ROGELIO (ROY) A. FLORES NATIONAL VICE PRESIDENT AFGE 10TH DISTRICT

ROGELIO (ROY) A. FLORES NATIONAL VICE PRESIDENT AFGE 10TH DISTRICT
STEWARD TRAINING ROGELIO (ROY) A. FLORES NATIONAL VICE PRESIDENT AFGE 10TH DISTRICT

INTRODUCTION

INTRODUCTION INSTRUCTOR PARTICIPANTS INSTRUCTOR
My name is Paul Palacio. I first came to work as a Federal Mediator for FMCS on October 12, I am currently assigned to Miami, Florida. Prior to working for FMCS, I worked for the United States Air Force at Kelly AFB. With both my Air Force time and FMCS time, on June 10 of last month, I completed 34 years of Federal Service. PARTICIPANTS Now let me hear from you. Please state your name. current occupation and/or position with the union or with management whichever may apply to you. FMCS MISSION Promoting the development of sound and stable labor-management relations, Preventing or minimizing work stoppage by assisting labor and management to settling their dispute through mediation, Advocating collective bargaining, mediation and voluntary arbitration as the preferred processes for settling issues between employers and representatives, Developing the art, science and practice of conflict resolutions, And fostering the establishment and maintenance of constructive joint processes to improve labor-management relationships, employment security and organizational effectiveness. LIMITS OF AUTHORITY The FMCS does not have the authority to direct a resolution on either the employer or the union. NEUTRALITY FMCS in neither pro-employer or pro-union. FMCS is pro-collective bargaining. We conduct ourselves so that our customers never doubt our neutrality.

INTRODUCTION AFGE National Representative Paul D. Palacio
Air Force, 6/10/1964 AFGE – NR 11/01/96 FMCS, 10/16/1997 Miami Baton Rouge Houston Retired, 1/3/2007 AFGE NR, 3/5/2007

IN CASE YOU’RE LOOKING FOR ME…
Paul D. Palacio X11

INTRODUCTION PARTICIPANTS Name Current Occupation Previous Training
City, State See Ice Breaker(s)

INTRODUCTION ICE BREAKER(S)
Dinner Guests: If you could invite 3 people to dinner, who would they be? Why would you invite them? Tombstone: What would you like to have on your tombstone? Tell the group something about you that everyone may not know. Activity: Ice Breaker It is important to have some activity that gets all participants to talk. Generally, if people do not talk early in the process, they tend not to join in discussions later on. Activity Set-Up During this training we want to learn more about each other, and this starts by getting to know each other. We are going to do a little exercise that will help us get to know each other as individuals. Facilitating the Activity Highlight similarities in interests across labor and management Encourage individuals to participate Use the activity to begin the process of participation in training Processing the Activity The active participation that you demonstrated in this activity characterizes how we can work together.

MAJOR DUTIES OF A STEWARD

MAJOR DUTIES OF A STEWARD
Organizing all employees in the bargaining unit into the Union. Represent all bargaining unit members in gripes, problems, grievances and adverse action involving EEO, MSPB, OWCP, etc. Advise members of their rights and guide them in any direction with management. Keep members advised of matters of interest.

DUITES OF A STEWARD (CON’T)
Report any and all actions on behalf of local unit to either the chief steward in the case of representation or the president on any other matter concerning the locals for continuity. Must be on the alert and report any infractions of the contract or other rules, laws, or statutes to the president and chief steward. Advise local officers of potential areas where problems may arise and recommend actions. Attend training meeting for shop stewards.

QUALIFICATIONS OF A STEWARD

QUALIFICATIONS OF A STEWARD
Must be a member in good standing. Should promote AFGE policies. Should be able to handle confrontations with management without fear of reprisal.

QUALIFICATIONS OF A STEWARD (CON’T)
Should be able to read directives and interpret them. Should know or familiarize him/herself with problems in areas of different types of work, and the officers or stewards involved in solution of problems for that specific area. Should be willing to work on own time.

PROBLEM SOLVING

PROBLEM SOLVING STEPS Identify the problem. (One sentence)
Get all the facts. (The 5 W’s) What kind of problem is it?

PROBLEM SOLVING STEPS Brainstorm for solutions. (Be creative)
Prioritize solutions (Strategies) What actions will be taken? (List them)

PROBLEM SOLVING MODEL IN ACTION
There are 8 basic steps to using the problem solving model to deal with workplace issues. The steps can be used to involve members of the affected group and to help the Steward decide which strategy to use in looking for a solution.

PROBLEM SOLVING MODEL IN ACTION (con’t)
The steps are: Step 1. Identify the problem. After listening to the employees describe the problem, try to clearly define the matter in one sentence. It may be necessary to repeat this process after going through the other steps. Repeating this step will help to clarify a problem that changes after it is investigated.

Step 2: Get all the facts. (The 5 W’s) 1. Who is involved? Don’t forget to identify the position of the persons involved, such as supervisor or division/section chief. 2. What exactly happened? 3. When did the problem occur? Be particular about the date, shift, week, year, etc.

Where did the problem occur? Again, be as specific as possible. Why did the problem occur? Look at the bargaining history of the matter concerned and any applicable grievance decisions, agency rules or policies involved. Note: Now might be a good time to revisit STEP 1 to see if the problem needs to be redefined.

Step 3. What kind of problem is it? Contract violation? Violation of Federal/District law, rule or regulation? Violation of agency rules of regulations? Past practice violation or change to working conditions?

Step 3. What kind of problem is it? (con’t)
New policy or procedure? Disciplinary or adverse action? Unfair or improper treatment? None of the above?

Problems that do not clearly fit into one of the first seven categories listed still need to be addressed. The effective steward should try to resolve all legitimate employee complaints by involving the workers affected in determining the solution and building the union through problem solving.

A problem can fall under more than one of the categories listed above. After determining what categories the problem fits into, identify the avenues available for resolution and develop a strategy to solve the problem.

Step 4. Brainstorm Solutions.
Discuss the problem with affected employees, other stewards or both. List all possible solutions. Be creative and don’t evaluate or limit possible solutions in this step. Make sure that all members of the group get to express their ideas.

Step 5. Prioritize solutions (strategies).
Rank the possible solutions. 2. List the pro’s and con’s of the highest ranked solutions and discuss them. Select the solutions/strategies. Outline a plan in writing. 5. Set time table for actions.

Step 6. What actions will be taken?
1. Hold an informal meeting with management. Be firm, but reasonable. Approach manager as an equal. Leave manager a way out, save face. Get manager talking, listening. Keep remedy clearly in mind, stay calm, state the case clearly, outline the facts.

Step 6. What actions will be taken? (con’t)
Hold a meeting with affected employees, if appropriate. File a grievance, if appropriate. Remember to pay strict attention to time limits. Take other actions.

WORKSHEET FOR PROBLEM SOLVING
Step 1. Identify the problem. Describe the problem in one sentence.

Step 2. Get all the facts. (The 5 W’s) 1. Who is involved? 2. What exactly happened?

3. When did the problem occur? Be particular about the date, shift, week, year, etc. 4. Where did the problem occur? Again, be as specific as possible.

WORKSHEET FOR PROBLEM SOLVING (CON’T)
5. Why did the problem occur? Look at the bargaining history of the matter concerned and any applicable grievance decisions, agency rules or policies involved.

Step 3. What kind of problem is it? Contract violation? Violation of Federal/District law, rule or regulation? Violation of agency rules of regulations? Past practice violation or change to working conditions?

New policy or procedure? Disciplinary or adverse action? Unfair or improper treatment Unfair? None of the above?

Step 4. Brainstorm solutions. List all possible solutions – don’t evaluate or limit.

Step 5. Prioritize solutions (strategies). Discuss and evaluate solutions. Rank, select solutions, set time table. The top three solutions are: 1. ______________________________________________ 2. ______________________________________________ 3. ______________________________________________

Step 6. What actions will be taken? Action to take Who will take action? Date for completion?

PROBLEM SOLVING SITUATIONS DISCUSSION QUESTIONS Read each situation and answer the questions .
David Jones, a member of AFGE Local 0000 got a two Day suspension for failing to bring a doctor’s slip for five consecutive days of sick leave. David goes to his steward, Nancy Helpful for advice. Nancy takes a copy of the suspension from Davis and tells him, “Don’t worry about it, we’ll get it overturned.” Do you expect that Nancy will have any problems with what she told David? What would you have said to the member?

2. Sam Slip is a “hardcore” non-member of AFGE. He regularly says that the union is a waste of time and money. Sam just got a five day suspension for telling his supervisor to “kiss my …….!” Sam comes to you as his steward for help. What do you do?

You are the steward for a group of clerical employees of AFGE Local 0000. Last week the Agency moved into a new building and several of your coworkers have come to you complaining that they keep getting headaches and watery eyes. In the old office, none of the employees had those complaints.

3. Con’t What appears to be the problem? What kind of problem is it? (Refer to Step 3) What actions should you take to begin to solve this problem?

4. You are the steward in the Supply Division of a Veterans’ Hospital. One of your coworkers brings you a memorandum signed by your division chief saying, in effect, that for the next two months, only emergency annual leave would be approved for employees in the division. You call the union office and are told that the union was not informed of the memo. Every employee in the division has come to you to complain about the new rule.

What appears to be the problem?
PROBLEM SOLVING SITUATIONS DISCUSSION QUESTIONS Read each situation and answer the questions . 4. Con’t What appears to be the problem? What kind of problem is it? (Refer to Step 3) What actions should you take to begin to solve the problem?

5. Your supervisor, Tom Truly, calls you into his office in your capacity as steward. Tom tells you that he wants to change the length of the lunch period for the employees you represent from one hour to one-half hour. During the meeting, he asks you to sign an agreement on the matter since the contract does not address the length of the lunch period.

What kind of problem is it? (Refer to Step 3)
PROBLEM SOLVING SITUATIONS DISCUSSION QUESTIONS Read each situation and answer the questions . 5. Con’t What is the problem? What kind of problem is it? (Refer to Step 3) What actions should you take to begin to solve the problem?

6. As the steward for a group of employees in the Claims Examination office, you find out that the supervisor plans to rearrange the office layout. The changes will affect the location of employees’ work areas and move their break area from a large, comfortable room, to a smaller, windowless space. You meet with the supervisor and tell him/her that he/she will need to negotiate the planned changes.

Con’t The supervisor acknowledges that negotiations will be required but tells you that he/she doesn’t expect the process to be anything but an “argument over the union’s agenda”. He/She goes on to say that it’s common knowledge within management that the employees aren’t concerned about the union’s agenda and don’t take you, as a steward, seriously so he/she will comply with the law but should not be expected to spend a lot of time negotiating the changes.

What kind of problem is it? (Refer to Step 3)
PROBLEM SOLVING SITUATIONS DISCUSSION QUESTIONS Read each situation and answer the questions . Con’t What is the problem? What kind of problem is it? (Refer to Step 3) What should you do to change management thinking?

It is the dead of winter and the heating system in shop stopped working two hours ago. The temperature in the shop has dropped to 45 degrees and your coworkers are getting very cold. The shop supervisor has an office in another building where the heat is working. Your coworkers come to you for help. What is the problem? What kind of problem is it? (Refer to Step 3) What action(s) should you take to begin to solve the problem?

AFGE Local 0000 has a clerical work group of twenty workers. Those employees are located in an isolated corner of the basement in the bargaining unit’s building. Only two of the employees are members of the Local and there is no steward for the group. One of the members comes to you and tells you that the supervisor, Ms. Hardnose, issued a memo stating that the employees would no longer be getting regular breaks. Ms. Hardnose indicated in her memo that employees of the work group would only be allowed to take breaks if their work was all caught up.

Con’t What is the problem? What kind of problem is it? (Refer to Step 3) What action(s) should you take to begin to solve the problem?

RESEARCH

WHAT IS RESEARCH? Gathering reliable, relevant information used
in proving or disproving position or theory.

RESEARCH SOURCES. Contract Law Regulations
Third Party Decisions Past Grievances Agency Guidance Press Releases Correspondence Supervisors Employees Training Union Policies

RESEARCH STRATEGY. 1. Determine your issues
2. Identify associated issues 3. Identify counterpoints 4. Identify sources available 5. Gather information 6. Interpret the information 7. Develop case strategy

USING THE INFORMATION. 1. Justify or prove a point
2. Disprove or undermine a point 3. Develop a defense of a point

GRIEVANCES

WHAT IS A GRIEVANCE? “A grievance is an allegation that a provision or provisions of a labor agreement have been violated.” (Sloan and Witney, 1967, p.197) A broader definition is that a grievance is created whenever an employee feels aggrieved. In reality, only complaints against the company or company management are considered to be grievance. There are three main types of grievance: 1. Violations of Agreement. 2. Violations of safety laws or other legislation. 3. Unjust treatment of a worker.

A GRIEVANCE CAN BE: Any complaint by:
Any employee concerning any matter relating to the employment of the employee. Any labor organization concerning any matter relating to the employment of any employee.

A GRIEVANCE CAN ALSO BE:
Any complaint by: Any employee, labor organization or agency that concerns: The effect or interpretation, or claim of breach, of a Collective Bargaining Agreement (contract, memorandum of understanding), or; Any claimed violation, misinterpretation or misapplication of any law, rule, or regulation affecting conditions of employment.

A GRIEVANCE CAN NOT CONCERN:
Any claimed violation of subchapter III of 5, United States Code (pertaining to prohibited political activities). Retirement, life insurance, or health insurance. Suspension or removal under Section , United States Code (concerning national security).

A GRIEVANCE CAN NOT CONCERN:
Any examination, certification, or appointment. The classification of any position which does not result in the reduction in grade or pay of an employee. Any matter that the union and agency have agreed in their contract to exclude from the grievance procedure.

GRIEVANCE DEFINITION? Contracts define “grievance” in various ways. One agreement might describe a grievance as a dispute between union and management over the interpretation or application of the agreement. Another might define it as any dispute or difference arising between an employee or the union and management.

GRIEVANCE DEFINITION? Which definition would you prefer? Why? Give an example of a complaint that would not be a grievance under either of the above definitions. 2. To decide if you’re dealing with a grievance, look first for a contract violation, then go to the other grounds.

FIVE GROUNDS FOR A GRIEVANCE
1. THE CONTRACT. (Agreement, Memorandum of Understanding, or whatever the contract is called in the particular plant, office, or agency) These are often the easiest grievances to win, especially where the violation is clear-cut and management is not overly belligerent. But two or more contract clauses may be in conflict, the facts may be muddled, management might be obstinate, and any number of other problems might make for difficult sledding ever here. Where the contract is silent on a point, you may be able to grieve on one of the other grounds.

THE LAW There may be a violation of municipal, state, or federal law. Remember that the law always supersedes the contract. If minimum wage provisions of the Fair Labor Standards Act call for $3.35 an hour and the agreement calls for only $3.00, the contracted scale is void. Other laws that might be violated are Taft-Hartlet (management interference with union affairs), the Civil Rights Act, and the Occupational Safety and Health Act (state or federal). Knowledge that management is in violation of the law can be an important lever in the grievance procedure. It can be not only unnecessary, but unwise to file a charge without giving management first shot at correcting the problem.

3. COMPANY OR AGENCY REGULATIONS Management generally can’t violate its own rules to harm one or more workers. A personnel regulation may be over-looked in hiring or firing, or a foreman may have brought liquor into the plant and then fired another worker for the same violation. Uneven enforcement of company or agency regulations, as will as management disregard for its own rules, can provide the grounds for a grievance. Also, rules can be unreasonable or unreasonably vague. In public employment, especially the federal sector, the many sources and volumes of agency and department regulations make it especially likely that management may be violating its own rules.

WORKERS’ RIGHTS. There doesn’t have to be a contract clause covering foreman’s assaults or abuse on employees to make it possible to grieve this kind of violation. Discrimination and workers’ rights cover a broad range of incidents or practices. Discrimination occurs when two people are treated differently under the same conditions, in such a way as to harm or treat unequally one of them. While the word “discrimination” leads many people to think right away of race or sex discrimination, there are many other bases on which individuals may be discriminated against. This includes age, personality, looks, past incidents, experiences, and, as often happens, union activity.

WORKERS’ RIGHTS. Con’t Discrimination is harmful because it violated the rights of the individualism and doubly so because it divides and weakens the union, destroying the solidarity that it needs to deal effectively with management. One of the difficulties is that discrimination complaints are often hard to prove. The word should not be used lightly, as an excuse or as a substitute for other grounds. Nor, on the other hand, should complaints charging discrimination be lightly dismissed.

PAST PRACTICES. Arbitrators will sometimes consider violations of long-standing practices, accepted by union and management, as grounds for ruling in favor of the union. If, for instance, a company has allowed a 15 minute wash-up for years and then suddenly cans a worker for leaving his station 15 minutes before clock-out, the union usually has a strong case. Don’t go out of your way looking for past practice violations. They are tough to win, and any small deviation in the practice may be considered to have broken the pattern. NOTE: In some instances, the union may find it wise to grieve violations of spirit of the agreement, problems where the contract is silent and unilateral changes in working conditions.

YOUR GRIEVANCE PROCEDURE
The Negotiated Grievance Procedure for my local is found at: Article __34____ Sections _1-13_ Pages _36-41_ of the Contract. Remember: A Grievance could be lost if it is not filed within __20___ days from the time the problem occurred.

UNION MANAGEMENT STEP ONE Number of days to file:_____ Number of days to act: _____ Who: ___________________ Who: ___________________ Written: _____ Oral: _____ Written: _____ Oral:_____

UNION MANAGEMENT STEP TWO Number of days to elevate:___ Number of days to act: ___ Who: ___________________ Who: ___________________ Written: _____ Oral: _____ Written: _____ Oral:_____

UNION MANAGEMENT STEP THREE Number of days to elevate:___ Number of days to act: ___ Who: ___________________ Who: ___________________ Written: _____ Oral: _____ Written: _____ Oral:_____

ARBITRATION Number of days to invoke: _______ How to invoke: ______________________________________________________________________________________________________________________________________________________________________________________________

PREPARING FOR FORMAL GRIEVANCE DISCUSSION WITH MANAGEMENT
WORKSHEET List the major points you want to make in your opening presentation. Don’t use full sentences, only memory joggers. ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

PREPARING FOR FORMAL GRIEVANCE DISCUSSION WITH MANAGEMENT
List possible management arguments and your response. MANAGEMENT ARGUMENTS ________________________________________________________________________________________________________________________________________________________________________________________________________________ YOUR RESPONSE ________________________________________________________________________________________________________________________________________________________________________________________________

THE STEWARD’S RELATIONSHIP TO THE CONTRACT
As a steward, you have a special responsibility to the members of your work group. In carrying out that responsibility, the Negotiated Agreement between your local and the employer forms the basis for the labor-management relationship where you work.

CONTRACT PROVISIONS IMPORTANT TO UNDERSTAND While there are many provisions in local contract, some parts of the contract pertain primarily to the functions of local stewards. (Get together with others from your local and in the space below, list some of the more important contract provisions that a steward needs to know about.) ________________________________________________________________________________________________________________________________________________________________________________________________________

UNDERSTANDING THE CONTRACT For the new steward, the contract can be a bit intimidating at first. The new steward may see all the provisions of the contract and wonder how in the world she or he will be able to learn its provisions. What are some ways that the new steward can learn about the contract? ____________________________________________________________________________________________________________________________________________________________________________________________________________________________

THE STEWARD’S ROLE IN HANDLING A GRIEVANCE
STEPS Investigating the grievance. Analyzing the grievance. Preparing for discussion. Write out the grievance.

STEP 1: INVESTIGATING THE GRIEVANCE
Interviewing the grievant: Your job is to listen well to let the grievant express his/her feelings and to ask what has happened. Get all the facts you can from the grievant. Ask the grievant to help you fill out a grievance contact form.

Identify the problem. After listening to the employee describe the problem, try to clearly define the matter in one sentence. It may be necessary to repeat this process later. Repeating this step will help you to clarify a problem that changes after it is investigated.

Get all the facts – The five W’s WHO is involved? Don’t forget to identify the position of the persons involved, such as supervisor or division/section chief. WHAT exactly happened? WHEN did the problem occur? Be particular about the date, shift, week, year, etc. WHERE did the problem occur? Again, be as specific as possible.

Get all the facts – The five W’s WHY did the problem occur? Look at the bargaining history of the matter/concern and any applicable grievance decisions, agency rules, or policies involved. HOW should the injustice be corrected? What remedy are you demanding to return the aggrieved worker to the same condition he/she would have been in, had not the violation occurred. (Be careful not to limit the union to a narrow remedy. Phrases such as “request that the grievant be made whole” are often appropriate.)

Get all the facts – The five W’s NOTE: Now would be good time to revisit Part A above to see if the problem needs to be redefined. Ask the grievant to listen while you recap the story and correct any facts not accurately described. While you work with the grievant, take notes on the W questions using a problem fact sheet.

Get all the facts – The five W’s Follow up: Take time for research. Talk to people who may have witnessed the incident who may verify facts of the grievant’s story. Check the contracts and agency rules, including the grievant’s personnel file (with the grievant), if necessary. Find out if any past practices apply or if other similar cases have been dealt with relating to the grievant’s problem.

STEP 2: ANALYZING THE GRIEVANCE
Determine which type of grievance you are dealing with and the strategy you need to pursue. If it concerns discipline, does the agency have sufficient evidence? If it concerns a contract violation, does the grievance evidence support a conclusion that the contract or other governing rules have been violated?

If you need more information, continue to investigate. Identify possible sources for the information you need.

Sources of information. People…grievant, fellow worker(s), witnesses, management. Company records…payroll, production, attendance, medical record, seniority list, and company rules. Union records…contract, grievance file, memorandum of understanding, etc.

Quality of information. Can it be measured? Is the meaning of the information clear?

STEP 3: PREPARING FOR DISCUSSION.
Take time to prepare for your discussion with management. Develop your arguments for the grievance. Be prepared to respond to management’s arguments. If unsure about past practices or the intent and interpretation of contract provisions, check with other union officers or stewards. Make sure the grievant is prepared for the discussion. Ask the grievant if there is any thing else about the situation that you should know. Explain that you want to be prepared for the meeting and would prefer not to be surprised with new information at the grievance meeting.

STEP 4: WRITE OUT THE GRIEVANCE
Prepare the written portion of the grievance. If your local has a particular grievance form, make sure you use it. If the contract requires a specific grievance format, follow the format and check with the grievant for additional information requested by the forms

Points to use Put only enough information in the grievance so that management understands the basic problem, what violations occurred, and how the problem should be resolved. Leave out the union’s arguments, evidence, and justification for position. That information could be used by management to prepare a better case against the union.

Points to use Don’t limit contract violations. In stating why there is a grievance use the phrase “violates the contract” and cite the specific articles and sections of the contract violated. Then add “and all relevant articles of the contract”. Remember, the grievance states the union’s position not yours or the grievant’s opinions…avoid personal remarks.

Points to use Don’t limit the remedy. If you limit the remedy asked for in the grievance, you might limit the union to something less than full compensation for the grievant. Consult with the grievant. Discuss the written grievance and explain the requested remedy. Get the grievant’s full understanding and agreement.

Points to use Solidarity. If it concerns an appropriate issue, explain the grievance to the work group and be sure they understand your efforts on the issue. Keep the grievant up to date with each action taken. Don’t rely on him/her to come to you. Make sure that the grievant gets a copy of all papers filed on his/her behalf.

Points to use Prepare each case on the assumption that it may go to hearing at Arbitration. Proper preparation and case presentation within the grievance procedure may save the local from having to move to Arbitration.

FORMAL GRIEVANCE WRITING
POINT 1: LIMIT DETAILS TO BASIC INFORMATION. Put only enough information in the grievance so that management understands the basic problem, what violations occurred, and how the problem should be resolved. a. What is the basic problem? b. What violation(s) occurred? c. How should the problem be resolved?

POINT 2: WRITTEN GRIEVANCES TO BE TURNED IN TO MANAGEMENT Leave out the union’s arguments, evidence, and justification for position. That information could be used by management to prepare a better case against the union. Using the practice fact-set, on the lines below, write out the statement of grievance your group decided best fits the facts:

POINT 3: DON’T LIMIT CONTRACT VIOLATIONS. In stating why there is a grievance use the phrase “violates the contract” and cite the specific articles and sections of the contract violated. Then add “and all relevant articles of the contract”. Using the practice fact-set, on the lines below, write out the statement of violation decided by your group to best apply:

POINT 4: AVOID PERSONAL REMARKS Remember, the grievance states the union’s position not yours or the grievant’s opinions…avoid personal remarks. On the lines below, jot down some phrases that might be avoided in communication grievance positions: Some phrases that might be used would be:

POINT 5: DON’T LIMIT THE REMEDY If you limit the remedy asked for in the grievance, you might limit the union to something less than full compensation for the grievant. To make sure that all lawful and possible remedies are not overlooked, use phrases that leave room for those remedies. Some phrases that allow for the widest application of remedies:

POINT 6: CONSULT WITH THE GRIEVANT Discuss the written grievance and explain the requested remedy. Get the grievant’s full understanding and agreement.

POINT 7: SOLIDARITY If it concerns an appropriate issue, explain the grievance to the work group and be sure they understand your efforts on the issue. Some appropriate ways to share information on grievance issues with work group members might be:

POINT 8: FEEDBACK AND MORE FEEDBACK Keep the grievant up to date with each action taken. Don’t rely on him/her to come to you. Make sure that the grievant gets a copy of all papers filed on his/her behalf.

POINT 9: ARBITRATION Prepare each case on the assumption that it may go to hearing at Arbitration. Proper preparation and case presentation within the grievance procedure may save the local from having to move to Arbitration.

CONSIDERATIONS IN MOVING TO ARBITRATION
GRIEVANCES CONSIDERATIONS IN MOVING TO ARBITRATION

Not all cases can be resolved within the grievance procedure. When a grievance moves through the steps of the procedure and remains unresolved, the union has to make a decision about taking the case to hearing at arbitration. In making the decision, there are several factors that a local may consider. The first consideration should always be the merits of the case.

There are other considerations that need to be applied to the decision. Decisions about arbitration are left to the sole Discretion of a local. The decision to arbitrate a grievance is normally made by a committee of the local.

The local should have a formal system for considering which cases should go to hearing at arbitration. The local should document decisions about going to arbitration and employees should be honestly told about the decision of the local.

USES OF FACTS 1. Facts can be held for the information of the union.
2. Facts can be included in the written grievance. 3. Facts can be used in negotiating the Question for discussion: What factors influence which of the three uses a fact will be put to?

THE QUALITY OF INFORMATION INTERPRETING FACTS
1. Can it be measured? 2. Is the meaning of the information clear? Question for discussion: Give examples of information which can and cannot be measured accurately. Would this information have a clear meaning in any grievance?

Can this information be measured accurately
Can this information be measured accurately? Is the meaning of the information clear or must further investigation determine the meaning?

Measuring Information There are many ways of measuring information
Measuring Information There are many ways of measuring information. Distance can be measured in inches, feet, yards, or miles. Time is measured in seconds, minutes, hours, days, or years. These measures are used in many grievances. Others include:

Measuring Information Information: Method of measure Years of service: Years months and days Medical records: Number of reported injuries in past period, hours lost from work, kinds of injuries Absenteeism: Number of days lost

Measuring Information Information:. Method of measure Tardiness:
Measuring Information Information: Method of measure Tardiness: Number of days tardy, number of hours lost from work Production: Amount produced Other jobs held: Job titles, period of time on each job

Measuring Information Information:
Measuring Information Information: Method of measure Education and Training: Years in school, training, programs attended, courses taken Written reprimands: Number, kind of violation Quality of work: Accuracy and quality

Measuring Information In each type of information, the investigator, can produce a number of measurements that can be compared with other cases. For example, a worker who has been absent five days in the past year has fewer absences than someone with seven absences. Every reasonable person who looks at that record will agree that five absences is less than seven absences in a one‑year period.

Measuring Information The same can be said for each kind of information shown. Although a large number of absences may appear on record, no reasons are given. A worker with seven absences may have better reasons than someone with five absences.

Measuring Information With each kind of information listed, you have to know the reasons for each case. You have to know the meaning of most kinds of information.

GRIEVANCES USING WITNESSES

USING WITNESSES Solid witnesses can win grievances. There are
several things to look for in using and evaluating witnesses. 1. Be sure that you fully understand the witness’s story. Go over it with the witness until you do understand. Remember, memory is often selective and five people witnessing the same incident may have five different versions.

USING WITNESSES 2. Be sure that the witness is willing to help you and the grievant all the way through the procedure, if necessary. Make clear that you are depending on the witness to support the case by telling what is known. It is better not to have a witness than to build a case on one who will later back down, due to fear of management or whatever. It often helps to have a witness sign a written statement, but this is not essential.

GRIEVANCE WRITING 12 POINTS ON WRITING THE GRIEVANCE:
1. Know your rights under the contract and elsewhere. Avoid letting the employer tell you how to handle and write your grievances. 2. Ask at the beginning: Is it necessary to write this grievance? In some cases, writing will make the management take the problem more seriously. In others, it might lock them into a “no” attitude where the grievance could otherwise have been resolved with justice to the employee(s). 3. In writing the grievance, don’t go into too much detail. Use the 5 W’s in putting in only enough information to identify the grievance. Check your union’s policy or practice here.

Generally, you want to limit your statement to the bare essentials of what happened. This means omitting personal judgments, the nature of the evidence that the union might use later on, and the detailed justification for the union position. In some cases this information might only be used by management to prepare a better case against a worker.

Con’t Example: Better than… “The grievant, Bill Brown, has been abused and discriminated against by the supervisor, and the union has three witnesses to this treatment, in addition to work assignment records…” Would be… “The management’s actions toward the grievant violate accepted standards of fair and equal treatment and the collective bargaining agreement, including Article VII, Section 2 governing work assignments.”

Your contract citations should be relevant to the violation. Including every conceivable ground might make it appear that the union isn’t really sure whether and why a grievance exists. Don’t appear to be searching for a thin hook on which to hang your case.

Bear in mind, however, that somewhere along the line, either in the written grievance or in the record of grievance meetings, you will normally want to introduce the essential arguments, evidence and grounds for the union’s position. Cases have been thrown out by arbitrators because too much was withheld during the grievance procedure. Don’t plan your strategy around the element of total surprise in the arbitration hearing. It usually boomerangs.

As in number 4 above, cover yourself. In stating the “why” (grounds) for the grievance, don’t limit the union position to a single section of the agreement. Example: Better than… “The foreman’s action violates section 12 of the contract…” Would be…“The foreman’s action in this case violates the collective bargaining agreement, including but not limited to Article V, Section 2.”

Also use “covering language” when stating specifics, especially in cases where technicalities have been used in the past to deny grievances. Example: Better than… “On January 13th, 26th, and February 2nd, the grievant was bypassed in selecting workers for overtime…” Would be better (in cases where there was an error on one of the dates)… “On or about January 13th, etc., etc.”

Grievances have been sold short by poorly phrased remedies. In stating your demand (the requested remedy), don’t ask for anything less than full compensation for the grievant. Better still, use a phrase such as “made whole”. Example: Better than… “The union requests that the grievant be reinstated.” Would be…“The union requests that the grievant be made whole in every way, including full back pay and reinstatement with no loss of seniority.”

Don’t get personal. Remember, you are hopefully stating a union position. Example: Better than... “I demand that the foreman, Jack Joker, stop taking out his frustrations on the people in Department B…” Would be… “The union demands that the management stop the above practice.”

Thoroughly discuss the grievance with the grievant. Explain what you are doing. Explain the requested settlement and get the grievant’s full understanding and agreement. Normally you will want the grievant’s signature on the written grievance submitted to management. And be sure to keep the grievant posted on developments as the grievance progresses (or doesn’t progress).

If you’re new at it, consult with chief stewards, committeemen/women, etc. in writing the grievance. Show the final to them before submitting it. Don’t be a burden, but don’t be afraid to ask for help.

From the very outset try to nail down the employee’s reasons for its action. You might want to consider stating your understanding of their reasons in writing, then submitting this with a statement such as “This is our understanding of your position. If it is in any way incomplete or incorrect, please advise us promptly in writing.”

But remember, this can cut both ways. Otherwise, don’t automatically assume that you are locked into the original phrasing of the written grievance. In most cases there are possibilities for amending the grievance at various steps in the procedure, especially in light of new information.

There are situations where time limits are impending and full information is unavailable where it is necessary to file an incomplete grievance to ensure that it is timely. Don’t manufacture grounds, but don’t overly narrow the possibilities. Use suitable covering language.

REMEMBER, WRITING CONCISELY CAN HELP CLARIFY THINKING.

THE GRIEVANCE FILE Maintains continuity through steward turnovers and officer changes. Enables stewards and leaders to locate “lost” facts. Enables stewards to identify past grievance patterns and settlements. Useful in spotting problems to be introduced in contract negotiations

THE GRIEVANCE FILE Even where informal settlement is reached before a grievance is written, a brief notation should be made for the file. One way to establish a file is to cut up the contract and paste each section on a separate card. Grievances can then be filed under the section they relate to. Additional files can be used for grievances that don’t tie in with the contract directly.

PRACTICE FACT SHEET Exercise
You are the steward for employees working in the machine shop at your activity. One of the employees in the shop comes to see you and is very upset. The employee, Mr. David Niceguy, is a quiet worker who gets along well with others in the shop. David tells you that the shop supervisor, Ms. Jean Mean, has just issued him a written reprimand. He shows you the reprimand and it states that the discipline was for “Failing to return from lunch on January 31st on time.”

PRACTICE FACT SHEET David tells you that on January 31st, he and Mr. True went to lunch together. They returned to the shop area with 5 minutes to spare. While Mr. True went to get his tools, David was called aside by the Foreman, Mr. Frank. Mr. Frank asked David about the special project he was working on. The conversation with Mr. Frank took about 15 minutes and when it was over, David went straight to his work on his project.

PRACTICE FACT SHEET David went on to tell you that he did not think anything more about the day until Ms. Mean called him to her office and gave him the reprimand. He insists that he was not late from lunch and that it would have been impolite to ignore the Foreman. David tells you that Ms. Mean has been acting oddly toward him in recent weeks. He reminds you about the promotion party for Ms. Mean held in the shop and the fact that he missed it.

PRACTICE FACT SHEET When Ms. Mean asked why he wasn’t at her party, he told her that he had other important business and before he could explain, she went back to her office. Since that day, she has not spoken to him except to give him the reprimand. David tells you that he does not deserve the reprimand and wants your help in getting it taken care of. The union contract states that all discipline must be taken for just and sufficient cause.

PROBLEM FACT SHEET STEP 1: INVESTIGATE THE GRIEVANCE.
Identify the problem. Describe the problem in one sentence. ____________________________________________________________________________________________________________________________________

PROBLEM FACT SHEET STEP 1: INVESTIGATE THE GRIEVANCE.
B. Get the facts – the 5 W’s. 1. Who is involved? 2. What exactly happened? 3. When did the problem occur? 4. Where did the problem occur? 5. Why did the problem occur? 6. How should the grievance be remedied?

PROBLEM FACT SHEET STEP 2: ANALYZING THE GRIEVANCE
A. What kind of problem is it? 1. Contract violation? 2. Violation of Federal/District law, rule or regulation? 3.Violation of agency rules or regulation? 4. Past practice violation, change of working condition? 5. New policy or procedure? 6.Disciplinary or adverse action? 7.Unfair or improper treatment? 8. None of the above?

PROBLEM FACT SHEET STEP 2: ANALYZING THE GRIEVANCE
Additional sources of information needed. People. Records.

PROBLEM FACT SHEET STEP 3. PREPARING FOR DISCUSSION. Worksheet
List the major points you want to make in your opening presentation. Don’t use full sentences, only memory joggers. List possible management arguments and your response.

PROBLEM FACT SHEET STEP 3. PREPARING FOR DISCUSSION.
MANAGEMENT ARGUMENTS ________________________________________________________________________________________________________________________________________________________________________________________________________________ YOUR RESPONSE ________________________________________________________________________________________________________________________________________________________________________________________________

PROBLEM FACT SHEET STEP 4. WRITE OUT THE GRIEVANCE
Using the problem fact sheets, on the lines below, write out the statement of grievance that best fits the facts. ____________________________________________________________________________________________________________________________________

Using the problem fact sheets, on the lines below, write out the statement of violation that best fits the facts. ____________________________________________________________________________________________________________________________________

On the lines below, jot down some phrases that may be avoided in communicating grievance positions. (Remember, the grievance states the union’s position, not your or grievant’s opinion.) ________________________________________________________________________________________________________________________________________________________

Some phrases that may be used. ____________________________________________________________________________________________________________________________________

To make sure that all lawful and possible remedies are not overlooked, do not limit the remedy asked for in the grievance. On the lines below, write phrases that allows for the widest application of remedies ________________________________________________________________________________________________________________________________________________________

OUTLINE OF GRIEVANCE PROCESSES
PURPOSE: Processing a grievance. Some grievances will eventually proceed to arbitration. A well-written and researched grievance prepares the case for the next level. A. Cover letter / introduction. The grievance should be well written and addressed to the appropriate official. Summarize results of informal or previous steps of grievance procedure. (Include date of meeting and participants.) Set forth briefly reasons for dissatisfaction with previous results.

Statement of the case. 1. Background of grievant, if applicable a. Years in service, grade, duty, post. b. Disciplinary Record, if any, or any special recognition. c. Recent Supervisory Appraisal, if applicable. d. Union involvement, if applicable, to establish any anti-union hostility

Statement of the case. Sequence of events leading to grievance. Begin with earliest applicable event. Fully explain events – names, dates, places, etc

Statement of the case. 3. Violation(s) of the Collective Bargaining Agreement. - Cite article(s) violated. - How violated. - Describe “past practices” related to article, if applicable. - Provide supporting case law/arbitration decisions.

Statement of the case. 4. Conclusion and remedies. Brief closing remarks. List remedies sought.

REPRESENTING THE “GUILTY” EMPLOYEE
There may be times when you know that an employee asking for representation has done something wrong. Consult with the person beside you and jot down your ideas on how to deal with that situation. ________________________________________________________________________________________________________________________________________

“That employee is wrong and you know it!” Once in awhile, an employee will in fact, be wrong when he/she comes to you for representation. What do you do?

Once, a manager called the union office and complained about the union steward representing an employee that “everyone knew was guilty”. The union steward, in responding to the manager, asked him the following: “Let’s say you got a traffic ticket and knew you were speeding, but didn’t think that you deserved to have your license taken. To see what you could do, you went to your attorney. You told him the story and asked what he/she could do. What would you say to your attorney if he told you that you were wrong, should take your medicine and throw yourself on the mercy of the judge?” The manager thought about it for a moment and never again complained about the union representing an employee.

GRIEVANCE CHECKLIST FOR SHOP STEWARDS
When considering a grievance and how to handle it, the steward should run through the following points. Each one may be critical to your success as a steward

1. GRIEVANT – Do you understand the grievant’s point of view, situation, and the problem that is presented? Is the real problem the one that’s being presented? 2. FACTS – Do you know what facts you’ll have to successfully handle the grievance and where to get them? In some cases obvious facts can be routinely confirmed when approaching the foreman. Example: Steward to foremen, “I understand Wally here was assigned to the grinder for two days last week, is that right, Fred?”

3. BASIS – Why is this a grievance? Can you state the contract clause, law, past practice, or right that is violated? 4. TYPE of grievance – Is it COLLECTIVE or DIVISIVE? Is there more than one issue involved? (Working conditions, safety, and supervision may all be wrapped into one.)

5. PERSONALITY – What do you know about the persons involved in originating the grievance and those that you’ll have to deal with in handling it? What about yourself? Why do these people think, behave and respond like they do? 6. ORIGIN of grievance – Can you make a fair guess as to why the grievance arose? Company policy, personality of worker or foreman, mistake, buck-passing, error in judgment, etc.

7. SOLIDARITY – How does the grievance affect solidarity? How can it be handled so as to increase solidarity? 8. ANTICIPATE – What are the likely responses of the company and others you will be dealing with? What settlement will the grievant accept that will be fair to him/her and the other workers?

9. STRATEGY – Based on the above, your experience with similar situations, and your knowledge of the people involved, what grievance handling strategy does the case seem to call for? If you’re in doubt about this or about other aspects of the case, it might be wise to consult with knowledgeable people. 10. INVOLVE – As you proceed, involve the grievant and the other workers in making decisions as much as possible. This often helps build support for you in handling grievances and solidarity in your entire shop.

11. Get the company answer in writing even when you lose. You may be able to use this later. 12. Be sure to report back to the complaining worker and the shop what happened at each stage of the grievance procedure. They have a right to know…even if the decision is not popular.

SOME PITFALLS TO WATCH FOR:
Letting some workers push you around. A little kidding okay, but take a stand. Remember a representative’s job is not something to be ashamed of. Keep your head up. Becoming a straw boss – don’t run around enforcing management rules. This is the job of the foreman. Some foremen will get you to do this job for them and to the extent that your effectiveness as a steward is destroyed. You learn when and how far to cooperate through experience.

SOME PITFALLS TO WATCH FOR:
Don’t spend all your energy trying to protect the goof-off. Your bargaining power is not unlimited. Some stewards undermine their bargaining power by stretching their own privileges; i.e., taking an hour to get back to the job after they have handled a case. Management observes this, even if they don’t say anything about it. So do the members.

WHY UNIONS LOSE GRIEVANCES
1. Officers, committeemen or stewards often will not admit or are blind to the inevitable interpretation of the contract. 2. Political grievances – Local union factions sometimes push a grievance to win political favor (thinking that a politician never says “NO”). 3. High turnover of officers, committeemen and stewards tends to perpetuate inexperience while the opposite is true with the companies. 4. Local union fails to educate its leadership to learn how to more effectively process grievances.

5. Unions generally advise advancing borderline cases. More frequently this is interpreted to go with “leaning losers”. 6. Members fear reprisals if they push grievances. 7. Officers and members have problems of distinguishing moral indignation from contractual rights. 8. Inability to get the facts related to grievance. Often do not know what facts to get, where to get them or how to get them.

9. Union grievance committees often have little concept of what is adequate preparation for arbitration. 10. Union grievance strategy is more vulnerable to leaks to management. 11. Unions are often unable to gain support for a grievance from their own members. 12. Unions lack the money to match management at every level.

13. Local unions at times deliberately act in a way to lose a grievance often in cases where it involves a non-member or a particularly troublesome member. 14. Local officers figure they can go it alone and refuse the international’s help. 15. Employers are known to bluff the grievance committee out of a good grievance.

16. Unions are basically compassionate and at times willingly fight a member’s cause when there may be no chance of winning. 17. Unions occasionally file grievances that are losers to determine where they stand on the issue. 18. Unions lose or forego good grievances because at times they lack money to process grievances to arbitration.

19.Union stewards forget time limits. 20. Too much time is allowed to elapse between the “event” and the “settlement”. 21. Company is often able to play on the members’ allegiance. Some members and even officers side with management. Managements are known to suggest or outright promise a better job, etc., to weaken unions’ positions. 22. Grievances are poorly written.

GRIEVANCE PROCEDURE: POINTS TO REMEMBER
1. Exhaust each step before advancing to the next. 2. Keep track of time limits – don’t let one slip by. If necessary, remind union representatives at higher steps of impending limits. 3. Educate grievants and others you represent about the procedure. Encourage them to come to you first. 4. Don’t promise what you might not be able to deliver by over-assuring the grievant that the case will be won. You can’t guarantee a win and you might be setting up high expectations that will not be met. 5. Keep the grievant posted on the progress of the grievance. Don’t wait for the grievant to ask what’s happening.

6. Keep written records, including notes on verbal settlements. Inform officers and other leaders of important settlements. 7. Problems that are not grievances can be handled outside of the grievance procedure. You can refer them to the appropriate people or can handle them yourself. 8. Actively enforce the contract. Don’t always wait for someone to grieve a violation. Be on the lookout for practices that might compromise the union’s position. 9. Fair representation demands that every member have equal access to the grievance procedure. Don’t dismiss any complaint out-of-hand. 10. At the same time, develop the ability to say “no” on phony grievances, and convince the member of your reasoning. But be sure of your ground.

11. Make an effort to learn how arbitrators view grievances. This will help you prepare better grievances and avoid arbitration. 12. Look at all the implications of a grievance. It may be that handling a problem through the grievance procedure will boomerang on other members. 13. Remember that the union’s ability to serve all the members is weakened when the various parts of the organization are not coordinated. Communicating with others is essential to solidarity. Leaders and members should know their responsibilities, as well as their rights, in the grievance procedure.

Discipline

DISCIPLINE AND DISCHARGE SOME STANDARDS
Discharge is often referred to as the capital punishment of labor relations. When an employee is fired other parts of his/her life are likely to go haywire. Financial and mental health, family and marriage, and future earning power are all likely to be affected. The general principle is that management must have “just cause” for discharging an employee. What constitutes just cause in a given situation can vary with the employee’s seniority and infraction, with how other employees have been treated for similar violations, and with a host of other circumstances surrounding the particular instance.

DISCIPLINE AND DISCHARGE SOME STANDARDS
Discipline amounts to discharge in the short-run, since it frequently precedes discharge and many of the same standards apply to both. The difference is generally one of degree, although an employee who is terminated would usually feel there is little comparison as far as his/her life is affected. Since discipline often precedes discharge it becomes crucial for members to grieve disciplinary actions when they occur and not allow management to “run up a record” unjustly. It is a regular occurrence for a fired employee to get all the way to arbitration before attempting to do anything about his/her prior disciplinary record. A few quick questions from the management lawyer about whether the previous disciplinary actions were ever grieved usually dispose of that portion of the grievant’s case.

GUIDELINES - WHAT TO LOOK FOR
The following questions should be asked in order to establish whether a discharge is for just cause. The questions reflect standards frequently applied by arbitrators. 1. WAS THE EMPLOYEE WARNED IN ADVANCE? In many cases a rule that has not been enforced in the past cannot be invoked for purposes of discipline or discharge without a clear warning in advance. Likewise a sudden or “surprise” discharge is usually improper except in cases such as major theft, drinking on the job, and assault on a supervisor that subject an employee to immediate discharge.

WHAT ABOUT THE RULES? Is the rule in question reasonably related to the employer’s need for safe and efficient operations? Would a reasonable person be able to understand and obey the rule? Is the rule made known to employees?

WHAT ABOUT THE RULES? Are the rules enforced uniformly and consistently? Or is there evidence of discrimination or harassment? There may be others with similar or worse work records who have not been disciplined for the same “offense”? This can often, though not always, be used to show unequal treatment.

WAS THERE AN INVESTIGATION BEFORE THE DISCIPLINE WAS APPLIED? Was it conducted in a fair and objective manner? Or was it obviously conducted to “prove” guilt, as in “When are you going to stop beating your spouse?” Did the investigation produce substantial evidence of wrongdoing?

DOES THE PUNISHMENT FIT THE “CRIME” AND THE PAST RECORD OF THE EMPLOYEE? If the offense concerns attendance, work performance, or other matters deemed correctable, was progressive or graduated discipline applied? Progressive discipline involves increasing penalties for repeat violations. A typical progression might be a verbal warning followed by a written warning, suspension, then, if the conduct is still repeated, discharge.

ARE THERE EXTENUATING CIRCUMSTANCES BEHIND THE EMPLOYEE’S ACTIONS? Physical or mental conditions sometimes underlie absenteeism, poor work, etc. Serious family problems may cause severe stress. A fight may have been provoked.

IS THERE MANAGEMENT COLLUSION OR SHARED GUILT? Have management personnel violated their own rules or encouraged employees to ignore certain rules? For instance, foremen in production plants have been known to encourage false parts counts. Others have been known to drink on the job, etc.

A NOTE ON DISCRIMNATION
Discrimination can occur for any number of reasons, from sex or race to union activity and personality conflicts. Clear evidence of the motivation is usually difficult to find. Sometimes statistics will point to a discriminatory pattern; one category of workers will be shown to have received unequal treatment or benefits. Or a pattern of job reassignment, discipline, or harassment will emerge following the filing of a grievance against a particular supervisor.

A NOTE ON DISCRIMNATION
Occasionally the motivation will be clear. A supervisor might, in the heat of an argument, state the discriminatory reasons for an action – with witnesses present. In one instance a supervisor wrote a lengthy memo which stated clearly her racial motivation for a particular action. When the union introduced the intercepted memo into a grievance meeting, the management could only blurt out, “Where did you get that?”

DISCIPLINE – GET THE FACTS FOR THESE QUESTIONS
Drinking on the Job or Being Under the Influence: 1. How was the situation discovered? Who are the witnesses? 2. Was the employee proven to be drunk? Was s/he examined by a company doctor? Were there any outward signs that the employee was drunk? 3. If the employee was caught drinking on company property, were others involved? a. What is the enforcement pattern? Was there entrapment? b. Were foremen also drinking? c. Were there any others caught who were not disciplined? d. What type of container was the alleged alcohol in? Is there proof it was alcohol?

AWOL from Plant or Department 1. When did the employee leave and how long was s/he gone? Who are the witnesses involved and what are their versions of what happened? 2. Did the absence cause the job to go uncovered? 3. Is there a reasonable excuse for the absence? 4. Were there previous warnings or disciplinary actions? 5. What is the past practice on such absences? Is actual permission always required? Was permission requested and/or denied? 6. Did the foreman find the employee off the premises? How did s/he confirm the time that the employee was absent?

Theft: 1. When and where did the alleged theft take place? 2. What was stolen? What is its value? 3. Under what circumstances was the employee apprehended? By whom? 4. Red-handed? Was there an admission of guilt? 5. Was the theft for personal use or resale? Have the goods been recovered? Where and how?

Absenteeism: 1. Is there agreement on the days of absence? (Or number and extent of tardiness?) 2. Was there permission, or refusal of permission to be absent? Did the employee notify the company? 3. Were there prior warnings or reprimands, verbal or written? Other previous discipline? Identify the dates and reasons. 4. Were any of the above actions grieved or otherwise protested?

Absenteeism: 5. Does the employee have an excuse? Have you verified it? Is it reasonable? 6. What reasons does management give for its action? Are there any inconsistencies? Are tardies treated the same as absences? 7. What is the past enforcement record in the department? Has it been uniformly applied to all workers? 8. Exactly what is the discipline? How many hours has the employee lost?

Absenteeism: 5. Does the employee have an excuse? Have you verified it? Is it reasonable? 6. What reasons does management give for its action? Are there any inconsistencies? Are tardies treated the same as absences? 7. What is the past enforcement record in the department? Has it been uniformly applied to all workers? 8. Exactly what is the discipline? How many hours has the employee lost

Fighting: 1. When and where did the fight take place? 2. Is there evidence that others were involved? 3. Who were the witnesses? Have you interviewed all of them? 4. How did the fight start – who started it? Was there provocation? Did anyone attempt to avoid it or stop it? 5. What, if any, weapons were used?

Fighting: 6. Were all participants disciplined? How much lost time? When? 7. What were the injuries sustained? Do you have a doctor’s statement or diagnosis? 8. If the fight occurred between an employee and a foreman, was it serious? Was it provoked? Has there been a lawsuit filed? Do you have copies of the investigator’s report? 9. Are there any extenuating circumstances?

Poor Work: 1. Was the employee warned and given an opportunity to improve? 2. How is the quality of work measured? On the basis of the foreman’s judgment, that of other witnesses, or on the basis of measured output? 3. Are there others doing similar work who were not disciplined?

Poor Work: 4. Are there extenuating circumstances such as faulty equipment, physical disability, production foul-ups for which the employee cannot be held accountable? What are the conditions surrounding the job? 5. Was carelessness, laxity, laziness, or other specifiable difficulties involved? Can this be measured or is it an opinion? 6. Did the employee attempt to report any problems affecting his/her ability to do the work? 7. What was the discipline, in hours and dates of lost time?

Insubordination and Job Refusal: 1. What job did the employee allegedly refuse? What were his/her stated reasons? Are there witnesses who recall the specific works used? 2. What were the instructions? Was there a direct order given? Was there an argument with abusive language or threats by either party? 3. What is the background of the incident? Were there any similar incidents in the past?

Insubordination and Job Refusal: 4. Was the disobedience or refusal reasonable? Was the job unsafe or the order unreasonable? Was the employee ordered to work out of classification? 5. Did the employee eventually comply with the order? How long was s/he off the job? 6. Was other work stopped because of the refusal? 7. Was the steward or committee member called in by the worker or the foreman? At what point? What took place?

OVERTIME Questions to Investigate:
1. What is the overtime policy? Where is it stated? (contract, other written agreement, company policy, etc.) 2. Are all the important records available? Is there any question about their accuracy? 3. What are the shifts, departments, and job classifications of the aggrieved and the protested? 4. If overtime is rotated in the department or within the classification, by turn, was the aggrieved passed over? Was the aggrieved made aware of this when it happened? Did s/he protest? 5. Are you dealing with a one shot grievance or is there a practice or pattern involved?

OVERTIME Questions to Investigate
6. Are there any “informal” or side agreements that you need to be aware of? 7. What is the argument of management and/or the aggrieved? 8. What job was the protested employee given? Is it the same as that performed by the aggrieved, or is it work for which s/he is qualified? 9. What settlement will the aggrieved agree to? Would this be fair to all involved? 10. Is a similar situation likely to happen again? If so, is this because of problems with the policy, the rotation agreement? Is it because a foreman or supervisor refuses to abide by the policy? Or is it due to other causes?

1. REMEMBER: Check your facts, even the most obvious ones. Also, attempt to find out whether there is any informal arrangement that somebody doesn’t want to talk about – an arrangement that may be to the convenience of certain foremen or workers, but violates union policy.

2. A solid, well-handled overtime grievance may provide the opportunity to improve the policy to just about everyone’s benefit. It can establish respect for a new steward. And it can be used to initiate discussion directed toward removing informal, discriminatory overtime practices.

3. If allowed to fester, a chronic overtime problem can ruin morale among the workers and can lead to the downfall of the steward. Fair solutions are often hard to come by, but once reached they can make it easier to resolve other problems in a shop.

DOUGLAS FACTORS In its analysis on this issue, the Merit System Protection Board listed twelve factors which it specified were not “exhaustive”, but were those “generally recognized as relevant”. They include, but are not limited to: 1. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical, or inadvertent, or was committed maliciously or for gain, or was frequently repeated. 2. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.

DOUGLAS FACTORS 3. The employee’s past disciplinary record.
4. The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers and dependability. 5. The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisor’s confidence in the employee’s ability to perform assigned duties. 6. The consistency of the penalty with those imposed on other employees for the same or similar offenses in like or similar circumstances

DOUGLAS FACTORS 7. The consistency of the penalty with any applicable agency table of penalties 8. The notoriety of the offense or its impact upon the reputation of the agency. 9. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question. 10. The potential for employee’s rehabilitation.

DOUGLAS FACTORS 11. The mitigating circumstances surrounding the offense such as unusual job tension, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter. 12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. NOTE: Not all of these factors will be pertinent in every case, and frequently in the individual case some of the pertinent factors will weigh in the appellant’s favor while others may not, or may even constitute aggravating circumstances.

OUTLINE OF WRITTEN REPLY TO PROPOSAL OF DISCIPLINE
PURPOSE: An employee against whom discipline or adverse action is proposed has a statutory right to present his/her defense in the form of both a written and oral reply. A well-written and researched reply is extremely important in preparing a thorough record for a case that may proceed to arbitration or MSPB. 1. Introduction A. Date of proposed action. B. List charges. C. State whether request for extension was granted. D. State whether all requested information was received.

Statement of Facts A. Background of Employee i. Years of service, grade, duty post. ii. Disciplinary Record (if any) or any recognition. iii. Recent Supervisory Appraisal (if applicable). iv. Union involvement (if applicable, to establish any anti-union animus). B. Sequence of Events

3. Response to Charges Write detailed factual response to each charge. Highlight facts in dispute (if applicable).

Legal Arguments A. Set forth regulatory or contract violations (if applicable). B. Set forth affirmative defenses (if any). C. Set forth arguments for mitigation (Douglas Factors).

5. Conclusion and Remedy/Relief Brief closing statement. Request restoration (position, days, back pay, benefits).

FEDERAL LABOR RELATIONS AUTHORITY (FLRA) Unfair Labor Practices

FEDERAL LABOR RELATIONS AUTHORITY (FLRA)
The “WHO, WHAT, WHERE AND HOW” of Unfair Labor Practices The Statute creates rights and obligations on the part of unions, management and employees in a workplace represented by a labor union. If either labor or management fail to perform their obligations to each other an unfair labor practice (ULP) charge may be filed. A ULP charge may also be filed if either labor or management interferes with the rights each has been given under the Statute. Employees may also protect their rights under the Statute by filing ULP charges against labor or management.

For example, it is illegal for agency management to threaten or retaliate against employees for seeking union representation or refuse to provide union information necessary for the union to fulfill its representational responsibilities. Similarly, unions may not try to influence management to discipline employees who did not join the union or refuse to represent employees because they are not a union member. Neither an agency nor a union may refuse to bargain with the other in good faith.

Although individuals and agencies may file ULP charges, the vast majority of charges in the federal sector are filed by unions. Historically, approximately 95% of all ULP charges have been filed by unions and less than 5% have been filed by employees and management.

Once a charge has been filed, it is investigated by the FLRA’s Office of the General Counsel (OGC) through the FLRA’s Regional Offices. The Offices use a variety of innovative alternative dispute resolution techniques to resolve the charges, short of litigation. Over the last 10 years, approximately 89% of all ULP charges filed were either withdrawn, dismissed or settled at this stage.

For those charges that are meritorious and have not been resolved at the preliminary stages of the process, the OGC issues a ULP complaint. The case is then prosecuted by the OGC in a trial before the FLRA’s Office of Administrative Law Judges (ALJ), who are appointed by the Authority. On an annual basis, an average of 88% of all cases for which a ULP complaint was issued result in settlement without a hearing.

After the trial, the ALJ decides whether a ULP was committed and issues a written Decision and Recommended Order. An ALJ decision may be appealed to the Authority by any party. If an appeal is not filed with the Authority, the ALJ’s decision becomes final. On appeal, the Authority may affirm, modify or reverse the ALJ’s Decision and Recommended Order in whole or in part. The Authority’s decision may be appealed to the appropriate federal court of appeals.

PROCEDURES FOR FILING UNFAIR LABOR PRACTICE CHARGES
The Federal Labor Relations Authority administers the Federal Service Labor-Management Relations Statute (5 U.S.C et seq.). This Statute prescribes labor management relations, rights and obligations of employees, agencies and labor organizations in the Federal Sector. This office is responsible for investigating and prosecuting unfair labor practice charges filed under the Statute.

The Federal Labor Relations Authority, however, may not investigate an allegation that an unfair labor practice charge had been committed without the filing of an unfair labor practice charge on forms prescribed by the Authority. The following outlines procedures to be used in filing an unfair labor practice charge.

1 If filing a charge against an agency use FLRA Form 22, Charge Against an Agency. 2. If filing a charge against a labor organization use FLRA Form 23, Charge Against a Labor Organization. 3. The charge form must be completed, signed and dated where appropriate and returned to the Dallas Regional Office. A charge can be faxed to the Regional Office. 4. Serve a copy of the charge upon the party against whom the charge is made.

5. Enclose with your charge any documentary evidence in support of your allegations that an unfair labor practice has been committed. It is not necessary that you serve copies of such evidence on the party against whom the charge was filed. Please do not refer to such documentation in the body of the charge form; if such reference occurs the Dallas Regional Office is required to serve copies of such documentation on the Charged Party.

6. Enclose with the charge a list of the names and phone numbers and/or addresses of your witnesses in the case. 7. Charges must be filed within six months of the date of the alleged incident. [See Section 7118(a)(4)(A) of the Statute] 8. Issues which have been previously raised in a negotiated grievance procedure may not also be filed as an unfair labor practice charge. [See Section 7116(d) of the Statute]

GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U. S. C
GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U.S.C. SECTION Charges Against an Agency (CA): (a)(1): Interfere, restrain, coerce (e.g., threatening statements, conduct, failure to recognize union) (a)(2): Discrimination related to union or anti-union activity (a)(3): Unlawful assistance to a union (e.g., favoring one union over another) (a)(4): Discrimination related to participating in FLRA activities

GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U.S.C. SECTION 7116 Charges Against an Agency (CA): (a)(5): Bad faith bargaining Bypass (e.g., dealing with employees individually instead of union) Refusal to recognize union Failure to maintain status quo during an election in which a Union(s) is seeking to represent employees

GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U.S.C. SECTION 7116 Charges Against an Agency (CA): (a)(5): Bad faith bargaining Unilateral change without providing the Union an opportunity to bargain Repudiation of an agreement.

GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U.S.C. SECTION 7116 Charges Against an Agency (CA): (a)(6): Refusal to cooperate with the FSIP or to comply with a FSIP decision. (a)(7): Enforce a rule or regulation which is in conflict with an already existing negotiated agreement.

GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U.S.C. SECTION 7116 Charges Against an Agency (CA): (a)(8): Failure to go to arbitration or comply with an arbitrator’s decision. Failure to process dues, allotments or revocations (1187 or 1188). Failure to notify Union or prevent Union from attending a formal discussion.

GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U.S.C. SECTION 7116 Unfair labor Practice Charges Against an Agency (CA): (a)(8): Failure to respond to an information request, provide the information and/or to respond in a timely manner. Failure to allow Union to be present at an investigatory interview if employee requests. Failure to provide official time for collective bargaining agreement negotiations, FLRA procedures (See Section 7131

GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U.S.C. SECTION 7116 Charges Against the Union (CO): (b)(1): Interfere, restrain or coerce. (b)(2): Cause an agency to discriminate against an employee. (b)(3): Discrimination for purposes of hindering work activity.

GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U.S.C. SECTION 7116 Charges Against the Union (CO): (b)(4): Discrimination based upon membership in the Union. (b)(5): Bad faith bargaining. (b)(6): Refusal to cooperate/comply with FSIP.

GENERAL UNFAIR LABOR PRACTICE CHARGES, 5 U.S.C. SECTION 7116 Charges Against the Union (CO): (b)(7): Strike work stoppage, slowdown, or picketing which interferes with performance of work. (b)(8): Failure to arbitrate or comply with arbitrator’s decision. Breach of the duty of fair representation (of bargaining unit employees). Denies membership in Union to qualified employees.

American Federation of Government Employees AFL-CIO
ULP WORKSHEET PAGE 66 LET’S TAKE A LOOK

THE FOUR MOST COMMON REASONS UNFAIR LABOR PRACTICE CHARGES ARE DISMISSED
1. Timeliness – Statute of Limitations §7118(a)(4)(a) Complaints are not to be issued on charges filed more than 6 months after events giving rise to the charge. Exceptions: Prevented from filing charge by failure of party to perform duty owed or because of concealment which prevented discovery. Best Practice. File immediately, amend later, write broad language in body of charge.

THE FOUR MOST COMMON REASONS UNFAIR LABOR PRACTICE CHARGES ARE DISMISSED
2. Lack of Evidence Burden on charging party to produce: Witnesses Documents Facts that would help case Best Practice Pre-filing interviews with witnesses - use screening board like for grievance. Treat evidence as your responsibility not just FLRA’s.

3. Lack of Knowledge of the Law
THE FOUR MOST COMMON REASONS UNFAIR LABOR PRACTICE CHARGES ARE DISMISSED 3. Lack of Knowledge of the Law Must know the law or at least be able to argue why this is a violation of law. Know the elements of a violation.

Practice may be unfair, but not unfair labor practice.
THE FOUR MOST COMMON REASONS UNFAIR LABOR PRACTICE CHARGES ARE DISMISSED Choose Wrong Forum Practice may be unfair, but not unfair labor practice. File ULP when you should file grievance. Raise EEO issues in ULP Forum

FEDERAL LABOR RELATIONS AUTHORITY (FLRA) Data Requests

A model form for use when requesting information.
Union Request for Information Under Section 7114(b)(4) of the Statute: Date: Date of the information request. ______________________________ Requester: Name of the requesting union. SEE PAGE

Union Request for Information Under Section 7114(b)(4) of the Statute: Date: Date of the information request. ______________________________ Requester: Name of the requesting union. A SAMPLE HYPOTHETICAL REQUEST SEE PAGE

Union Request for Information Under Section 7114(b)(4) of the Statute: Date: Date of the information request. ______________________________ Requester: Name of the requesting union. USING AN IBB APPROACH SEE PAGE

FEDERAL LABOR RELATIONS AUTHORITY (FLRA) WEINGARTEN RULES page 83

WEINGARTEN RULES Rule 1: There must be an investigatory interview.
The employee must either before or during the interview, ask for union representation

WEINGARTEN RULES Rule 2: When the request is made:
The supervisor must either grant the request and delay questioning until a union representative arrives and has a chance to consult privately with the employee; OR Deny the request and end the interview immediately; Give the employee a choice of (1) having the interview without union representation or (2) ending the interview.

WEINGARTEN RULES Rule 3:
If the supervisor refuses to honor the employee’s request and insists on the interview, s/he commits an unfair labor practice and the results of the interview may be set aside by the FLRA if the charge is upheld.

QUESTIONS AND ANSWERS:
“Reasonable Belief” Question: Since an employee only has a right to union representation when s/he has “reasonable belief” that discipline may result from the interview, what is reasonable belief?

“Reasonable Belief” Question: Since an employee only has a right to union representation when s/he has “reasonable belief” that discipline may result from the interview, what is reasonable belief? Answer: The employee must be able to point to objective factors that warrant a fear that discipline may result from the interview.

These factors are: The employee’s prior discipline record The events leading to the interview The location of the interview The company representatives present at the interview The company’s opening words at the interview The crucial issue is what is reasonable in the employee’s mind. It is not decisive that management says it is “certain” that no disciplinary action will result from the meeting or give such assurance to the employee.

“Company Obligations to Inform the Worker of Rights”
Question: Does the company have to notify the worker of his/her right to union representation during the interview?

“Company Obligations to Inform the Worker of Rights”
Question: Does the company have to notify the worker of his/her right to union representation during the interview? Answer: No. Unlike a police interrogation of a suspected criminal (Miranda rights), there is no obligation on the employer’s part to notify workers of their rights. This is the union’s job.

“Rights of Union Steward During Interview”
Question: When the union steward arrives, what rights does s/he have to take part in the interview and advise the workers?

Answer: The steward’s rights include the following: The supervisor must inform the steward of the subject matter of the interview (i.e. “this is a discussion of tardiness, productivity, stealing, etc.).

Answer: The steward’s rights include the following: The steward must be allowed to take the worker aside for a pre-interview conference before questioning begins.

Answer: The steward’s rights include the following: - The steward must be allowed to speak during the interview.

Answer: The steward’s rights include the following: - The steward can request that the supervisor clarify a question so that the worker can understand what’s being asked. However, the steward does not have the right to bargain during the interview or to argue over the purpose of the interview.

Answer: The steward’s rights include the following: After a question is asked, the steward can draw the employee aside to give advice on how to answer.

If any of above rights are denied, the union should file with the FLRA.

FEDERAL LABOR RELATIONS AUTHORITY (FLRA) REQUIREMENT OF FORMALITY page 85

REQUIREMENT OF FORMALITY
Discussion must be formal within meaning of §7114(a)(2)(A) of Statute for there to be an obligation to notify union. (SSA, 10 FLRA Nos. 24, 25, and 36.) Elements of formality: Whether individual holding discussion is first-level supervisor or higher in hierarchy. Presence of other management representatives. Where meetings took place (employee desk or supervisor’s office).

REQUIREMENT OF FORMALITY
Con’t Elements of formality: How long meetings lasted. How meetings were called (spontaneous or formal notice). Formal agenda established. Attendance mandatory. Manner in which meetings conducted (whether notes taken).

FEDERAL LABOR RELATIONS AUTHORITY (FLRA) PAST PRACTICE Page 85

PAST PRACTICE “Consistent conduct, established by
employer action or inaction, over an extended period of time which raises certain expectations so as to be implied in the contract”. Consistent conduct. Over an extended period of time. Understood to exist. Becomes part of contract.

FEDERAL LABOR RELATIONS AUTHORITY (FLRA) Duty of Fair Representation

EXECUTIVE SUMMARY FLRA GENERAL COUNSEL JOSEPH SWERDZEWSKI’S MEMORANDUM TO REGIONAL DIRECTORS ON “THE DUTY OF FAIR REPRESENTATION” SEE PAGE 86

I. THE DUTY OF FAIR REPRESENTATION UNDER THE STATUTE
Question #1: What is the duty of fair representation? The duty of fair representation is the duty that an exclusive representative (the union) owes to employees in an appropriate bargaining unit when the union represents those employees under the Statute.

Question #2: Is “DFR” the same thing? Yes. “DFR” is the common Acronym used to refer to a union’s duty to fairly represent employees in a bargaining unit.

Question #3: Where does this duty come from? Section 7114(a)(1) of the Statute imposes this duty on unions that are exclusive representatives.

Question #4: What is the difference between a member of a bargaining unit and being a union member? A bargaining unit is the grouping of employees that the union represents after a secret ballot election processed under the Authority’s regulations. Whether or not an employee votes for or against a union in that election, or decides not to vote, if the union is elected, the union must represent all employees in the bargaining unit, whether or not they supported the union. The employees in the bargaining unit may decide either to join and become a member of the union and pay dues, or not to become a member of the union which is now the exclusive representative.

Question #5: What are the most common types of situations which raise issues as to whether a union has breached that duty? This often arises when an employee has a dispute with the agency and claims that the exclusive bargaining representative (the union) has failed to properly represent the employee in the dispute. These types of issues normally involve individual employee concerns which adversely affect an employee, rather than the institutional concerns that arise in bargaining disputes, and are often accompanied by strong positions and personal emotions

Question #6: What is another type of common dispute which raises a DFR question? Duty of fair representation issues also can involve situations where non-union unit employees claim that they are being treated differently from union members by the manner in which the union administers a provision of a collective bargaining agreement or some other condition of employment over which the union has exclusive control.

Question #7: On what principle does the duty of fair representation rest? The duty of fair representation is grounded in the principle that when a union attains the status of exclusive representative, it must use that power to fairly and equally represent all bargaining unit employees in the bargaining unit.

Question #8: What are the legal tests to determine if a union has violated its DFR? There are two basic legal tests to determine if there has been a DFR violation. One test concerns situations where a non-member is unlawfully treated differently from a member. The other test involves situations where the union has not properly represented an employee.

Question #9: What is the test with respect to different treatment based on union membership? Basically, an exclusive representative may not treat non-union unit employees differently from dues paying union members in matters over which the union has exclusive control and where the non-members had no other choice for representation other than the union.

Question #10: Does this mean that a union must treat members and non-members the same in all matters? No. Non-members must be treated the same as members only in matters which are within the union’s scope of responsibility because it is the exclusive representative, and over which the employee may not seek representation from another source, such a private attorney.

Question #11: What is an example where the union may treat members better than non-members? A union may provide representation to members before the Merit Systems Protection Board (MSPB) and refuse to provide that same benefit to non-members because employees may select a private representative in that third party proceeding.

Question #12: What is the legal test to determine if a union did not properly represent an employee and thus violated its DFR? This aspect of the duty of fair representation usually concerns a situation where either a union member or a non-member in the bargaining unit claims that the union was ineffective. The legal test is whether the union acted in an arbitrary manner and/or in bad faith. That is to say, the union’s conduct must amount to more than mere negligence or ineptitude, but rather must have been outside the range of reasonableness, and must have constituted a deliberate and unjustified treatment of a unit employee different from other unit employees.

Question #13: Does this mean that every time a union makes a mistake when representing an employee in the bargaining unit it has violated its duty of fair representation? No. A union is given latitude to make good faith mistakes when representing an employee. Mere negligence and ineptitude by a union does not, standing alone, violate its DFR. Not all mistakes rise to the level of deliberate and unjustifiable arbitrary and bad faith conduct.

Question #14: What types of factors are examined when deciding if a union has violated this DFR? Some factors to be considered are whether the union can rationally explain its conduct, whether the situation left the employee with no venue to obtain a hearing/remedy for the underlying dispute, and whether the union followed or deviated from its past practices in the manner in which it processed the dispute and dealt with the employee.

Question #15: If a union decides to represent an employee in a matter concerning a condition of employment where it did not have to represent that employee (for example, before the MSPB), but the union’s conduct in performing that service is arbitrary and in bad faith, has the union violated its DFR? The General Counsel has decided that this particular area of the law needs clarification. Thus, s/he has instructed the Regional Directors to submit this issue to his/her office for case handling advice should it arise in an unfair labor practice charge.

II. REMEDIES FOR DUTY OF FAIR REPRESENTATION VIOLATIONS
Question #1: What objectives should a remedy for a DFR violation satisfy? Like all unfair labor practice remedies, a DFR violation should recreate the conditions and relationships that would have been had there been no unfair labor practice, effectuate the policies of the Statute, contribute to the deterrence of future violative conduct, and not be contrary to law or public policy.

Question #2: What is the most common remedy that the General Counsel will seek for a DFR violation? Unless the DFR violation concerns a matter that should have been processed under the parties’ grievance procedure, the General Counsel will seek a remedy that includes requiring the union to make the employee(s) whole as if there had been no DFR violation.

Question #3: What is an example of these make whole remedies? For example, if a union violated its DFR by requiring non-members to pay more than members for a negotiated benefit, such as a smaller work shoe allowance for non-members than for members, the General Counsel would request that the union be ordered to reimburse the non-members the difference.

Question #4: What remedy will the General Counsel seek when the DFR violation concerns a matter that should have been, but was not, decided under the parties’ negotiated grievance procedure? If the underlying dispute between the employee and the agency should have been decided under the parties’ grievance procedure, the General Counsel will initially seek a remedy that requires the union to seek to process the grievance. However, when the merits of the grievance cannot be decided under the negotiated grievance procedure because, for example, the agency refuses to process an untimely grievance, the General Counsel will seek a make–whole remedy if the evidence establishes that the underlying grievance was meritorious.

Question #5: What is an example of this remedy? For example, if a union violates its DFR by not properly processing a grievance over a three-day suspension and the grievance cannot be decided under the grievance procedure, the General Counsel will seek an order requiring the union to pay backpay for those three days if the evidence establishes the grievance was meritorious under the contract provisions.

III. WHEN NON-MEMBERS VIEWS MUST BE CONSIDERED BY THE UNION
Question #1: Does the union have to treat members and non-members the same with respect to union meetings? No. Employees who are members of the union have certain benefits by virtue of their union membership, such as the right to manage and represent the union, attend meetings, vote for officers, ratify contracts, and take advantage of union offers on benefits such as health and life insurance and special credit cards.

Question #2: Do non-members have a right to vote on what proposals or interests a union will bring to the bargaining table? No. Participation in the union’s decisional process that defines the proposals or interests that a union brings to the bargaining table is a benefit of being a dues paying union member.

Question #3: Can those proposals or interests discriminate against non-members? No. Although non-members do not have the right to participate in the union’s internal, deliberative decisional process that defines the union’s bargaining positions or interests, the union still has a duty not to discriminate against non-members in what those proposals and interests actually are because the union is required to represent all employees in the bargaining unit without discrimination and without regard to union membership.

Question #4: But what if the agency has delegated to the union, or bargained away, the final decision on what a condition of employment will be? In those circumstances where a union has the final decision on what a particular condition of employment will be, the union must treat members and non-members the same in the union’s internal decision-making process.

Question #5: What is an example of this situation? For example, if an agency agrees in a contract to allow the union to establish how seniority will be calculated, the union may not exclude non-members from a vote to make that decision. Similarly, even if the union officials make that decision without involving employees in the decision-making process, the result may not treat members differently from non-members.

IV. AGENCY DISCUSSION WITH EMPLOYEES ON DUTY OF FAIR REPRESENTATION MATTERS
Question #1: Can an agency advise an employee that, in the agency’s view, the employee was not properly represented by the union and that the employee should file an unfair labor practice charge against the union? No. An agency must remain neutral in any dispute between an employee and a union, just as an agency must remain neutral in a representation election campaign or internal union election campaign. Thus, an agency cannot lawfully encourage an employee to file an unfair labor practice charge against a union or offer an evaluation of the merits of an employee’s dispute with a union.

Question #2: If an employee raises duty of fair representation matters to the agency, how can the agency respond? Agencies may direct employees to the Authority’s Regional Offices to seek information about the duty of fair representation and filing procedures. Only if an agency has a practice of providing charge forms against agencies can the agency provide charge forms against unions. Similarly, an agency can provide procedural advice to employees as to how to file a charge against the union only if an agency has a practice of providing procedural advice to employees as to how to file a charge against itself.

Question #3: Can an agency file a duty of fair representation charge against a union? Yes. An agency may file an unfair labor practice charge against a union alleging a violation of DFR. The charging party (agency) must be prepared to present evidence in support of the charge. However, an agency may not interfere with, coerce, or restrain an employee in exercising the right not to give evidence against the union. Thus, an agency may not seek out and order, or attempt to convince, employees to give evidence to support the agency’s charge against the union.

V. THE DUTY OF FAIR REPRESENTATION AND WORK GROUPS
Question #1: Do employees serving as union representatives on a work group owe a duty of fair representation to the bargaining unit? Yes. When employees are selected to participate in work groups by the exclusive representative and serve as union representatives on those work groups, those union representatives owe a duty of fair representation to the bargaining unit.

Question #2: Can a union select only union members as representatives of the union on a work group? Yes. Although a union is not limited to only selecting union members as representatives for a work group, the union has the right to select its representatives for work groups (when afforded the opportunity to do so), just as the union has the right to select negotiators and stewards for other representational matters

Question #3: Can a union representative on a work group be individually evaluated for that representative’s performance on the work group and either be rewarded or disciplined based on that evaluation? No. In an earlier Guidance Memorandum issued by the General Counsel on August 8, 1995, we advised that union representatives on a work group may not be evaluated, either positively or negatively, for their work as union representatives on a work group, and that, accordingly, those union representatives may not be rewarded or disciplined based on an evaluation of their participation on the work group.

Question #4: Is there any way that a union representative who participates on a work group may be rewarded if the union representative is not individually evaluated and the entire group receives the same recognition?

Some unions and agencies have followed the models discussed in the earlier Guidance Memorandum and have established work groups which consist of union representatives selected by the union (who may be union or non-union members), agency representatives selected by the agencies, and other bargaining unit employees selected by the agency without regard to union membership who are serving on the work group through the assignment of work by management and not as union representatives). In these circumstances, it may be possible for the entire group to receive a reward based on the group’s collective performance, without reference to the performance of individual members. The Regional Directors were advised to submit to the General Counsel for case handling advice any cases involving this situation.

U.S. Office of Personnel Management
Labor-Management Relations

We lead the Government in improving operations by helping agencies work effectively with Federal labor organizations which represent over 2 million Federal employees. We regularly consult at the national level with labor organizations, agency managers and labor relations official in the development of human resource policy and on Government rules, regulations, and binding directives affecting conditions of employment. Following are the links to documents that are useful to labor relations professionals:

Decisions regarding Federal Service Impasses Panel: http://www. flra
Glossary of Federal Sector Labor-Management Relations Terms: Guidance for Implementing the President’s Memorandum Reaffirming Executive Order on labor-management partnerships in the federal government: Labor-Management Relations Advisories: Labor-Management Partnership:

National Partnership Council Information: http://www. usda
Labor-Management Case Law on Performance Management: Negotiable Determinations by the Federal Labor Relations Authority: Negotiating Flexible and Compressed Work Schedules: Recognitions and Agreements Change Form (OPM Form 913B): Significant Cases in Federal Employee and Labor Relations: Directory of Unions and Associations with Exclusive Recognition in the Federal Service:

Traditional Bargaining

SIX ESSENTIAL SKILLS FOR BARGAINING
1. Thorough preparation. A. Know your subject. B. Know your team member’s abilities. C. Have references ready when you meet. D. Have all the equipment ready.

The ability to set limits and goals. A. Know what third parties are doing in similar cases. B. Know what your skills are. C. Know what your members want. 1. Keep them abreast. 2. Try to avoid getting boxed in. D. Know what you are willing to give, what you want for it. E. Prioritize your goals, make a wish list.

Keeping your emotional distance. A. Do not push buttons to get what you want. B. Do not engage in personal disputes. C. Try to stay on the subject of the bargaining. D. Do not let management push your buttons. 1. You must be honest with yourself. 2. Work on your weaknesses 3. Get advice from your peers on your problem areas.

Good listening skills. A. Practice, practice, practice, practice, and practice. B. Get to know your counter parts as best you can. C. Pay attention. D. Help your team members.

Clarity of communication. A. Keep notes, good notes. B. Get the meaning often and write it down. C. History notes, signed by the parties on items you have questions on. D. Don’t be silk, say what you want and want what you say. E. Honesty is the best policy.

Knowing how to close a deal. A. When you’re done…be done. B. Try to have a closing deal. C. Know when to walk away from a deal you can’t live with

VALUES Your values are the principles and standards you live by. They define how you regard others, and how you expect to behave toward the people with whom you interact. Figuratively speaking, values define both where you want to go and how you expect to travel.

VALUES Values also define your limits: the boundaries of behavior you will not cross. The clearer you are with your values, the more you understand what it is you cherish. Then making choices about your goals becomes easier. To be a master negotiator, you must be able to look into your own eyes in the mirror every morning and know you are living up to your own standards.

VALUES No hard and fast rules apply to every negotiation, except this principle: Keep your antenna out for all the information you can possibly gather about the people you negotiate with: their motives, their hopes, and their needs. It’s ironic, but true – you get more of what you want by being attuned to what the other party wants.

INFORMATION CHECK LIST
See page 99

CONTROLLING THE ENVIRONMENT
Seating Sit next to the person with whom you need to consult quickly with and privately. Sit opposite the person with whom you have the most conflict. For example, if you are the leader of your negotiating team, sit opposite the leader of the other negotiating team. If you want to soften the confrontational effect, you can be off-center by a chair or two. Sometimes the shape of the table or room gives you the opportunity to be adjacent sides with your opponent, rather than dead opposite.

CONTROLLING THE ENVIRONMENT
Consider who should be closest to the door and who should be closest to the phone. Windows and angles of the sun are important considerations, especially if the situation generates heat or glare.

SETTING LIMITS IN FOUR EASY STEPS
Know that you have other choices: - Try to have alternatives to proposals, ready to go. - Don’t have all your eggs in one basket on a proposals 2. Know what the other choices are: - Know what your other proposals are, and be as prepared on them as you were your first. - Have a list.

SETTING LIMITS IN FOUR EASY STEPS
Know your “or else”: - This will help determine what you are willing to give for something. 4. Know how to enforce your limits: - You may want to watch caving in too often. - Your preparation should help you be ready to enforce your limits.

LISTENING TOOLS Restating: Repeat, word-for-word, a short statement that the other person has just made to you. Paraphrasing: Recount, in your own words, the longer statements that the other person has said to you

SIX BARRIERS TO BEING A GOOD LISTENER
1. The defense mechanism. 2. Weak self confidence. 3. The energy drag. 4. Habit. 5. The preconception. 6. Not expecting value in others

QUESTIONS Plan your questions. Ask with a purpose.
Tailor your questions to your listener. Follow general questions with more specific ones. Keep questions short and clear – cover only one subject. Make transitions between their answers and your questions. Don’t interrupt! Let the other person answer the question.

TEN PERSONALITY TRAITS OF TOP NEGOTIATORS
1. Empathy. 2. Respect. 3. Personal integrity. 4. Fairness. 5. Patience. 6. Responsibility. 7. Flexibility. 8. Sense of humor. 9. Self-discipline. 10. Stamina.

PHRASES TO AVOID Trust me. I’m going to be honest with you.
Let’s split the difference. Take it or leave it. I’m not sure about this, but… Am I right? “Kind of”, “Sort of”, “Probably”, and “Seems like”. “Ummm”, “”Like”, and “Really”.

Interest-Based Bargaining

INTEREST BASED BARGAINING DEFINITIONS CHEAT SHEET
Issue: topic or subject of negotiation. Position: one party’s solution to an issue, the how. Interest: concerns, needs, desires behind the issue, the why. Option: potential solutions that satisfy the interests. Standards: objective criteria to compare and judge options.

Prepare for Negotiations: Educate constituents Seek information List issues and interest Write opening statements Share list of issues

Open Negotiations: Share opening statements Discuss the issues

Negotiate with “IB” Process: Jointly select an issue State issue clearly Flip chart interests Discuss and clarify interests Identify mutual interests

Brainstorm options that satisfy one or more interests; other interests Clarify options Propose possible standards Clarify each proposed standard Reach consensus on the standards Discuss each option

Amend, combine, develop new options Apply standards to options (use Matrix) Eliminate options which meet few or none of the standards Combine options that meet the standards Reach consensus on the solution Draft the solution Check consensus on the written solution

P.A.S.T “WIN-WIN” problem solving is based on Principles, Assumptions, Steps, and Techniques used to achieve positive results for both sides. Principles: Focus on issues, not personalities Focus on interest, not positions Create options to satisfy both mutual and separate interests Evaluate options with standards, not power

P.A.S.T “WIN-WIN” problem solving is based on Principles, Assumptions, Steps, and Techniques used to achieve positive results for both sides. Assumptions: Cooperative problem solving enhances relationships Both parties can win Parties should help each other win Open discussion expands mutual interests and options Standards can replace power in outcome

P.A.S.T “WIN-WIN” problem solving is based on Principles, Assumptions, Steps, and Techniques used to achieve positive results for both sides. Steps: Prepare for “WIN-WIN” problem solving Develop opening statements Identify issues Identify interests Develop options Develop standards Judge options with standards Achieve “WIN-WIN” resolution

P.A.S.T “WIN-WIN” problem solving is based on Principles, Assumptions, Steps, and Techniques used to achieve positive results for both sides. Techniques: Brainstorming Consensus building Problem solving Idea charting

Useful Websites

USEFUL WEB SITES CABINET AGENCIES: Agriculture www.usda/gov
Commerce Defense Education Energy HHS

USEFUL WEB SITES CABINET AGENCIES: Interior www.usgs.gov/doi
Justice Labor State Transportation Treasury Veterans Affairs

USEFUL WEB SITES BRANCHES OF GOVERNMENT: House of Reps. www.house.gov
Senate White House Supreme Court

USEFUL WEB SITES MULTI-AGENCY LISTINGS:
Federal Web Locator Fedworld US Agencies Page Fed. Gov. www Server Congress (legislative info.)

USEFUL WEB SITES MULTI-AGENCY LISTINGS:
Federal Judiciary General Accounting Office Government Printing Office National Performance Review US Code General Services Admin. OWCP Web Site

USEFUL WEB SITES USEFUL SITES: Federal Center www.fedcenter.com
Finance Net Ignet Office of Research Evaluation & Statistics US Postal Service Social Security Admin.

USEFUL WEB SITES EMPLOYEE ISSUES:
Merit System Protection Board Federal Labor Relations Authority Office of Special Counsel GAO Comptroller Decisions

USEFUL WEB SITES EMPLOYEE ISSUES:
National Labor Relations Board Federal Job Listings (OPM) Union Pride AFGE

Legal Information Web Sites:
There are 2 web sites you can access which provide gateways to a host of legal information. The first is From this site you can go to “Federal” and then to “Legislative”. At this point you can access the US Code from several sources. You can link to Thomas to find out what bills have been introduced in Congress, their current status and which ones have been enacted into law. Thomas also permits you to search and read the Congressional Record and to find out what has been published in the Federal Register. And you can even access a pictorial directory of all of the members of Congress.

Legal Information Web Sites:
The second site is From this site, you can access something called “Legal Research Bookmarks”. This will provide you with a host of links to legal materials including statutes and regulations, cases and law review articles, and to business and news documents. The link spans not only the Federal universe but covers state and local areas as well as some foreign countries.

STEWARD TRAINING THE END

ROGELIO (ROY) A. FLORES NATIONAL VICE PRESIDENT AFGE 10TH DISTRICT

Similar presentations

Presentation on theme: "ROGELIO (ROY) A. FLORES NATIONAL VICE PRESIDENT AFGE 10TH DISTRICT"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

ROGELIO (ROY) A. FLORES NATIONAL VICE PRESIDENT AFGE 10TH DISTRICT

Similar presentations

Presentation on theme: "ROGELIO (ROY) A. FLORES NATIONAL VICE PRESIDENT AFGE 10TH DISTRICT"— Presentation transcript:

Similar presentations

About project

Feedback