Understanding Your Role Managing in a Unionized Environment

Presented by:Kristina McCarthy, Associate Director of Human ResourcesEileen Labao, Senior Human Resources ConsultantMaura Power, Human Resources Consultant

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.

Section OneUnion Basics

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.

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.

Unions within Campus Services

Campus Services currently has five unions and five different collective bargainingagreements. They are:

• SEIU, Local 615 - 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.

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).

Unionized Employees’ Rights Under the Law

Weingarten RightsEmployees 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.

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.

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.

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!

Section TwoManaging the Performance

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.

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.

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.

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.

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.

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.

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.

Determining the Level of DisciplineSome 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?

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.

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.

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.

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.

Delivering the DisciplineAfter 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.

Termination

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

Section ThreeGRIEVANCE PROCEDURES & ARBITRATION

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.

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 1 Step 2 Step 3 Discussion (Manager) (HR or Designee) (LER) Arbitrationw/ 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.

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.

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.

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.

Responding to a Grievance

Management is also responsible for responding in writing to grievances.

There are three choices when responding to a grievance:

1. Deny 2. Overturn3. 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.

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.

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.

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.

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.

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.

QUESTIONS?

Sample Arbitration CasesYou Be the Judge

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.”

The Incident

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.”

The Incident (continued)

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.

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.”

Termination

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.

Union’s Argument

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.”

Do you uphold the discharge?

Arbitrator’s AwardArb 1_____ Arb 2_____

Arb 3_____ Arb 4_____Arb 5_____

Panel’s Decision

Arbitrator’s AwardArb 1_NO_ Arb 2__NO_Arb 3_NO_ Arb 4_YES_

Arb 5 NO_

The History

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 IncidentDuring 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.

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.”

Management’s ArgumentThe 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.

Do you uphold the discharge?

Arbitrator’s AwardArb 1_ ___ Arb 2__ __

Arb 3_ ___ Arb 4_ ___Arb 5 ____

Arbitrator’s AwardArb 1_YES_ Arb 2__NO_Arb 3_NO_ Arb 4_NO_

Arb 5 NO_

Panel’s Decision