1. Understanding Your Role Managing in a Unionized Environment Presented by: Kristina McCarthy, Associate Director of Human Resources Eileen Labao, Senior Human Resources Consultant Maura Power, Human Resources Consultant
Welcome to Understanding Your Role as a Manager in a Unionized Environment.
You are here because you have the responsibility of managing employees who belong to one or more of the University’s unions. Some of you have previous experience managing in a unionized environment either at Harvard or another employer. Some of you have never managed in a unionized environment, and maybe have never even managed employees until recently. No matter what your skill and experience level is, this training will benefit you. The information I will be reviewing with you today is intended to bring consistency across all of CS unionized work groups and provide you with a baseline knowledge that I hope will make your job as a manager of unionized staff less challenging.

2. The High Cost of Not Managing Performance in a Unionized Environnment
A primary function of a manager is to manage the performance of his/her employees. Not consistently and appropriately addressing these issues will have a negative impact on your team and its overall productivity.
Poor performance becomes an acceptable standard.
Reputational impact for the manager, department and University.
Perception of not treating people fairly and consistently.
High staff turnover.
Time consuming grievances and costly arbitrations.
There are no quick fixes or short cuts when managing the performance of your employees.
Spend the time managing now, rather than dealing the consequences of not managing later on.
A primary function of being a manager is ensuring your employees are performing their jobs well. If you choose not to manage performance, poor performance will become an acceptable standard, your reputation as a manager will be negatively impacted and ultimately, your department and the University’s reputation will be affected. In a unionized environment, there are additional risks to consider. Grievance processes and arbitrations are time consuming and costly. By addressing performance issues consistently, timely and fairly, you will decrease the chances of having to spend significant amounts of time dealing with grievances and arbitrations. We will discuss disciplinary actions and your responsibilities of managing in a unionized environment a little later on.

3. Section One
Union Basics

4. Learning Objectives
By the end of this session, you will…
Understand common Union terminology.
Know what a Collective Bargaining Agreement (CBA) is.
Understand Weingarten Rights and how they impact your role as a Manager.
Understand the roles of various Union representatives.

5. Common Terms
NLRB: The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices.
Labor Union: An organization of workers formed for the purpose of advancing its members' interests in respect to wages, benefits, and working conditions
Collective Bargaining Agreement (CBA): A written, legally enforceable contract, for a specified period of time, between the management and its employees represented by an independent union. Sets down and defines conditions of employment (wages, working hours and conditions, overtime, payments, holidays, vacations, benefits, etc.) and procedures for dispute resolution. Also called labor agreement, union agreement or union contract.
Grievance: A grievance is any contract-related dispute or difference arising between the union and management. A grievance is filed on behalf of an employee or employees (the “grievant(s)”) by their union.
Arbitration: A non-court, legal procedure for resolving disputes using a neutral arbitrator.

6. Unions within Campus Services
Campus Services currently has five unions and five different collective bargaining
agreements. They are:
SEIU, Local Custodians
Harvard University Security, Parking and Museum Guard Union (HUSPMGU)
UNITEHERE!, Local 26 – Dining Services
Area Trades Council (ATC)
Harvard University Clerical & Technical Workers Union (HUCTW)
The CBAs for each of these unions are located on the Harvie website.

7. The Collective Bargaining Agreement (CBA)
Each agreement is negotiated with the union and the respective management. The Office of Labor and Employee Relations (LER) manages the process for the University. The union will have a lead negotiator, sometimes an attorney and representatives of the membership at the table.
Agreements are negotiated and in effect for a finite period of time. They are usually effective for anywhere between 3 to 5 years.
Agreements address wages, benefits and terms and conditions of employment.
The CBA is an essential tool for managers. Become familiar with your Department’s relevant agreement(s).

8. Unionized Employees’ Rights Under the Law Weingarten Rights
Employees who are covered under a Collective Bargaining Agreement (CBA) have the right to have a union representative present at meetings that may result in discipline (ex: fact-finding interview).
When arranging these types of meetings, please make sure the employee is aware of what will be discussed.
Tip: It may be helpful in some circumstances to alert your local shop steward to the meeting prior to scheduling it.
When having a formal meeting with an employee and shop steward, it is strongly recommended to have a fellow manager (or HR in some situations) present.
Before you conduct any fact-finding interviews or impose a disciplinary action, it’s important you are familiar with a unionized employee’s rights under the law. Specifically, management should be familiar with “Weingarten Rights”. Weingarten Rights pertain only to employees covered under a collective bargaining agreement.
A manager never wants to be in the position where they are accused of denying a Union employee their Weingarten Rights. Saying things like: “Why did you tell the Union?” , “You shouldn’t have filed a grievance” “It would be easier if you didn’t bring a shop steward into this.” are not appropriate. Bargaining unit members are free to exercise their Weingarten Rights as well as other rights they have under their collective bargaining agreement. Retaliating against an employee for exercising those rights will not be tolerated.

9. Union Representatives
Shop Stewards are employees of the University. They represent and defend the interest of his/her fellow employees and are elected by their membership. Stewards typically:
Monitor and enforce the provisions of the collective bargaining agreement.
Ensure the compliance of all workplace federal, state and local laws and regulations.
File grievances on behalf of the membership and represent those members at grievance hearings.
Discuss workplace issues directly with management.
Disseminate information regarding the union to its members.
Shop Stewards are allowed release time to participate in investigations, grievance hearings, disciplinary meetings, formal hearings and negotiations.
As a manager in a unionized environment, you will be working closely with your local shop steward(s). Union stewards:
Monitor and enforce the provisions of the collective bargaining agreement.
Ensure the compliance of all workplace federal, state and local laws and regulations.
File grievances on behalf of the membership and represent those members at grievance hearings.
Discuss workplace issues directly with management.
Disseminate information regarding the union to its members.
Managers are expected to be reasonable when a shop steward is asking for release time. If you have any questions about a steward’s request, don’t hesitate to call your HR Consultant.

10. Union Representatives
Unions also employ “Organizers” and/or “Business Agents”. They may also be involved in grievances and related discussions along with Stewards . These individuals are not Harvard employees. The only exception to this are HUCTW Organizers.
HUCTW utilizes Harvard staff as Organizers. These staff are given a Union Leave from their jobs in order to serve as an HUCTW Organizer.
HUCTW Organizers serve as Shop Stewards for their members.

11. Regular communication is essential!
Developing and Maintaining a Productive Working Relationship with your Shop Steward
As a manager, a good working relationship with union stewards is invaluable. If you gain the trust and respect of the steward, he or she is more likely to come to you before any problems escalate into grievances.
If helpful, schedule regular meetings with your steward(s). This will give you both an opportunity to discuss concerns.
Regular communication is essential!
It’s important to develop a good working relationship with your local steward. A steward should feel comfortable speaking to management regarding workplace concerns, even before filing a formal grievance. Maintain open lines of communication and an open door policy with shop stewards. If you have a shop steward at your location, have a weekly check-in with them - find out if there are any issues, concerns, questions in the work unit.

12. Section Two Managing the Performance

13. By the end of this session, you will…
Learning Objectives
By the end of this session, you will…
Identify when it’s appropriate to coach an employee.
Understand the purpose of discipline and why we use it.
Understand the different types of discipline and when to use what.
Understand the concept of “Just Cause”.
Know how to conduct fact-finding and disciplinary meetings with a
unionized employee.
Before we begin, let me orient you to this section and what we’ll be covering. My goal is for these sections to be interesting, but more importantly for them to be applicable and relevant to you. Don’t hesitate to ask questions or request clarification on anything we discuss.
By the end of this session, you will:
Identify when it’s appropriate to coach an employee instead of disciplining them.
Understand the purpose of discipline and why we use it.
Understand the different types of discipline and when to use what.
Know how to properly conduct investigatory and disciplinary meetings with a unionized
employee.

14. Coaching an Employee: Improving Performance
Coaching is an appropriate tool when first addressing general performance and/or behavioral problems (tardiness, making an error, etc.)
The conversation should happen in a timely fashion. Don’t wait too long to
address the issue.
The meeting isn’t disciplinary, it’s just a conversation.
Don’t have the discussion in a public area.
Discuss the problem with the employee clearly.
Discuss ways the problem can be solved.
Give positive and negative feedback.
Maintain open, two-way communication going forward.
Acknowledge performance improvements.
The first step in correcting an employee’s performance issue or behavior is to communicate the problem to them. Day to day performance issues deserve a coaching session prior to imposing discipline. An employee can’t improve if they don’t know there is an issue! The goal of having these conversations is to help the employee succeed.
The conversation should happen in a timely fashion. Don’t wait too long to address the
issue.
The meeting isn’t disciplinary, it’s just a conversation.
Don’t have the discussion in a public area. Keep it private.
Discuss the problem with the employee.
Discuss ways the problem can be solved.
Give positive and negative feedback.
Maintain open, two-way communication going forward.
If you think it will be helpful, have a shop steward involved.

15. Document, Document, Document!
It’s important for managers to document these coaching conversations - even though it’s not a disciplinary action. All managers should have “notes” – either a notebook or a secured computer file.
Simple notes like: “I spoke to <employee> on <date> for <brief description of problem>.” is sufficient documentation for these coaching sessions.
*Manager’s notes are not part of the employee’s personnel file.* But they may be subpoenaed during an arbitration. Please make sure your notes reflect facts only – not personal opinion.
Documentation of a coaching session is just as important as documenting a disciplinary action. It’s critical for managers to maintain consistent and accurate notes. Just a reminder: these notes are not part of the employee’s personnel file. Employees do not see copies of these notes nor do they have access to your files. Make sure they are kept in a secured location (either in a locked file cabinet or a secured computer file).

16. Disciplinary Actions
Sometimes coaching doesn’t prove to be effective in improving employee performance and behavioral problems. In these cases, discipline would be the likely next step.
As managers, you have the authority and responsibility to administer discipline. Discipline should be fair, consistent and reasonable. As we have already discussed, you also must abide by legal obligations and other standards when disciplining in a unionized environment.
Sometimes coaching doesn’t prove to be effective in improving employee performance and behavioral problems. In these cases, discipline would be the likely next step.
As managers, you have the authority and responsibility to administer discipline. Discipline should be fair, consistent and reasonable. As we have already discussed, there are legal obligations and other standards which must be considered when disciplining in a unionized environment.

17. What is Discipline?
Discipline is the means by which management can correct behavioral and performance issues and ensure adherence to University policies/procedures and contractual rules. The purpose of discipline is to correct the behavior and help the employee succeed. It is not designed to punish an employee.
Unfortunately, there are times when an employee’s performance and/or behavior does not improve with coaching. Or, an employee’s performance and/or behavior is egregious enough to warrant immediate disciplinary action. The ultimate goal of discipline is to correct the problem, not to punish the employee.

18. Management’s Objectives When Imposing Discipline
Formally communicate the performance or behavioral deficiency to the employee
and maximize their opportunity for success.
Ultimately reduce the probability of additional or more serious offenses.
Obtain compliance with policies, procedures and contractual obligations.
Ensure consistency and fairness.
As we discussed, the purpose of discipline is not to “punish” the employee, but to:
Formally communicate the performance or behavioral deficiency to the employee and maximize their opportunity for success.
Ultimately reduce the probability of additional or more serious offenses within the
workforce.
Obtain compliance with policies, procedures and contractual obligations.
Ensure consistency and fairness.

19. Gather relevant documentation.
First Steps
Make sure you have done your due diligence prior to implementing any discipline. For general performance and behavioral issues*, you should:
Gather relevant documentation.
Conduct fact-finding interviews while complying with the employee’s
Weingarten Rights. Maintain written documentation of these interviews.
Consult with your direct supervisor.
Consult with Human Resources.
* This does not include complaints of sexual harassment, hostile work environment, threats of violence or other serious offenses. These matters should be referred to Human Resources immediately.

20. Determining the Level of Discipline
Some Things to Consider
Employee’s past record. A good past record vs. previous infractions will have an
impact on your decision.
Employee’s length of service. Are they a long-term or short-term employee?
Did the employee know about the work rules?
Have the rules been consistently enforced across the department? Are you treating
all employees the same?
Ask yourself: does the discipline meet the “just cause” standard?

21. Just Cause – What is it?
Discipline imposed must meet a “just cause” standard. To meet that standard, think about the following:
Was the employee warned that their behavior would result in discipline. This includes: policies,
procedures, work rules, previous disciplinary actions. An exception to this rule may be made in
instances of severe misconduct.
Was the violated work rule reasonably related to the orderly, efficient, and safe operation of
the business.
Did Management make a fair and objective review of the facts prior to administering any
discipline.
Was there substantial and persuasive evidence that the employee committed the offense.
Have Management’s rules, orders and disciplinary action been applied in a consistent and
non-discriminatory manner.
Is the discipline imposed reasonably related to the seriousness of the offense and the
employee’s past work record.
Discipline imposed must meet a “just cause” standard. To meet that standard, think about the following:
Was the employee warned that their behavior would result in discipline. This includes: policies,
procedures, work rules, previous disciplinary actions. An exception to this rule may be made in
instances of severe misconduct.
Was the violated work rule reasonably related to the orderly, efficient, and safe operation of
the business.
Did Management make a fair and objective review of the facts prior to administering any
discipline.
Was there substantial and persuasive evidence that the employee committed the offense.
Have Management’s rules, orders and disciplinary action been applied in a consistent and
non-discriminatory manner.
Is the discipline imposed reasonably related to the seriousness of the offense and the
employee’s past work record.

22. Progressive Discipline
Progressive discipline is a system of discipline where the level of discipline increases upon repeat occurrences of a performance issue or behavior.
As we have already discussed, the level of discipline chosen for a particular incident will depend on a variety of factors that include the severity of the incident, the previous work history of the employee, the employee’s length of service, etc.
As a manager, I’m sure you have heard the term “progressive discipline” used many times. It’s a common practice in both unionized and non-unionized environments. It’s a system of discipline where the level of discipline increases upon repeat occurrence of a performance issue or behavior.
Progressive discipline is a concept and not a prescribed system of discipline, every situation is different and may result in various paths.

23. Steps of Disciplinary Actions*
Verbal Warning
Written Warning
Suspension
Administrative Suspension
Final Warning
Last Chance Agreement
*These are examples only and are not intended to be an exhaustive list or a prescribed progressive disciplinary path.

24. private, reserve a conference room.
Getting Ready
Before you present the disciplinary notice to the employee, there are a few things you need to do.
Have HR review the disciplinary action and inform your direct supervisor (if
applicable).
Make sure you have a private space to conduct the meeting. If your office isn’t
private, reserve a conference room.
Ask another manager (either a peer, your manager, etc.) or HR to sit in the
meeting.
Notify the employee that the meeting will be happening. Let them know the purpose of the meeting (disciplinary). *
*In some instances, it might be better to speak directly with the shop steward prior to speaking with the employee.
Be sure not to have the meeting with out a shop steward unless the employee insists they do not want representation. If this is the case, be sure to document it in your notes.

25. Delivering the Discipline
After completing all the necessary steps, you are now ready to deliver the disciplinary action.
Let the employee know why you are having the meeting. Ex: “I am issuing you a
verbal warning regarding <incident>.”
Give details of the incident, previous discussions and/or discipline, etc.
Inform the employee how they can improve going forward.
Warn the employee what will occur if they do not correct their behavior.
Give the employee a copy of the disciplinary notice, keep one copy for yourself and
send another copy to HR for the personnel file.
Do not deliver discipline without notifying HR.

26. Termination
Please contact Human Resources regarding a termination. All terminations must be reviewed by Human Resources.

27. Section Three
GRIEVANCE PROCEDURES & ARBITRATION

28. By the end of this session, you will…
Learning Objectives
By the end of this session, you will…
Understand what a grievance procedure is and the relevant steps associated with it.
Know the types of grievances that a union files.
Understand your role in the grievance procedure and how to appropriately respond to a
grievance.
Understand the arbitration process and the manager’s role within the process.

29. Grievance Procedure
Each Collective Bargaining Agreement (CBA) has a prescribed grievance procedure which must be adhered to.
In most CBAs, the steps are:
Informal Step Step 2 Step 3
Discussion (Manager) (HR or Designee) (LER) Arbitration
w/ Manager
Grievances must be filed by the union within a set number of days. Please see the relevant union contract for specific time frames. Not all grievances start at Informal Discussion.
This slide shows what a typical grievance procedure looks like. For the most part, and for most unions, a 3-step formal procedure is the norm. HUCTW handles their grievances a bit differently, but the concept is still the same. Sometimes, certain grievances are escalated through the process – meaning, they may start immediately at Step 3 (example: termination). This doesn’t happen very often, and when it does, both the Union and Management (including HR) must be in agreement with jumping steps.

30. Purpose of a Grievance Procedure
To resolve workplace disagreements and disputes in a consistent way.
To ensure the enforcement of the collective bargaining agreement.
To facilitate communication between management and employees.
To provide a recognized means for employees to express concerns.
Grievances have a negative connotation associated with them. Personally, I don’t think having a grievance filed is a negative. It’s the Union’s way of trying to resolve an issue – that is all. My advice to managers is – don’t get too stressed out over having a grievance filed. You will win some grievances and you will lose some grievances – it’s part of being in a union environment and it’s not the end of the world. While we want to try to resolve issues before they become grievances, that can’t and won’t always happen. And that is perfectly fine.

31. There are two types of issues a union will grieve.
Why Grievances Arise
There are two types of issues a union will grieve.
Violations of a contract provision. These include, but are not limited to:
Overtime and hours distribution
Awarding a job
Safety concerns
Discipline and/or discharge. The union may grieve a disciplinary action or
termination that management imposes upon a member.
Let’s discuss why grievances do happen. There are two types – Violations of a contract provision and discipline and/or discharge.
When a shop steward fills out a grievance form, they must cite the Article that Management has violated - for discipline and/or discharge, this is the just cause standard provision in the CBA. Otherwise, it’s the article associated with the violation (i.e.: overtime distribution, schedule changes, shoe reimbursement, etc.) .

32. Take notes to document the conversation.
Hearing a Grievance
Prior to issuing a decision during Step One, management is responsible for meeting with a Shop Steward and grievant regarding their grievance.
Helpful tips:
Keep an open mind.
Listen for understanding. Allow the Shop Steward and grievant time to discuss their
case.
Take notes to document the conversation.
At the end of the meeting, thank the Shop Steward and grievant and let them know
you will get back to them with a response.
When a grievance is filed, the Shop Steward should be handing you a copy of the grievance. The form should be fully completed – make sure it indicates all the important information: dates, names, article violated, etc. At this time you can either meet with the steward to go over the grievance or you can schedule another time to meet with them. You should meet with the steward and grievant(s) as soon as possible after receiving the grievance.
When you meet, while it’s difficult to do sometimes, keep an open mind. Listen for understanding. This is the Union’s opportunity to present their case. Be respectful and give them that opportunity. You can ask questions of the steward or grievant if necessary. At the end of the meeting, thank them for their time and let them know you will get back to them with an answer. On some occasions, grievances get easily resolved during Step 1 meetings. Sometimes they do not.
If possible, have a fellow manager sit on your Step 1 grievance discussions.

33. Responding to a Grievance
Management is also responsible for responding in writing to grievances.
There are three choices when responding to a grievance:
Deny
Overturn
Come to a mutually agreeable resolution that does not erode the contract and won’t have an impact on future grievances.*
*Discuss with HR and your manager prior to making any agreement.
When you formally answer a grievance in writing – it’s best to keep the answer direct and to the point. You have 3 choices – deny, overturn, or come up with some other resolution. If the resolution goes against contract language or past practice, you should check in with HR and your supervisor prior to submitting a response. HR can help you write a response to your grievance. Don’t hesitate to contact your HR Consultant for assistance.

34. Step 2: HR (or designee) is the Hearing Officer for Step 2 grievances.
Next Steps
If the Union isn’t satisfied with the response given at Step 1, they have the right to further pursue the grievance procedure. CBAs, in general, are set up with the a 3-step system.
Step 2: HR (or designee) is the Hearing Officer for Step 2 grievances.
Step 3: A representative from Labor & Employee Relations (LER) is the Hearing officer for Step 3 grievances.
Like I said a couple slides ago, sometimes a grievance just doesn’t get resolved at Step 1. If that is the case, the grievance can be escalated to Step 2. Step 2 grievances are typically heard by me (Kristina). Sometimes another HR rep will conduct the grievance hearing if I’ve been too involved in the decision making process. Our goal is to have the Step 2 grievance be as impartial as possible.
If the grievance still cannot be resolved, the Union may pursue it at Step 3. Step 3 grievances are heard by a representative from Labor and Employee Relations. Management and the Union are required to attend the Step 3 hearings to present their side of the dispute. HR will be present to support Management. After the hearing, LER will render a decision.

35. Arbitration
If the Union isn’t satisfied with the Step 3 answer, they have the right to file for arbitration.
Both parties agree to an arbitrator and/or refer the case to a third party like American Arbitration Association (AAA). Arbitrations are scheduled months out depending on the schedule of the chosen arbitrator.
If a grievance is brought to arbitration, you will have to testify and defend the reason why you imposed the discipline or discharged the employee.
The last step to a Union’s grievance process is Arbitration. Most grievances do not rise to this level. Typically, terminations end up in arbitration, or on occasion, a dispute with how the contract is being interpreted.

36. What Happens at an Arbitration?
In a disciplinary or discharge case, the University has the burden to prove “just cause” and will testify first. Management will testify regarding their decision and is cross-examined by the union’s attorney. The University may call other witnesses as well.
The union will then have the option to put witnesses before the arbitrator. The University will be allowed to cross-examine them as well.
In cases where the grievance is related to a contract dispute, the burden is on the union. They will typically present their case first in these situations.
The arbitrator may or may not ask questions. There is also usually a stenographer in the room recording the proceeding.
Each side also produces documents such as: disciplinary actions, policies, procedures, comparator cases, articles from the CBA, etc.
On the off chance you are part of an arbitration, I wanted to give you a brief overview of what to expect.
If the arbitration is regarding a disciplinary action or discharge, the burden of proof is on Management (or, the University) to prove that the action met the “just cause” standard. The manager who imposed the discipline will testify. Other managers, HR, etc. may also testify. The University’s attorney will ask questions, and the Union’s attorney will have the opportunity to cross-examine.
The Union will then have the opportunity to put witnesses before the arbitrator to “poke holes” in Management’s case. After the Union questions their witnesses, the University’s attorney will have the opportunity to cross examine.
The arbitrator may also have questions for either side.
For contract disputes, the Union has the burden to prove their case. They will present first.
During an arbitration, the sides will produce documents which will be entered in as evidence. This includes, the CBA, disciplinary actions, policies, etc.

37. What Happens After an Arbitration?
After an arbitration, both the union and the University will submit a “brief”. A brief is essentially a document stating the facts and points of law of a case.
After the briefs are submitted (usually about 30 days after the arbitration), the arbitrator has about 30 days to render his/her decision.
In a discharge case, for example, the arbitrator can:
Deny the grievance
Reinstate the employee with full back pay
Reinstate the employee without back pay
Reinstate the employee with or without back pay and a lesser degree of discipline.
Regardless of the outcome, the arbitrator’s decision is binding.
The sides have one final opportunity to outline their case in a “brief”. This is written by the attorney and submitted to the arbitrator. Once the arbitrator has these, they review the entirety of the case and render a decision. Regardless of the outcome, the arbitrator’s decision is binding. There is no chance to appeal.

39. Resources for the employee’s personnel file.
Final Thoughts
When delivering disciplinary actions, be respectful, communicate clearly.
Maintain all documentation related to disciplinary actions and grievances.
Take good notes! Document date, time, who was present at a meeting, etc.
Send copies of grievances, grievance responses and disciplinary actions to Human
Resources for the employee’s personnel file.
Consult with your direct supervisor and/or HR prior to imposing discipline or
responding to grievance.
For the most part, managing in a union environment is very similar to managing in a non-union environment. The only difference is that in a union environment, there is another stakeholder (the union) that is involved and needs to be considered. You still need to communicate to your employees, you still need to hold people accountable for their performance, you still need to manage your business.
A few final thoughts:
As I mentioned earlier, maintaining documentation is essential. You will be asked to produce this documentation during grievances and arbitration hearings.
It’s also important to send copies of grievances, grievance responses and all disciplinary actions to HR. We want to ensure we have a complete personnel record on file for all employees.
As always, consult with your manager and/or HR prior to imposing discipline or responding to a grievance. HR can provide guidance in relation to consistency and can alert you to potential risks.

40. QUESTIONS?

41. Sample Arbitration Cases
You Be the Judge

42. The Incident
The grievant is a toll collector. After completing his morning shift, he was driving his personal car. He was still in uniform. He was in the left lane behind a slow moving van. As it would later unfold during the employer’s investigation, the grievant wrote a statement to the HR department which read: “I came up behind a line of two cars behind a white van that was driving in the left lane and pacing the car in the right lane next to him. The previous Monday I had been playing paintball with my friends, and I still had my paintball marker gun in my truck. As I saw a chance to pass the white van, I began to pass him on the right. In a moment of anger, and extreme stupidity, I grabbed the paintball gun and fired several shots at the passenger window.”

43. The Incident (continued)
The grievant had shot at least four balls of blue paint at the van, striking the vehicle’s front windshield and passenger side window and paneling. Jorge Morales, the driver of the van, would later testify that the grievant was laughing as he sped by. Morales was not injured and did not suffer significant property damage, but he spotted a state Trooper soon after and reported the incident. Minutes later, another Trooper stopped the grievant as he exited the highway. The grievant readily admitted that he shot paintballs at Morales’ vehicle. The trooper’s report recounted the grievant saying “It was stupid. The guy pissed me off because he would not move to the right.”

44. Criminal Charges & Conviction
The prosecutor charged the Grievant with possession of a weapon for an unlawful purpose and interference with transportation. At the criminal case, the grievant admitted to the shooting and apologized for his conduct. “I feel so stupid and sorry for what I did and promise never to do anything like this again.” He also told the court that, at the time of the incident, he was medicated for depression and anxiety concerning his upcoming nuptials. The court sentenced him to 2 years probation, conditioned on continued psychiatric counseling.

45. Termination
The Tollway authority (the grievant’s employer) discharged him for violating Item 31 of the “General Rules and Regulations” contained in the Toll Collector’s Manual, which provides that “employees must not commit any act which will be prejudicial to the good order or discipline of this Authority.” The discharge letter wrote, “By your act of aggression, you have demonstrated a flagrant disregard for the personal property and safety of our customers. Your actions are unacceptable and will not be tolerated.”

46. Union’s Argument
At the grievant’s arbitration hearing, the union argued that termination was inappropriate because his conduct did not harm the Authority’s reputation, his actions did not render him unable to perform his duties, co-workers remained willing to work with him, and no substantial nexus existed between his conduct and his employment as a toll collector.

47. Management’s Argument
The Authority asserted that termination was justified because “the grievant’s actions implicate safety concerns and bring reputation of the Authority in disrepute.”

48. Do you uphold the discharge?
Arbitrator’s Award Arb 1_____ Arb 2_____ Arb 3_____ Arb 4_____ Arb 5_____

49. Arbitrator’s Award Arb 1_NO_ Arb 2__NO_ Arb 3_NO_ Arb 4_YES_ Arb 5 NO_
Panel’s Decision
Arbitrator’s Award Arb 1_NO_ Arb 2__NO_ Arb 3_NO_ Arb 4_YES_ Arb 5 NO_

50. The employer employs thousands in a shipyard and related facilities
The employer employs thousands in a shipyard and related facilities. Seven years prior, an employee entered one of the company’s facilities at this site, shot two employees and injured 14 others. In response, the company embarked on a company-wide training and took extensive security measures. The training included that if a fellow employee observed or became aware of a threat, the employee was mandated to report it.
The History

51. The Incident
During a conversation with a co-worker, the grievant was upset about possible changes in the shift schedule. He said (and there is no dispute about this): “If they don’t do it, I’ll take Jim and Jerry out in the street and shoot their asses.” The rest of the conversation was over how seniority rights would be observed in the new schedule. The coworkers also relayed another statement (one that the grievant disputes): “prepared for a fight to the death,” if the posting of jobs was not done according to the contract.

52. Termination
The grievant was discharged based on the work rule that reads, in part, any “threat with personal or property injury…will be subject to discharge.”

53. Management’s Argument
The company did not credit the grievant’s later statements that he was joking. Given the company’s history, Labor Relations felt that such a reference to shooting more than inappropriate; it is unacceptable. Thus discharge for violation of the rule is for just cause. Labor relations also point out that it is consistent in the enforcement of the rule. Since the change in policy and security 7 years ago, 30 employees have been discharged for violations not unlike the grievant’s in this case.

54. Do you uphold the discharge?
Arbitrator’s Award Arb 1_ ___ Arb 2__ __ Arb 3_ ___ Arb 4_ ___ Arb 5 ____

55. Arbitrator’s Award Arb 1_YES_ Arb 2__NO_ Arb 3_NO_ Arb 4_NO_ Arb 5 NO_
Panel’s Decision
Arbitrator’s Award Arb 1_YES_ Arb 2__NO_ Arb 3_NO_ Arb 4_NO_ Arb 5 NO_