Advice From an Experienced Labor Lawyer

labor law

By Ken Page, for

1. Collective worker and union power is better than arbitration
Collective worker and union power in the work space always has the most impact when resisting any form of employer abuse. It’s also the best tool to get the fairest results when a member faces disciplinary charges, or the union has a disagreement about the bosses’ incorrect implementation of broader contractual provisions.

Historically, labor fought hard for arbitration, a tool to help moderate employer behavior in the work place. But, it is important to note, the highly technical and bureaucratic nature of arbitration is usually not designed to consistently provide workers the fairest results.

2. If you have to use arbitration, step one is build trust with the members involved – and others
I have handled hundreds of arbitration's, always on the workers’ side – never management’s. These hearings have included both discipline arbitration's where the employer was seeking to impose some form of workplace punishment and other, more general grievances where there’s a dispute about some section of the collective bargaining agreement. In the first kind – the disciplinary kind – make sure that you meet with the union member(s) and create a space that allows for open and honest exchange. Immediately file any grievance documents or other paperwork and pay close attention to any timelines your contract sets. As the steward, you want the member(s) involved to feel that the union will listen patiently and provide sound, objective advice. After meeting and getting all the details from the member, the broader investigation into the facts will guide your next steps.

3. Do a thorough investigation – as fast as possible
It is critical to the entire process that the union fully investigate all events leading up to any dispute – whether it’s management imposing unwarranted discipline or when a union activist finds contract violations or workplace safety issues.

Time matters: it’s important that the investigation happen as quickly as possible, especially if there are any independent witnesses who might know any facts, details and issues surrounding an arbitration:

First, identify and talk to witnesses as soon as possible. Try to get a detailed, written statement. Usually this means you interview the person, take really good notes, and then write it up for them to review, but it’s also okay if they write it and you review it. Either way, it’s important that they read it carefully, make any changes they need to, and then sign and date each sheet of the statement.

Second, you should also determine what else – like documentary or physical evidence – will help your case. That might include photographs, videos, or audio; a copy of work rules or procedures; any incident reports (filed with the employer, with government agencies, with law enforcement); any relevant contract provisions and previous arbitration decisions (that might deal with similar facts and issues). Often, your union lawyer can help with the last.

Keep excellent notes, take pictures where allowed and appropriate, keep as many of your colleagues in the loop as you can (you might need a communications chain, like a phone tree or a text function, you might want a secure website to send updates, or you might just make a point of talking to everyone you can – it depends on your workplace, its size, your culture, etc.)

4. In discipline cases make sure members know to ask for a representative – this varies by country

In both countries: In the process leading to potential discipline, the boss often asks the worker to attend a meeting before deciding whether to institute discipline. Members must affirmatively assert their desire (in the US, it’s a right) to have union representation in any meeting with the boss that could lead to discipline.

The employer has no obligation to allow representation unless the member asks for it. That’s why it’s so important that all workers know they need to ask.

In the US: these rights are known as “Weingarten rights” and generally apply in both the public and private sector. Never assume members know about their Weingarten rights and their responsibility to request representation.

Once, I represented a unit of lawyers – and was shocked to learn they often were not aware of their own Weingarten rights and, of course, were participating in meetings without a Steward or union leader. Even lawyers need to know their rights!  

In Canada: Unlike Weingarten rights in the United States, Canadian law does not guarantee workers the right to union steward representation in investigatory interviews. However, most Canadian collective bargaining agreements do. If there is such a provision the contract, the boss must inform employees of their right to have a shop steward present at least 24 hours prior to the interview. Workers who choose to waive their right to union representation generally must do so in writing. If the employee has not waived his or her right to union representation and the interview takes place without a union steward present, any discipline resulting from of information gathered at the interview will be overturned as void during arbitration.

 Ken Page is a labor attorney who has represented unions and their members for more than two decades. He currently works as the Research, Communications and Training Director at Local 21 IFPTE in San Francisco. Previously he was General Counsel of IUE-CWA in Ohio and Legal Director at TWU Local 100 in New York City.

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