Labor Handbook
Labor Handbook
Labor Handbook
November
2009
Employee
Relations,
Classification
and
Compensation
Office
of
Human
Resources
Oregon
State
University
TABLE
OF
CONTENTS
Labor
Relations:
An
Overview
................................................................................................................
2
The
Role
of
the
Supervisor
.....................................................................................................................
2
What
is
a
Collective
Bargaining
Agreement
(CBA)?
...............................................................................
3
Management
Rights
........................................................................................................................
4
Enforce
Standards,
Laws
and
Model
Behavior
......................................................................................
5
Documentation
......................................................................................................................................
5
Supervisory
Files
....................................................................................................................................
6
Formal
Letters
of
Deficiency
..................................................................................................................
6
Exercise:
Notes
from
a
Supervisors
File
.........................................................................................
10
Exercise:
Writing
a
Letter
of
Reprimmand
......................................................................................
15
The
Purpose
of
Discipline
......................................................................................................................
17
Grounds
for
Discipline
.....................................................................................................................
17
Progressive
Discipline
......................................................................................................................
17
Just
Cause:
Setting
the
Stage
for
Progressive
Discipline
.........................................................
18
Due
Process
.............................................................................................................................
19
Union
Representation
and
Weingarten
Rights
.......................................................................
19
Standard
of
Proof
....................................................................................................................
20
Just
and
Proper
Cause
for
Disciplining
an
Employee:
The
Seven
Tests
...........................................
20
Management
Insight
on
Contract
Arbitration
(Exhibit)
........................................................................
23
Imposing
Discipline
................................................................................................................................
25
Case
Studies
to
Explore
..........................................................................................................................
27
Oregon
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Employee
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November
2009
1
Learning
Objectives
supervisor
in
a
union
environment.
To
write
and
maintain
proper
documentation
of
employee
performance.
To
write
appropriate
counseling
memos
and
letters
of
reprimand.
To
understand
progressive
discipline
and
properly
apply
laws
and
bargaining
agreements.
To
access
the
employee
and
labor
relations
resources
of
OSU.
Achieving
and
sustaining
this
ideal
state
does
not
always
occur;
and
some
might
argue,
never
fully
happens.
Employees
do
not
always
meet
expectations,
conflict
and
other
factors
challenge
group
dynamics,
laws
and
other
compliance
issues
exist,
and
sometimes
managers
and
supervisors
do
not
lead
or
address
a
given
situation
well.
The
domain
of
labor
relations
exists
in
a
dynamic
environment.
While
the
preference
of
managers
and
supervisors
is
to
lead
emphasizing
the
upside,
they
also
need
to
understand
their
responsibilities
and
be
able
to
address
the
downside.
The
module
on
labor
relations
will
focus
on
what
managers
and
supervisors
need
to
know
and
do,
particularly
when
there
are
performance
issues.
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2009
2
The supervisor has multiple responsibilities. The role of the supervisor includes the following:
To
effectively
administer
the
CBA,
it
is
incumbent
upon
management
to
read
and
know
what
is
in
the
agreement.
The
OUS
website:
http://www.ous.edu/dept/finadmin/labor.php
posts
current
contracts.
If
you
supervise
employees
in
either
of
the
two
unions,
it
is
necessary
to
familiarize
yourself
with
the
respective
contract.
Please
contact
the
ERCC
if
you
have
questions
about
contract
application
or
interpretation.
Management
Rights
The
rights
reserved
for
management
are
often
short,
concise
and
yet
very
powerful.
They
give
management
the
authority
to
conduct
business
and
direct
the
actions
of
the
employees
to
accomplish
the
business
objectives.
To
illustrate,
SEIU
contract
Article
9
reads
as
follows:
Except
as
may
be
specifically
modified
by
a
specific
term
of
this
Agreement,
the
Employer
shall
retain
all
rights
related
to
management
in
the
direction
of
its
operations,
resources,
facilities
and
services
including
the
direction
of
the
work
force.
Rights
of
the
Employer
shall
include,
but
not
be
limited
to,
the
right
to:
a)
b)
c)
d)
e)
f)
g)
h)
When
issues
arise
in
the
workplace
or
between
a
supervisor
and
employee,
a
typical
statement
or
argument
that
is
regularly
heard
is,
Show
me
in
the
contract
where
you
(management)
have
the
right
to
do
X.
However,
a
more
appropriate
question
is,
Where
in
the
contract
does
it
state
that
management
cannot
do
X?
To
effectively
manage,
a
supervisor
not
only
needs
to
understand
the
rights
reserved
for
management,
but
also
needs
to
understand
employee
rights.
Reading
and
familiarizing
yourself
with
the
contract(s)
is
the
starting
point.
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4
Documentation
Occasionally,
an
employees
inappropriate
conduct
or
unsatisfactory
performance
will
require
the
manager
to
address
these
issues
in
an
objective
manner.
In
some
instances,
an
employee
is
unable
or
unwilling
to
correct
his/her
behavior
or
performance.
In
these
instances
formal
disciplinary
action
may
be
necessary.
If
we
are
going
to
impose
discipline,
it
is
critical
that
we
have
documentation
to
substantiate
that
an
employee
was
advised
that
her/his
behavior
or
performance
is
not
acceptable
and
what
improvement
is
needed.
The
following
questions
will
clearly
be
answered
by
good
documentation:
What
are
the
performance
or
behavioral
expectations
of
the
position?
What
and
when
policies,
procedures,
or
guidelines
have
been
communicated?
How
are
expectations,
procedures,
etc.
being
met
or
falling
short?
When
were
successes/complaints
shared
and
how
were
expectations
communicated?
What
is/was
the
impact
on
the
work/employee/work
unit?
How
did
you
address
the
situation?
What
are
your
follow-up
observations?
Are
the
notes
Im
keeping
objective
and
factual
or
based
on
my
opinion?
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2009
5
Supervisory
Files
Article
16,
Section
2
of
the
SEIU
contract
between
OUS
and
the
SEIU
provides:
(a)
Supervisors
may
keep
records
and/or
anecdotal
notes
on
subordinate
employees.
Employees
will
be
notified
if
a
supervisory
file
is
being
kept.
Supervisory
files
will
be
maintained
under
conditions
that
ensure
the
integrity
and
safe
keeping
of
the
files.
(b)
The
employee
may
inspect
the
supervisory
file
upon
reasonable
notice
to
the
supervisor.
Upon
employee
request,
a
copy
of
the
records
and
anecdotal
notes
within
the
file
will
be
provided.
(c)
At
the
employees
request,
rebuttal
documents
will
be
placed
in
the
supervisory
file.
(d)
If
the
employee
severs
his/her
employment
with
the
university,
the
supervisory
file
will
be
expunged.
If
the
employee
promotes,
transfers
or
demotes
within
the
university,
the
supervisory
file
will
be
retained
in
the
former
department
for
a
period
of
up
to
one
(1)
year
from
the
effective
date
of
such
action,
at
which
time
the
file
will
be
expunged.
Documentation
in
the
supervisors
file
needs
to
be
shared
with
the
employee
on
a
regular
basis.
It
is
incumbent
upon
the
supervisor
to
address
issues
in
a
timely
manner.
Employees
cannot
be
expected
to
improve
performance
if
they
have
not
been
put
on
notice
that
their
performance
is
not
meeting
expectations.
Employees
will
interpret
managements
absence
of
response
to
their
conduct
and
unsatisfactory
performance
as
accepting
the
conduct
as
permissible
and
performance
as
satisfactory.
Standards
are
what
you
allow.
If
you
are
giving
employees
permission
to
not
follow
rules
or
perform
to
standard
by
not
calling
attention
to
conduct
or
performance
that
does
not
meet
your
expectations,
the
employees
will
believe
that
they
are
meeting
your
standards.
The
behavior
or
substandard
performance
will
continue.
Material
in
the
supervisory
file
will
indicate
that
you
have
addressed
performance
and
conduct
issues
with
the
employee.
For
instance,
you
may
have
received
an
e-mail
from
a
customer
which
states
that
the
employee
did
not
provide
appropriate
service.
As
documentation
of
addressing
the
issue,
you
would
note
your
conversation
with
the
employee
regarding
this
situation
and
what
needs
to
be
done
differently
in
the
future.
Formal
Letters
of
Deficiency
At
some
point,
an
employees
performance
or
behavior
may
warrant
a
formal
letter
to
address
deficiencies.
This
could
be
a
letter
of
counsel
which
puts
the
employee
on
notice
that
his/her
performance
or
behavior
is
unacceptable
or
a
letter
of
reprimand
which
is
the
first
step
in
the
formal
discipline
process.
Although
the
letter
of
reprimand
is
considered
the
stronger
response,
both
types
of
letters
have
common
elements.
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The Audience
Pause
and
answer
the
following
question:
When
you
write
a
notice
of
deficiency,
who
are
the
various
audiences
to
whom
you
are
writing?
Notices
of
deficiency
are
written
to
communicate
to
a
variety
of
audiences.
These
include:
The
employee.
You
will
want
to
document
that
the
employee
has
been
clearly
advised
that
his/her
performance
is
not
acceptable
and
what
your
expectations
for
successful
performance
entails.
The
employees
representative
union.
We
want
to
ensure
that
the
union
understands
managements
perspective
on
the
situation.
Other
levels
of
management
or
a
future
supervisor
NOTE:
Always
talk
to
the
employee
who
may
review
the
material.
prior
to
issuing
a
letter
of
caution
or
Third
party
reviewers
such
as
an
arbitrator.
Arbitrators
written
reprimand.
Talking
to
them
will
not
know
the
facts
or
the
context
helps
put
the
letter
in
context.
on
which
to
judge
them
other
than
what
is
communicated
in
the
documentation
being
reviewed.
Background:
This
section
contains
information
that
puts
the
facts
into
context
and
sets
the
stage
to
help
the
reader
understand
how
the
employee
knew
or
should
have
known
the
rule
or
standard
that
was
not
adhered
to.
This
section
might
include:
information
regarding
the
employees
duties;
length
of
service;
prior
training;
licenses
or
certifications;
relevant
policies,
procedures
or
guidelines;
prior
instances
of
the
same
or
similar
conduct;
prior
warnings
or
disciplinary
action;
and
other
descriptive
information
which
helps
the
reader
understand
the
context
of
the
situation.
The
background
also
brings
forward
those
necessary
elements
required
to
demonstrate
just
cause.
The
background
section
usually
will
be
the
first
paragraph
of
a
letter,
but
may
follow
the
supporting
facts
section.
Examples
of
paragraphs
in
the
background
section
include:
1. You
have
been
employed
(length
of
service
currently
in
the
position)
as
a
(position
or
title)
since
(date).
As
a
(position
or
title)
your
duties
include:
(duties
relevant
to
the
facts
for
which
the
employee
is
being
counseled
or
disciplined.)
[Inclusion
of
this
provides
information
about
the
employees
property
rights.]
2. On
(date),
you
received
a
copy
of
the
relevant
department
policy
(attach
copies
vs.
quoting
in
text).
Relevant
unwritten
policies
of
conduct
were
reviewed
(date).
[This
establishes
just
cause
standards.]
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3. On
or
about
(date)
you
were
advised
by
your
supervisor
to
(or
not
to)
do
(whatever).
[This
reviews
previous
expectations.]
4. As
a
licensed
(occupation)
you
are
aware
of
the
standards
for
conducting
(whatever).
[Provide
the
Information
which
would
have
reasonably
advised
the
employee
of
the
conduct
to
be
expected.]
5. In
a
counseling
memo
issued
(date)
you
were
advised
that
it
is
inappropriate
to
(or
not
to)
do
(whatever).
[Identify
any
previous
verbal
or
written
notification.]
Supporting Facts:
This
section
states
the
reasons
for
which
the
employee
is
being
counseled
or
disciplined.
The
facts
should
be
stated
clearly
and
succinctly.
This
section
might
include:
date,
time
and
location
of
incident
or
omission;
exactly
what
the
employee
did
or
did
not
do
to
warrant
discipline;
how
you
became
aware
of
these
facts;
and
the
impact
of
the
employees
action
or
omission.
Examples
of
paragraphs
in
the
supporting
facts
section
include:
1. At
(time)
on
(date)
I
observed
you
(doing
whatever).
2. On
(date)
you
failed
to
complete
(specific
assignment)
as
instructed.
Give
specifics
so
employee
can
identify
exactly
what
occurred
(name
of
customer/said).
3. In
a
telephone
conversation,
you
called
her
a
(specific
language
used).
When
I
talked
with
you
about
your
conversation,
you
agreed
you
lost
your
temper
and
said
(specific
language).
4. On
(date)
at
approximately
(time),
a
(name
of
equipment)
was
taken
from
the
shop.
(Name
of
witness)
states
that
she
observed
you
loading
the
(equipment)
in
your
car.
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Summary or Conclusion:
This
section
pulls
together
the
background
and
supporting
facts,
in
addition
to
other
information
such
as
mitigating
circumstances
or
the
employees
rebuttal
of
the
facts,
to
articulate
why
the
employee
was
fault
worthy
and
counseling
or
discipline
is
appropriate.
This
section
might
include:
Information
obtained
from
collateral
sources;
a
brief
response
to
the
employees
rebuttal;
reasoning
as
to
why
you
conclude
the
employee
is
fault
worthy;
and
mitigating
or
aggravating
circumstances.
1.
After
considering
all
information
presented,
I
find
that
you
did
(whatever)
in
violation
of
department
policy.
2.
I
find
the
statements
of
(witnesses)
credible
and
conclude
that
you
knew
doing
(whatever)
was
inappropriate.
3.
I
have
considered
your
statement
that
(whatever),
but
do
not
find
these
facts
to
mitigate
the
inappropriateness
of
your
actions.
Action
Taken:
This
section
describes
why
the
conduct
warrants
discipline
and
informs
the
employee
that
you
are
imposing
discipline
or
issuing
a
warning.
It
will
also
include
the
consequences
of
continued
unsatisfactory
performance
or
conduct.
This
section
is
sometimes
combined
with
the
Conclusion
section.
Employees
Signature:
This
section
confirms
that
the
issues
have
been
discussed
with
the
employee
and
he/she
has
received
a
copy
of
the
notice.
The
following
represent
24
different
notes
from
a
supervisors
file
regarding
an
employee
by
the
name
of
Tom
over
a
4
month
period.
The
majority
of
these
notes
are
not
written
well.
First,
scan
all
of
the
notes
to
get
a
picture
of
the
performance
issues.
Secondly,
recognize
that
a
supervisors
role
includes
well
documented
notes
in
the
event
of
poor
performance
to
build
a
strong
case
for
appropriate
disciplinary
action.
Poorly
written
or
incomplete
notes
may
readily
slow
the
progressive
discipline
process
because
youll
be
asked
to
take
the
steps
you
missed
or
did
poorly.
In
this
first
exercise,
determine
which
notes
are
written
well
or
poorly.
For
those
you
determine
to
be
poorly
written,
how
would
you
write
them
differently?
It
may
be
useful
to
scan
all
of
the
notes
to
get
a
picture
of
the
performance
issues.
Thirdly,
if
you
had
to
rewrite
these
notes,
what
would
you
do
differently?
Comments
about
the
first
10
notes
are
highlighted.
A
good
set
of
notes
will
cover
the
factual
information
and
include:
The
date
of
the
note,
What
happened,
Who
was
involved,
When
did
the
incident
occur,
What
transpired
in
the
meeting
discussing
the
incident,
and
What
should
happen
going
forward.
Exercise
1. Counseled
Tom
extensively
on
1/15/2009
1. Improve
memo
by
documenting:
concerning
his
attendance
and
rude
behavior.
The
time
frame
and
type
of
attendance
issues.
Provided
my
expectations
of
attendance
and
my
What
constitutes
rude
behavior,
to
whom
and
expectation
that
Tom
be
respectful,
positive
and
when
have
these
incidents
occurred?
encouraging
to
others
in
the
workplace.
The
specific
expectations
of
attendance
and
behavior
should
be
included.
If
these
are
on
Gave
Tom
a
list
of
his
leave
usage
and
reminded
another
handout,
a
reference
of
this
handout
should
be
noted.
him
that
any
sick
leave
without
pay
would
be
unauthorized
subject
to
discussion.
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7. 3/9/2009
-
Complimented
Tom
on
the
good
work
he
did
on
the
equipment
inventory.
Also
told
Tom
to
try
and
work
on
Prof.
Jones
project.
8. 3/11/2009
-
Tom
took
truck
into
town
to
purchase
widget.
Was
gone
3
hours.
Plenty
of
widgets
in
supply
cabinet.
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11
9. 3/14/2009
-
Counseled
Tom
to
check
supply
cabinet
before
going
in
to
town
to
purchase
supplies.
Also
counseled
him
on
poor
attitude.
referenced.
Specific
information
about
what
behaviors
constitute
the
poor
attitude.
When
did
the
poor
attitude
occur?
Referencing
that
this
is
a
continuing
issue
would
be
helpful.
11. 3/15/2009
-
Talked
with
Tom
about
failing
to
follow
attendance
standards,
i.e,
requirement
to
inform
me
or
Sally
if
need
to
leave
work
sick.
Will
issue
a
letter
of
caution.
12. 3/19/2009
-
Asked
Tom
how
he
was
coming
with
Prof.
Joness
project.
Said
he
should
be
able
to
start
it
next
week.
13. 3/21/2009
-
Prof.
Smith
said
went
into
shop
to
seek
help
and
Tom
was
playing
games
on
the
computer.
Tom
seemed
irritated
that
Prof.
Smith
was
interrupting
him.
11.
12.
13.
14.
15.
Oregon
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12
16.
17.
18. 4/10/2009
-
Received
voice
mail
from
Tom
that
he
is
sick.
18.
19.
20.
21.
22.
23.
24.
Oregon
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13
Good documentation
takes
time,
but
will
ultimately
save
time
if
progressive
discipline
advances,
particularly
in
establishing
a
case
for
termination.
The
documentation
demonstrates
the
steps
the
supervisor
has
taken
to
help
the
employee
correct
behavior
and
improve
performance.
While
most
employees
will
respond,
a
few
will
result
in
termination.
Oregon
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14
Because
of
Toms
lack
of
improvement,
a
letter
of
reprimand
is
written
to
be
given
and
discussed
with
him.
In
reviewing
the
draft
letter
below
you
realize
it
is
written
poorly
and
needs
to
be
redone.
Based
upon
what
youve
learned
in
this
section,
what
changes
would
you
make
and
how
would
you
rewrite
this
letter?
Letter
#1:
Poorly
Written
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15
Oregon
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2009
16
The
cause
for
discipline
may
be
a
single
flagrant
act
or
a
series
of
lesser
offenses
constituting
one
or
more
of
the
following
grounds:
Misconduct:
Inefficiency:
Incompetence:
Insubordination:
Refusal
to
obey
a
lawful
order
or
directive,
such
as
willful
or
repeated
violations
of
a
rule,
policy
or
procedure,
the
refusal
to
perform
work
assigned
or
the
refusal
to
comply
with
written
or
oral
supervisory
instructions,
and
the
employee
knows
the
consequences
for
the
failure
to
comply.
Indolence:
Malfeasance:
Other
Unfitness
Any
other
employee
conduct,
quality
or
condition
which
tends
to
obstruct
an
to
Render
agency
in
fulfillment
of
its
mission
or
that
justifies
the
agency
in
questioning
Effective
Service:
whether
it
should
continue
to
employ
the
employee,
such
as
state
of
health,
personality
traits,
personal
habits
or
behavior,
which
adversely
affect
work
performance.
Progressive
Discipline
The
University
utilizes
a
system
of
progressive
discipline
which
is
a
series
of
increasingly
stringent
disciplinary
actions.
This
process
is
designed
to
provide
a
consistent
manner
for
a
supervisor
to
address
unsatisfactory
performance
or
inappropriate
conduct.
The
established
steps
in
a
progressive
disciplinary
process
are
not
always
rigidly
followed.
The
circumstances
of
a
particular
situation
may
outweigh
the
normal
progression.
For
example,
a
manager
would
not
issue
a
letter
of
counsel
for
theft
or
workplace
violence.
Please
consult
with
ERCC
to
determine
the
appropriate
level
of
disciplinary
action.
Oregon
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17
Just
Cause
Setting
the
Stage
for
Progressive
Discipline
DISMISSAL
Action
is
taken
by
OHR
DEMOTION
ECONOMIC
SANCTION
WRITTEN
REPRIMAND
Official
first
step
of
discipline
Action
taken
by
supervisor;
consult
OHR
or
BC
LETTER
OF
COUNSEL
OR
CONVERSATION
&
PRE-DISCIPLINARY
CONVERSATION
EXPECTATIONS
Policies,
position
descriptions,
written
expectations,
goals,
mission,
performance
standards
Action
taken
by
supervisor;
consult
OHR
or
BC
Expected
practice
by
supervisor
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Due
Process
Oregon
State
University
is
a
public
employer
and
must
provide
due
process
to
employees.
Following
the
principles
outlined
in
progressive
discipline
is
a
significant
component
of
due
process.
This
section
will
illustrate
the
rights
of
representation
and
standard
of
proof.
Rights . . .
LABOR
CRIMINAL
Representation. . .
WEINGARTEN
MIRANDA
Standard of Proof . . .
PREPONDERANCE
(51%)
CLEAR
&
CONVINCING
(70-80%)
BEYOND
REASONABLE
DOUBT
(99.9%)
When
a
represented
employee
is
being
investigated
and
the
investigation
may
lead
to
discipline,
the
employee
is
entitled
to
representation
by
a
union
representative.
This
is
referred
to
as
Weingarten
Rights.
The
employer
needs
to
put
the
employee
on
notice
that
the
meeting
may
be
disciplinary
and
they
have
the
option
to
have
a
union
representative
present.
The
employee
needs
to
affirmatively
request
their
rights.
The
representation
applies
only
to
the
employee
being
investigated.
Therefore,
if
you
are
interviewing
other
parties
about
a
particular
situation,
but
they
are
not
the
subject
of
the
investigation,
then
they
are
not
entitled
to
representation.
However,
if
in
questioning
an
employee
not
currently
under
investigation
the
employee
says
something
that
leads
you
to
believe
that
the
employee
may
be
involved,
then
you
are
required
to
stop
the
meeting,
inform
the
employee
of
the
right
to
be
represented
and
schedule
a
new
time
to
investigate
the
employees
potential
involvement.
Weingarten
rights
only
apply
to
situations
that
may
lead
to
potential
discipline.
A
supervisors
role
of
directing,
assigning,
giving
feedback,
counseling,
or
conducting
performance
reviews,
as
examples,
are
not
disciplinary
actions.
However,
there
is
nothing
wrong
if
a
supervisor
errors
on
allowing
unnessary
representation
to
an
employee.
The
role
of
the
union
representative
is
not
to
answer
the
questions
you
have
of
the
employee.
They
may
help
clarify
the
process,
suggest
certain
questions
be
asked,
suggest
questions
be
asked
to
clarify
previous
answers,
suggest
specific
witnesses
be
interviewed
or
other
resources
be
considered.
The
role
of
the
union
representative
is
further
defined
on
Page
21,
entitled
Management
Insight.
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19
Standard
of
Proof
The
standard
of
proof
required
in
order
to
take
disciplinary
action
is
a
preponderance
of
evidence
or
51%.
Recognize
that
51%
is
not
a
very
strong
case.
A
much
stronger
case
is
one
in
which
there
is
clear
and
convincing
evidence
or
70-80%
evidence
that
the
employees
actions
were
wrong.
In
some
situations,
there
may
be
evidence
of
criminal
behavior,
i.e.
theft.
In
such
a
case,
the
investigation
conducted
by
the
police
is
done
separately
from
an
internal
investigation.
The
rights
and
standard
for
evidence
in
a
criminal
matter
is
different
from
a
labor
issue.
Immediately
contact
an
OHR
employee
relations
representative
to
assist
you
if
such
a
situation
arises.
1.
Did
the
agency
give
the
employee
forewarning
or
foreknowledge
of
the
possible
or
probable
disciplinary
consequences
of
the
employees
conduct?
Note
A:
Forewarning
or
foreknowledge
may
properly
have
been
given
orally
by
management
or
in
writing
through
the
medium
of
typed
or
printed
sheets
or
books
of
shop
rules
and
penalties
for
violation
thereof.
Note
B:
There
must
have
been
actual
oral
or
written
communication
of
the
rules
and
penalties
to
the
employee.
Note
C:
A
finding
of
lack
of
such
communication
does
not
in
all
cases
require
a
no
answer
to
question
number
one.
Certain
offenses,
such
as
insubordination,
coming
to
work
intoxicated,
drinking
intoxicating
beverages
on
the
job,
or
theft
of
the
property
of
the
company
or
of
fellow
employees,
are
so
serious
that
any
employee
in
the
industrial
society
may
properly
be
expected
to
know
already
that
such
conduct
is
offensive
and
heavily
punishable.
Note
D:
Absent
any
contractual
prohibition
or
restriction,
the
agency
has
the
right
unilaterally
to
promulgate
reasonable
rules
and
issue
reasonable
orders,
and
same
need
not
have
been
negotiated
with
the
union.
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2.
Was
the
agencys
rule
or
managerial
order
reasonably
related
to
the
orderly,
efficient,
or
safe
operation
of
the
business?
Note:
If
an
employee
believes
that
the
rule
or
order
is
unreasonable,
s/he
must
nevertheless
obey
it
(in
which
case
s/he
may
file
a
grievance
thereover)
unless
s/he
sincerely
feels
that
to
obey
the
rule
or
order
would
seriously
and
immediately
jeopardize
his
or
her
personal
safety.
Given
a
firm
finding
to
the
latter
effect,
the
employee
may
properly
be
said
to
have
had
justification
for
his
or
her
disobedience.
3.
Did
the
agency,
before
administering
discipline
to
an
employee,
make
an
effort
to
discover
whether
the
employee
did
in
fact
violate
or
disobey
a
rule
or
order
of
management?
Note
A:
The
agencys
investigation
must
normally
be
made
before
its
disciplinary
decision.
If
the
company
fails
to
do
so,
its
failure
may
not
normally
be
excused
on
the
ground
that
the
employee
will
get
his
or
her
day
in
court
through
the
grievance
procedure
about
the
exaction
of
discipline.
By
that
time,
it
is
generally
conceded
that
there
has
been
too
much
hardening
of
positions.
Note
B:
There
may
of
course
be
circumstances
under
which
management
must
react
immediately
to
the
employees
behavior.
In
such
cases
the
normally
proper
action
is
to
suspend
the
employee
pending
investigation,
with
the
understanding
that
(a)
the
final
disciplinary
decision
will
be
made
after
the
investigation
and
(b)
if
the
employee
is
found
innocent
after
the
investigation,
s/he
will
be
restored
to
his
or
her
job
with
full
pay
for
time
lost.
4. Was
the
agencys
investigation
conducted
fairly
and
objectively?
Note:
At
said
investigation,
the
management
official
may
be
both
prosecutor
and
judge
but
s/he
may
not
also
be
a
witness
against
the
employee.
5. At
the
investigation,
did
the
judge
obtain
substantial
evidence
or
proof
that
the
employee
was
guilty
as
charged?
Note:
It
is
not
required
that
the
evidence
be
conclusive,
or
beyond
reasonable
doubt.
But
the
evidence
must
be
truly
substantial
and
not
flimsy
or
slight.
6. Has
the
agency
applied
its
rules,
orders,
and
penalties
even-handedly
and
without
discrimination
to
all
employees?
Note
A:
A
no
answer
to
this
question
requires
a
finding
of
discrimination
and
warrants
negation
or
modification
of
the
discipline
imposed.
Note
B:
If
the
agency
has
been
lax
in
enforcing
its
rules
and
disorders
and
decides
henceforth
to
apply
them
rigorously,
the
agency
may
avoid
a
finding
of
discrimination
by
telling
all
employees
in
advance
of
its
intent
to
enforce
hereafter
all
rules
as
written.
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7. Was
the
degree
of
discipline
administered
by
the
agency
in
a
particular
case
reasonably
related
to
(a)
the
seriousness
of
the
employees
proven
offense
and
(b)
the
record
of
the
employee
in
his
or
her
service
with
the
agency?
Note
A:
A
trivial
proven
offense
does
not
merit
harsh
discipline
unless
the
employee
has
properly
been
found
guilty
of
the
same
offenses
a
number
of
times
in
the
past.
(There
is
no
rule
as
to
what
number
of
previous
offenses
constitutes
a
good,
a
fair,
or
a
bad
record.
Reasonable
judgment
thereon
must
be
used.)
Note
B:
An
employees
record
of
previous
offenses
may
never
be
used
to
discover
whether
s/he
was
guilty
of
the
immediate
or
most
recent
offense.
The
only
proper
use
of
his
or
her
record
is
to
help
determine
the
severity
of
discipline
once
s/he
has
properly
been
found
guilty
of
the
immediate
offense.
Note
C:
Given
the
same
proven
offense
for
two
or
more
employees,
their
respective
records
provide
the
only
proper
basis
for
discriminating
among
them
in
the
administration
of
discipline
for
said
offense.
Thus,
if
employee
As
record
is
significantly
better
than
those
of
employees
B,
C,
and
D,
the
agency
may
properly
give
a
lighter
punishment
than
it
gives
the
others
for
the
same
offense;
and
this
does
not
constitute
true
discrimination.
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22
MANAGEMENT INSIGHT
ON
CONTRACT ARBITRATION
PERSONNEL
&
LABOR
RELATIONS
DIVISION
-
RCP
SECTION
FURTHER EXPLANATION OF WEINGARTEN ROLE OF THE UNION REPRESENTATIVE DEFINED
The Washington County Police Officers Association charged that Washington Countys
Procedures Manual violated ORS 243.672(1) (a). These charges stemmed from the Sheriffs
Department instructions that a union representative could not actively participate in the
interview of an employee. In this case, the Department representative instructed the
employees union representative to remain silent and threatened to eject him from the
interview if he did not comply.
The Employment Relations Board ruled that union reps may ask clarifying questions, but
may not counsel employees on how or whether to answer the employers questions. The
Board defined the representatives role as follows:
1.
The representative may inquire, at the outset of the interview, regarding its
purpose, including inquiring about the general subject matter of the questioning to follow.
2.
During the questioning of the employee by the employer, the representative may participate
only to the extent of seeking clarification of questions.
3.
After the employer has completed the questioning of the employee, the representative may ask
the employee questions designed to clarify previous answers or to elicit further relevant
information.
4.
Before the end if the meeting, the representative may suggest to the employer other witnesses
to interview and may describe relevant practices, prior situations, or mitigating factors that
could have some bearing on the employers deliberations concerning discipline.
In applying these guidelines, the Board found that the County had violated ORS 243.672(1)
(a) in that its Procedures and instructions placed the union representative in a role of silent observer
in investigatory interviews.
The Board ordered the County to cease and desist from instructing the union representatives to be
silent during investigatory interviews. However, ERB refused to assess a civil penalty. The Board
noted that the County had attempted to comply with Weingarten and since this was the first case in
which the Board defined the role of the union representative, it should not be the basis for civil
penalty.
On reconsideration, the Board rejected the Associations contention that a representative
had a right to counsel the employee during an interview. The Board stated that if counseling
means consulting with an employee on how or whether to answer questions, the Board was
concerned that normal employee interviews would be changed into adversarial proceedings.
Oregon
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ERB noted that representation rights in a pre-grievance situation is permissible under ORS 243.662, but
is not required. In this case, ERB could not be guided by Weingarten since it came after the
establishment of ORS 243 (PECBA) in 1973. The Board felt that a greater or lesser role for union
representatives in investigatory interviews, beyond this opinion, were better left to collective bargaining.
However, the Board left the door open for it to establish other rules to protect employee representation
rights should there be a major change in general employer practices. Washington County Police Officers
Association v Washington County (UP-15-90) (Jan. 17, 1991) reconsidered (Jan. 31, 1991).
If you have any questions concerning the application of this Board ruling to your agency,
please contact your assigned Labor Relations Manager (378-3141).
3244N
Oregon
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2009
24
Imposing Discipline
1. Be
Impersonal
Focus
on
actions,
not
person.
2. Act
Immediately
If
no
response
from
supervisor,
employee
assumes
everything
must
be
OK.
Standards
are
what
you
tolerate.
If
not
addressed,
little
things
build
and
become
bigger
issues
when
finally
addressed.
If
it
is
a
broad-based
issue
when
finally
addressed,
then
address
as
such.
Do
not
discipline
first
employee
to
violate
unannounced
new
standard.
3. Be
Consistent
Do
not
give
mixed
signals.
Make
sure
the
employee
understands
what
has
happened.
Level
of
reaction
may
be
different
due
to
mitigation.
- Document
mitigation
to
protect
ability
to
take
future
action.
4. Be
Positive
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Instructions
Please
read
each
case
study
and
assume
that
youre
the
supervisor.
Then,
1) What
action
would
you
take
to
address
the
behavior
or
performance
issue(s)?
2) If
you
would
discipline,
what
are
the
grounds
for
this
course
of
action?
3) What
mitigating
circumstances
might
exist?
4) What
level
of
discipline
would
you
seek
or
impose?
5) Is
there
anything
in
the
case
study
that
might
raise
concerns
about
the
seven
tests
for
just
cause
being
met?
If
so,
what?
Case
#1
A
correctional
officer
has
been
discovered
sleeping
on
his
post.
He
was
so
sound
asleep
that
a
manager
was
able
to
unhook
the
officers
keys
from
a
loop
on
his
belt.
A
photograph
was
taken
of
the
employee
sleeping
with
his
feet
up
on
his
desk,
his
head
back
with
eyes
closed,
and
the
manager
standing
over
him
holding
the
keys.
The
employee
has
been
with
the
agency
for
4
years.
Although
he
has
always
received
satisfactory
performance
appraisals,
management
considers
him
a
goof
off.
Six
months
ago,
he
was
issued
a
Letter
of
Reprimand
for
engaging
in
horseplay
with
another
employee.
He
is
currently
on
a
work
plan
for
absences
and
lateness.
Discussion
notes:
Case #2
Susie
has
worked
for
you
for
3
years.
She
is
very
pleasant
and
well
liked
by
co-workers.
Her
duties
include
taking
telephone
messages
and
typing
correspondence
for
the
signature
of
the
department
head,
vice
provost,
and
occasionally
the
president.
She
does
not
report
telephone
messages
accurately.
She
transposes
digits
in
telephone
numbers
or
forgets
to
get
the
callers
number,
she
forgets
to
write
the
time
of
the
call,
and
occasionally
forgets
to
get
the
callers
name.
Although
this
has
been
a
recurring
problem,
the
frequency
of
her
mistakes
has
increased
during
the
past
year.
She
is
a
fast
typist,
but
makes
mistakes
in
grammar,
spelling,
punctuation
and
sentence
structure.
Occasionally
she
leaves
out
sentences
when
transcribing
documents.
Recently
she
omitted
an
entire
paragraph
in
a
letter
being
written
for
the
presidents
signature.
She
has
been
advised
Oregon
State
University
|
Employee
Relations,
Classification
&
Compensation,
November
2009
26
numerous
times
to
include
the
presidents
middle
initial
when
she
types
his
name.
She
forgets
to
do
this
about
half
the
time.
Most
of
these
problems
have
existed
since
she
was
hired.
You
felt,
however,
that
with
time
she
would
improve.
You
have
always
noted
these
problems
on
her
performance
evaluation,
but
have
given
her
satisfactory
ratings.
You
feel
that
giving
her
satisfactory
ratings
is
a
way
to
encourage
her.
Your
belief
is
that
giving
unsatisfactory
ratings
de-motivates
employees.
Discussion
notes:
Case
#3
This
employee
has
been
on
the
job
for
4
months
and
is
on
trial
service.
Previously
he
was
a
supervisor
for
12
years
in
private
industry.
His
position
was
eliminated
due
to
a
plant
closing.
He
is
resistive
to
taking
direction
and
often
tells
you
how
he
believes
things
should
be
done.
He
has
become
argumentative
on
several
occasions.
You
have
previously
counseled
him
about
his
behavior.
You
have
just
given
him
instructions
on
the
proper
procedure
to
follow
in
completion
of
an
assignment.
He
responds
by
telling
you
that
you
are
a
poor
supervisor
and
continues
to
do
the
task
as
he
wishes
in
violation
of
your
instruction.
Discussion
notes:
Case
#4
This
employee
has
worked
in
your
unit
for
15
years.
Although
No
Smoking
signs
are
posted
throughout
the
building,
he
has
been
observed
smoking
in
the
building
on
numerous
occasions.
During
the
past
6
months,
you
have
warned
him
on
6
or
7
occasions.
Three
weeks
ago,
you
observed
him
smoking
and
issued
a
Letter
of
Reprimand.
Two
other
employees
have
just
advised
you
that
they
saw
the
employee
smoking
in
the
building
earlier
today.
Discussion
notes:
Oregon
State
University
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Employee
Relations,
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&
Compensation,
November
2009
27
Case
#5
Carol,
an
Office
Specialist
1,
has
complained
to
you
several
times
about
being
overworked.
You
have
now
asked
her
to
stop
what
she
is
doing
and
to
type
a
document
that
the
department
head
needs
immediately.
Carol
refuses
to
do
it.
She
states
that
is
not
her
job
and
the
department
head
can
shove
it.
Discussion
notes:
Case
#6
This
employee
used
the
name,
birth
date,
and
social
security
number
of
a
student
employee
whom
she
supervises
to
apply
for
a
line
of
credit.
She
has
attempted
to
purchase
$700
worth
of
jewelry
with
the
line
of
credit.
Discussion
notes:
Case
#7
You
receive
a
telephone
call
from
Transportation
Services
informing
you
that
a
citizen
complained
that
a
university
vehicle
was
exceeding
the
speed
limit
on
I-5
in
Washington
State.
The
complaint
also
alleged
that
there
were
small
children
in
the
vehicle.
The
vehicle
was
checked
out
to
an
employee
in
your
department.
The
employee
in
question
was
on
vacation
at
the
time,
so
you
ask
Transportation
Services
to
double-check
their
records.
Transportation
Services
sends
you
a
copy
of
paperwork
which
shows
the
employees
signature.
Additionally,
you
find
that
your
signature,
authorizing
use
of
the
vehicle,
has
been
forged.
Discussion
notes:
Oregon
State
University
|
Employee
Relations,
Classification
&
Compensation,
November
2009
28
Case
#8
You
have
been
in
your
current
supervisory
position
for
about
6
months.
Diane
and
Jill
are
two
employees
in
your
department
who
do
not
get
along.
Diane
has
worked
for
the
department
for
6
years.
Jill
has
worked
in
the
office
for
about
2
years.
Each
believes
the
other
is
incompetent.
They
have
heated
arguments
on
occasion.
You
are
aware
that
animosity
between
the
two
has
existed
since
Jill
began
working
for
the
department.
The
previous
supervisor
attempted
to
resolve
the
issues
by
bringing
in
third
parties
to
facilitate
resolution
between
the
two
employees.
This
was
not
successful.
Jill
has
now
reported
to
you
that
Diane
has
pushed
her.
You
have
asked
each
to
provide
a
written
statement
of
the
incident.
Jills
version:
They
came
from
opposite
directions
around
a
blind
corner
and
stopped
within
a
foot
of
each
other.
Each
had
time
to
move
to
the
side.
However,
before
Jill
could
move
out
of
the
way,
Diane
crossed
her
arms
in
front
of
her
and
pushed
Jill.
Jill
had
to
catch
herself
on
the
cubicle
wall
to
avoid
falling.
Diane
then
said,
You
stopped
right
in
front
of
me.
Dianes
version:
They
came
from
opposite
directions
around
a
blind
corner.
Realizing
there
was
no
time
to
stop,
Diane
attempted
to
maneuver
to
the
side,
but
bumped
shoulders
with
Jill.
Jill
immediately
said
You
pushed
me.
Diane
said
You
stopped
in
front
of
me.
You
interview
other
workers
in
the
office,
but
no
one
witnessed
this
incident.
However,
one
employee
tells
you
that
Diane
has
previously
made
demeaning
remarks
about
Jill
including
calling
Jill
old
and
stupid.
Another
employee
tells
you
that
Diane
has
stated
that
she
doesnt
need
to
change
her
ways
to
accommodate
Jill.
None
of
the
other
employees
seem
to
be
taking
sides.
They
all
wish
both
Diane
and
Jill
would
start
behaving
appropriately.
Discussion
notes:
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State
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Employee
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November
2009
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There
will
be
times
in
which
a
represented
employee
feels
that
a
supervisor
erroneously
did
or
did
not
do
something
that
disadvantages
the
employee.
An
employee
needs
to
be
able
to
raise
the
issue
with
a
goal
of
getting
resolution.
A
formal,
written
grievance
procedure
exists
for
this
purpose.
In
the
SEIU
contract,
this
is
covered
in
Article
18.
The
purposes
of
a
grievance
procedure
include
the
following:
1. To
assure
employees
a
way
in
which
they
can
get
their
complaints
considered
rapidly,
fairly,
and
without
reprisal.
2. To
encourage
the
employees
to
express
how
the
conditions
of
work
affect
them
as
employees.
3. To
get
better
understanding
of
policies,
practices,
and
procedures
which
affect
employees.
4. To
instill
a
measure
of
confidence
in
employees
that
actions
are
taken
in
accord
with
policies.
5. To
provide
a
check
on
how
policies
are
carried
out
by
management.
6. To
give
supervisors
a
greater
sense
of
responsibility
in
their
dealings
with
employees.
Most
grievance
procedures
follow
specific
deadlines
to
help
ensure
that
grievances
are
timely
and
relevant.
As
an
unresolved
grievance
moves
up
the
process,
some
are
taken
to
arbitration
to
get
resolved.
As
a
supervisor,
if
an
employee
whom
you
supervise
files
a
grievance
against
you,
you
have
the
responsibility
to:
1. Continue
to
work
with
that
employee
in
a
fair
and
objective
manner
to
move
work
forward.
2. Not
retaliate
or
act
in
a
biased
manner
towards
that
employee.
3. Work
with
your
manager
and
the
Employee
Relations
group
in
OHR
to
provide
the
information
so
a
timely
response
can
be
made
to
the
grievance.
4. Recognize
that
the
employee
is
simply
exercising
their
right.
The
end
result
will
be
resolution
and
clarification
of
the
issue.
Oregon State University | Employee Relations, Classification & Compensation, November 2009 30