the employee raised his hands to defend himself, the supervisor "wrapped both of his hands around the Grievant's hands and that when the Grievant pushed away he couldn't be sure if the supervisor was hit by his or the supervisor's hands." The Grievant and another witness both testified that the supervisor then shouted "You better get a good lawyer" to him.

When the employee returned to his home base a higher level supervisor called him in for an interview and admittedly did not afford him an opportunity to have a Union representative present.

In completely and totally exonerating the employee and ordering the County to purge his file of any reference to the charges, the Arbitrator made important findings regarding the CBA, employee due process rights and credibility. The text of the findings is as follows:

"The language contained in Section 10-4 of the Parties' CBA is clear and because such was admittedly violated by management in the instant case, when the Grievant was not given an opportunity to have a Union representative present during an interview that could and actually did, lead to a disciplinary penalty beyond a reprimand, the only penalty that could still be considered appropriate under the Parties' CBA is a reprimand. However, since the County has been unable to meet its burden of proving that the Grievant is guilty of any of the misconduct charges lodged against him … not even a reprimand can be imposed on the Grievant in the instant case.

The County's position in this case is not supported for the following reasons:

  • The Grievant's testimony was more credible than the supervisor's.
  • The Grievant's testimony was corroborated by another witness, while the supervisor's was not. This is especially applicable to: a) the supervisor pushing the Grievant; b) the supervisor threatening to sue the Grievant; and c) the allegation that the Grievant punched the supervisor.

While the aforementioned are the primary reasons the County was unable to meet its burden of proof there are a number of other factors that certainly did not enhance the County's position and, in fact, create an impression of a cavalier and inappropriate handling of various matters related to the Grievant and this case. These include: first and foremost, the lack of due process in the failure to provide the Grievant with an opportunity for Union representation … references to but no official record of any report related to [a prior incident] … Management's contradictions related to the Grievant's being presented with, signing or accepting various Notices of Personnel Action."

The decision represented a complete vindication for the employee and serves as a guidepost for all Union employees on how your CBA protects you. If you find yourself in a similar situation, remember, contact your Union representative immediately.