Fired for job abandonment

[ski or die]

As a retired steward, whenever their was a meeting with management and employee concerning possible discipline, after the meeting I would immediately make notes of the entire discussion for future possible disciplinary actions. Well aware of management not remembering or altering the discussion facts. I would be very afraid if Mug was my steward. I always fought for my fellow employees. Using any Article that I could. If the employee was in the wrong I would discuss it with him to see further options. If employee wanted to pursue it I would do my very best to protect the employee. There were very few grievances that we lost in panel. Most cases we were able to resolve with management through reasonable discussions. The statements Mug made in this discussion makes me wonder which side of the fence he is standing on.

 

[zubenelgenubi]

As a retired steward, whenever their was a meeting with management and employee concerning possible discipline, after the meeting I would immediately make notes of the entire discussion for future possible disciplinary actions. Well aware of management not remembering or altering the discussion facts. I would be very afraid if Mug was my steward. I always fought for my fellow employees. Using any Article that I could. If the employee was in the wrong I would discuss it with him to see further options. If employee wanted to pursue it I would do my very best to protect the employee. There were very few grievances that we lost in panel. Most cases we were able to resolve with management through reasonable discussions. The statements Mug made in this discussion makes me wonder which side of the fence he is standing on.

Thank you! I thought I was the only one. I've never heard of a TIYS specialist, I can't find any mention of that position anywhere, all specialist positions for UPS that I've seen listed appear to be management.

But he also mentioned a Federal District Court Review that has survived post 1997 as being inclusive.

He also went on to say "The Arbitrator is not convinced that the pre-1997 awards upholding the inclusive theory of cardinal sins should be disregarded. Negotiations evidence involving a proposed term for a contract is not always conclusive evidence of the contract's intent if the proposed term is rejected. Sometimes such proposals are merely designated to clarify existing provisions of a contract.



How about the Federal District Court Review, post 1997, that did the same thing?

So now I'm wrong, the Arbitrator is wrong and the District Court Review is wrong.

I'm not out for right or wrong, UPS did what they did. And this arbitrator agreed that UPS is correct in determining that the Cardinal Sins are inclusive.



Apparently, the Federal District Court Review agreed with the Arbitrator, or the Arbitrator agreed with the Federal District Court, which ever way, so maybe he is not the one that is wrong.



I agree that he did not get a warning, but your whole premise was that he had planned on coming back to work the following day, so he did not abandon his job. Or that it was not a Cardinal Sin.

This decision did not even consider whether the grievant had intended to come back to work the next day or not. He left and was terminated.

That is why I agreed with everyone that he would be back. He was not told to stay, specifically, and then left. But he did leave without being told that he could leave. Gray area, yes. Within UPS' rights, yes, within the gray area.

I used this example for 2 reasons.

1. It shows that "some" Arbitrators and Federal Court Reviews consider the CBA Cardinal Sins inclusive, not exclusive. Meaning that you can be immediately terminated for offenses outside of the list of Cardinal Sins.

2. It shows that an employee can be terminated for job abandonment.

I also acknowledge that some Arbitrators agree on exclusivity.

You willing to gamble on which Arbitrator you may end up getting?



I strongly agree.

Keep reading these decisions. What I learned from all of these was well worth my time reading them.

Somehow I thought you'd fixate on my stated disagreement with the decision and reasons for such. That was simply my opinion, and would not be something I would try to build a case on. I do think it is a dangerous precedent that an arbitrator can just choose to disregard parts of terms that two parties agreed to. I don't know the specifics of the case he used to base his decision on, so I would need to look into that before commenting further, but the Union really needs to spend some resources on getting these kinds of decisions overturned, even if they need to go the legislative route.

The truth is that the facts of these two cases are not the same, in the summary the grievant was being told to start his work and was warned that if he didn't it would be considered job abandonment. In our case, the OP was done with his work and told to shut down. The directions were ambiguous, and he should have sought clarification, for which he should be given a warning, not terminated. You are trying to argue that he was leaving because he felt like it, and in defiance of direct orders, which I demonstrated, based on the provided information, was not the case.

To say that the company can just pick and choose what they think is a cardinal sin, or misrepresent the facts of the case to make it seem like a cardinal sin was committed is dangerous for the labor force, and should be fought tooth and nail. Under your reasoning if I glanced sideways at a manager, and he felt the look was threatening they would be justified in terminating me for the cardinal sin of workplace violence.

But in my hypothetical, and in this case, intent does matter, otherwise there is absolutely nothing stopping the company from interpreting any action of an employee as a cardinal sin, especially if the list is considered to be inclusive. It's reasonable to say that such a situation is a complete abortion of fairness and untenable.

 

[Mugarolla]

Well aware of management not remembering or altering the discussion facts. I would be very afraid if Mug was my steward.

What does your short term memory have to do with what we are discussing?

The OP clocked out and left without any approval. What are you going to write down?

. I always fought for my fellow employees.

As do I.

Most cases we were able to resolve with management through reasonable discussions.

OK. The issue here is that some people think that the reasonable discussion with management should be that the OP did nothing wrong. He cannot be fired for job abandonment, he is being retaliated against because of his disabilty, this was not a Cardinal Sin.

Remind you of anyone on here?

Good luck with that.

The reasonable discusson is what I pointed out and people like you don't seem to like.

The reasonable discussion is that the OP made a mistake. That we realize it may look like job abandonment, but that is not what the OP intended.

We realize that job abandonment is a serious issue, but this was a misunderstanding.

He thought it was alright ro leave, as he has done in the past, but from now on he will check with his sup before leaving.

That is a reasonable discussion. And guess what? That is what puts him back to work on the spot.

Most cases we were able to resolve with management through reasonable discussions. The statements Mug made in this discussion makes me wonder which side of the fence he is standing on.

In order to resolve these cases, you must know both sides. You must realize that what the grievant did may have been a contractual violation

Just because I point out to a bunch of anonymous posters on an Internet chat forum that the OP was the one in the wrong, doesn't mean that I wouldn't get him back to work.

He would have been back the next day.

I point these things out for you to see the other side of every arguement.

You need to admit to yourself and the grievant that he may be in the wrong.

@2033, by his or her statements would take the position that the employee did nothing wrong, violated no CBA articles and was singled out because he was disabled.

Any Steward on this forum knows that taking that stance will not win any cases, only prolong the time off for the grievant.

That is why people like @BigUnionGuy have a job, some Stewards who have no idea what they are doing.

 

[Mugarolla]

or misrepresent the facts of the case

Seriously?

No facts here were misrepresented.

The OP admitted he screwed up and should have checked with a sup.

I sure hope you're not a Steward, because you have a lot to learn.

You need to admit that the grievant may be in the wrong and the company may be in the right in order to argue a case and get someone back to work.

But you will never admit that.

 

[zubenelgenubi]

Seriously?

No facts here were misrepresented.

The OP admitted he screwed up and should have checked with a sup.

I sure hope you're not a Steward, because you have a lot to learn.

You need to admit that the grievant may be in the wrong and the company may be in the right in order to argue a case and get someone back to work.

But you will never admit that.

You are consistently misrepresenting my arguments, also known as straw man fallacy. I only argued that he did nothing wrong if past practices could be established. You claim that past practices are dificult to prove, but many of the cases in the judgment summary were able to successfully argue it, so I'm not convinced it's that difficult, but I'll concede that it may not always be the best defense to take. This case stands on its own merits, without needing to bring past practices into it. The NMA requires that the company follow ADA, and even if it didn't, the ADA requires the company to follow ADA. The fact that OP was in process of getting official accomodation certainly makes the timing of this case suspicious. Still, wouldn't even need to bring that into it either.

And I agreed that he screwed up and should have checked. I also take the position that, based on the facts of the case, his actions were not terminable, which is where we disagree. Meaning you agree with management (i.e. taking their side) and I am taking the side of the employee, which is what I would do in any case I might represent, which is how representation works. If I felt there was no case to be made, I would inform the employee of that and work from there. The only way your methods are at all helpful to an employee, assuming anyone would let you represent them, would be the argument after the case was lost that you failed to provide adequate representation, so the case would qualify for judicial review.

I do thank you for giving me the motivation to research this subject and reinforce the fact that my understanding of the process is much better than you have been trying to convince me it is.

And I would absolutely never admit that the company was right in a case as clear cut as this one. Doing so would be a failure of proper representation.

 

[UpsAngel]

*opened a can of worms*
*sits back watches show*

 

[zubenelgenubi]

*opened a can of worms*
*sits back watches show*

Do you feel like you understand your rights and responsibilities better now? If so, it was all worth it. Glad you got your job back. What are the terms of your reinstatement? If you don't mind my asking. Did they make the termination go away, or are you on a "last chance" reinstatement?

 

[Mugarolla]

You are consistently misrepresenting my arguments, also known as straw man fallacy.

Really?

Your arguments kept changing with every post.

And an Arbitration case contradicted almost everything you said.

Look...

If a new manager wants to run things differently, then they must start with a verbal warning, and progress through discipline.

It sounds to me like they did not want to accomodate you anymore, and were looking for any excuse to get rid of you.

So progressive discipline is out, let alone termination.

In further researching "job abandonment", the term generally refers to no-call no-show situations

The fact that the contract does not state that clocking out without checking with management is terminable

Job abandonment simply means that a person has left the job with no intention of returning without telling anyone.

The OP obviously intended to return to the job on the next scheduled day (since he did), so not job abandonment,

What he (male according to his profile, currently) did was more akin to tardiness in material fact.

It's actually less serious an offense since we have scheduled start times, and no scheduled end times.

I feel confident that a phone call would have gotten the OP back to work and sorted out any misunderstanding there may have been without needing to resort to going immediately to termination.

The fact that they went straight to termination, in this case, suggests that management was more worried about the accommodation issues than about treating an employee fairly.

Not nearly as big a deal as the management is trying to trump it up to be, and certainly not grounds for immediate termination.

I realize, based on the provided information up to the point of my original argument, that we don't know if the supervisor would have said it was ok to leave or not had the OP asked.

Well, at least they tried to hide the fact that you were being singled out. Or were the other 4 production liabilities too?

It actually is contractually required.

Clocking out early is not mentioned in the list of offenses eligible for termination without a warning letter.

And I agreed that he screwed up and should have checked.

I also take the position that, based on the facts of the case, his actions were not terminable

Wow.
-
-
-
-
-
-

Meaning you agree with management

I pointed out the repercussions that came upon the OP based on the CBA.

and I am taking the side of the employee

Does that make you right?

Even if management is right and the employee is wrong, which I do not have a problem admitting when it is true, but you obviously do, that won't stop me from getting an employee back to work as soon as possible.

And when you do it long enough, it usually gets the employee back quicker.

If his BA took your defense arguments, he would still be off.

*opened a can of worms*
*sits back watches show*

Fun, isn't it.

 

[zubenelgenubi]

Really?

Your arguments kept changing with every post.

And an Arbitration case contradicted almost everything you said.

Look...







































Wow.
-
-
-
-
-
-


I pointed out the repercussions that came upon the OP based on the CBA.



Does that make you right?

Even if management is right and the employee is wrong, which I do not have a problem admitting when it is true, but you obviously do, that won't stop me from getting an employee back to work as soon as possible.

And when you do it long enough, it usually gets the employee back quicker.

If his BA took your defense arguments, he would still be off.



Fun, isn't it.

Since you introduced zero evidence of my argument changing (and there is no evidence to be found), it is unnecessary for me to address your nonsensical claim. I will say you obviously don't understand conditional arguments. Let me, instead, ask you this, in a case like this one, under what terms would you get an employee reinstated? Or should I be asking, under what terms would you be allowing an employee to return to work?

 

[Mugarolla]

Since you introduced zero evidence of my argument changing (and there is no evidence to be found), it is unnecessary for me to address your nonsensical claim. I will say you obviously don't understand conditional arguments. Let me, instead, ask you this, in a case like this one, under what terms would you get an employee reinstated? Or should I be asking, under what terms would you be allowing an employee to return to work?

I already mentioned in a previous post how a Steward would get the employee reinstated immediately.

You seem to have a good mind for this kind of stuff, but you have to remember, a grievance panel is nothing like a court. With time and experience...I'll leave it at that.

When dealing with management, you have to...

know when to bluff
know when to stoke their egos
know when to beg

Push them too far or too hard, they send it to the State Panel. Grievant off for another 2 or 3 weeks with little chance of back pay.

You want to gamble with a grievant's livelihood? Go ahead. I won't.

 

[zubenelgenubi]

I already mentioned in a previous post how a Steward would get the employee reinstated immediately.

You seem to have a good mind for this kind of stuff, but you have to remember, a grievance panel is nothing like a court. With time and experience...I'll leave it at that.

When dealing with management, you have to...

know when to bluff
know when to stoke their egos
know when to beg

Push them too far or too hard, they send it to the State Panel. Grievant off for another 2 or 3 weeks with little chance of back pay.

You want to gamble with a grievant's livelihood? Go ahead. I won't.

I only asked because if an employee gets reinstated under a last chance agreement, they may be signing away their rights under the contract and law, which wouldn't necessarily be in the employee's best interest. If I were to guess, I would say that would just be part of the overall strategy to gey rid of an employee.

 

[zubenelgenubi]

OK. The issue here is that some people think that the reasonable discussion with management should be that the OP did nothing wrong. He cannot be fired for job abandonment, he is being retaliated against because of his disabilty, this was not a Cardinal Sin.

I never said this is how I would approach management in the matter. The possibility that he did nothing wrong was conditional on the successful argument of past practices. The ADA issue was an observation, but I wouldn't dismiss it as an argument if push comes to shove. I never said job abandonment wasn't a terminable offense, I said what he did didn't meet the definition of job abandonment, and I still stand by that. In the summaries I saw a mention of the fact that job abandonment has to be proven, and that requires intent.

Remind you of anyone on here?

Only the imaginary version of me that exists in your mind.

The reasonable discusson is what I pointed out and people like you don't seem to like.

The reasonable discussion is that the OP made a mistake. That we realize it may look like job abandonment, but that is not what the OP intended.

There's that intent thing, where have I heard that before?

We realize that job abandonment is a serious issue, but this was a misunderstanding.

He thought it was alright ro leave, as he has done in the past, but from now on he will check with his sup before leaving.

This sounds awfully similar to something I've seen before too. As he has done in the past? So pointing out the way things have been done in the past could actually help?

That is a reasonable discussion. And guess what? That is what puts him back to work on the spot

Wierd how you try your hardest to discredit my arguments, then you straight up admit that you would also use some of them to get the person back to work. This entire time I've been discussing the arguments and reasons for them, haven't even touched on the strategies for employing them.

 

[Mugarolla]

Wierd how you try your hardest to discredit my arguments, then you straight up admit that you would also use some of them to get the person back to work.

No, you insisted that what he did was not job abandonment and was not a terminable offense.

I agreed that what he did may have constituted job abandonment, but that was not his intention.

Big difference.

And yes, I will use any tool, any argument to get an employee back, including admitting that what the employee did may constitute a termination, but that was not his intent.

 

[Mugarolla]

I only asked because if an employee gets reinstated under a last chance agreement, they may be signing away their rights under the contract and law, which wouldn't necessarily be in the employee's best interest. If I were to guess, I would say that would just be part of the overall strategy to gey rid of an employee.

I never mentioned an LCA, and this case was no where near an LCA.

This case was a sup flexing his muscles and at the most a one day off for the OP.

 

[zubenelgenubi]

Cool.

 

[Maple Grove MN Driver]

Are you going to demand back pay?

He is entitled to back pay if he gets his job back.

 

[ski or die]

What does your short term memory have to do with what we are discussing?

The OP clocked out and left without any approval. What are you going to write down?

During this discussion it was mentioned of management changing stories, that is why I always took notes of what was said during meetings with management.

OK. The issue here is that some people think that the reasonable discussion with management should be that the OP did nothing wrong. He cannot be fired for job abandonment, he is being retaliated against because of his disabilty, this was not a Cardinal Sin.

I totally agree with you on this. I seen it happen in many cases where the company tried to force someone to quit because of injuries that may have occurred on the job. The don't want damaged goods.

You need to admit to yourself and the grievant that he may be in the wrong.

Read my previous post a little closer. If the employee was in the wrong, we would discuss further options. And is some grievances we were able to resolve the issue in the office. I worked clerical, 2 of my friends and I would go to lunch together each day. Occasionally they would have a beer with their lunch. I do not drink so I would just have a coke. Our manager walked in the restaurant one lunch hour and sat down at our table. He told them to not to come back to work. As I said when employee was wrong, we would try to discuss it with management and resolve it. They were able to come back to work after a 10 day suspension. Usually in a case like this, you were gone.I always would fight for any employee as I did not want to see anyone lose their job. Even had a supervisor they were going to fire for sexual harassment (placing his hand on a employee improperly). We did not push for termination. The issue was resolved.

some Stewards who have no idea what they are doing.

My reputation was a fair steward who would fight for all employees, they would request my assistance in several departments in our facility. I don't agree with all of your views, some have merit. But as a Union Steward, you fight for each and every employee, even if they were in the wrong. Explain to them the mistake they have made and try to resolve the issue with management without going to panel. Seen to many panels where decision was made before even walking into room.

 

[Mugarolla]

During this discussion it was mentioned of management changing stories, that is why I always took notes of what was said during meetings with management.

I do not think that management changed their stories according to the OP. I believe that he kept adding addtional info as he posted.

And, yes, I also take notes. Sorry about the short term memory thing. I know that is the third thing to go as we age.

I totally agree with you on this. I seen it happen in many cases where the company tried to force someone to quit because of injuries that may have occurred on the job. The don't want damaged goods.

My point on that was to go into the local hearing with the attitude that the OP did nothing wrong, that he cannot be fired for job abandonment, that this is not what he did, and even if it is what he did, you still can't fire him because it is not a Cardinal Sin, well...

To go into a hearing putting all the blame on the Company and none on the grievant, especially when there is at least some blame, State Panel it is with more unpaid time off.

And no, I did not say that you would, or did, this. But it is in this thread somewhere....

Read my previous post a little closer.

I was not referring to you. I agree with how you handled things. You could admit to yourself that an employee may have been in the wrong.

Yes, it usually changes defense strategy, but others refuse to admit that the OP may have been in the wrong.

My reputation was a fair steward who would fight for all employees,

I don't doubt it.

And remember, just because I play Devil's advocate on an anonymous internet chat forum pointing out that the grievant may be in the wrong, does not mean that I will not pull out every trick in the book to get him back to work as soon as possible.

You need to know what he did, what Article he violated, so that you are prepared to respond to UPS's arguments.

A good Steward knows this and knows how to handle this. We are not in a court of law.

 

[Mugarolla]

He is entitled to back pay if he gets his job back.

No, he is entitled to grieve back pay, unless he elected to give up that right when they put him back.

I bet you a beer he will lose the back pay grievance.

 

[UpstateNYUPSer(Ret)]

He is entitled to back pay if he gets his job back.

Not necessarily-----often times the hourly will agree to waive any back pay in exchange for getting his/her job back.