Pending Arbitration case-Really Insubordination?

[brownrodster]

Trick, most supes are not specialists. They're GPs. They render expert medical opinions on the whole range of conditions, often without even doing and exam, running tests, or taking x-rays. Some also diagnose over the phone; a skill even real doctors don't claim to have.

Reminds me of a PT sup I had who earned a BS in medicine. That guy could tell you exactly what wasn't wrong with you.


Once I was a clerk and complained of sore hands from a terrible computer set up. This PT sup had me move my hands around and then told me "you don't have carpel tunnel, you are fine, get back to work." And I was like "ok doc, it's possible this is just a poor ergonomic set up leading to sore hands, can we adjust the location of the computer keyboard?" So I went to the safetey committee and they couldn't figure out how to change the computer station....

 

[dilligaf]

dillgaf;

Sorry, but I don't believe that simply holding a "conversation" alone is justification under Weingarten; rather it has to do with actual questioning of the employee in order to obtain information from him that could reasonably be assumed to lead to discipline. Nor can I see that the question you postulated (and/or mgmt's answer to it) would have any relevance; the fact is, mgmt is not (by law, at least...local contract obligations may vary) required to allow an employee to have representation present simply because they intend to have a simple conversation with him, nor to administer discipline. And, if truth be told, an employee demanding representation in such a situation (refusing a non-interrogatory meeting, for example), could quickly evolve into a case of insubordination...and suddenly there's an entirely different set of "short hairs" being pulled..

I'm mentioning this, because "Weingartern" seems to be an area of law in which employees entertain a lot of bad assumptions...assumptions which could get them in trouble, if depended upon.

You are welcome to your opinion.

 

[helenofcalifornia]

PobreCarlos, are you saying that an employee does not have the right to representation if he is being disciplined? I didn't quite understand that part of your statement.

 

[dannyboy]

They said that a lower seniority driver who was unloading packages during the conversation would be enough

Maybe so, maybe no. But what is missing is the knowledge base that the steward would/should have had to recommend proper actions to you. Instead, you got no recommendation, and you acted on your on impulses. Bad move. Right cause of action would have been to say “be glad to boss”, saddle back up, hit the road, then call in injured again. That way, everything gets taken care of properly, and your backend is not on the chopping block. When instructed to do something, you work as instructed, then file, or if a steward is available, get them involved.

But no, you had to be Mr tough guy and bring in conversations that everyone will claim never happened.

You still have not responded at to the injury, workers comp or not???? And if workers comp, how is it they can bring you back before the doc says go back. I smell a big pile of bull

Their saying the designated alternate is the junior driver, who admits he know nothing about the contract. He says he will testify on my behalf, especially Re:knee.

Oh wonderful, first we have a doctor sup and now another specialist knee doctor/package car driver that will gladly testify to the problems with your knee. That and 2 bucks will get you a double cheeseburger at McDonalds. I hope you are not basing any of your hopes on this making a difference.

I am just curious why progressive discipline wasnt used and why they opted to go the full mile after one incident.

804, progressive discipline is not used for insubordination. You get one crack at it to get it right. UPS can not and will not allow employees to get insubordinate and still keep their jobs. Which brings me to the actual refusal to work. The song he is singing here does not match the choir chiming in.

I'm mentioning this, because "Weingartern" seems to be an area of law in which employees entertain a lot of bad assumptions...assumptions which could get them in trouble, if depended upon.

Excellent post. There were always those drivers that thought they knew more than the team that was trying to defend them. And I have seen, and read posts here how that turned out.


Its just like the ADA laws. Funny how many UPS drivers are out of work because someone gave them very bad advice on the ADA laws and how the employer may not use the law to get rid of employees.

Buddy, I hope you get your job back, I really do. But there are so many holes in this story that the boat wont float. And that is your prerogative, not to tell us the whole story.

But from what you have posted here, I would be looking for a new job, cause I dont think you have a snowballs chance of getting your job back.

d

 

[gandydancer]

I don't necessarily believe the story, but if the story is true he will get both job and back pay. It's not insubordination not to do what you can't do. His doctor says he couldn't do it. (Rye: did you obtain disability insurance?) UPS failed to obtain contrary opinion. Expert witnesses: ryredner 1, UPS 0. Civil cases are based on a preponderance of the evidence. UPS got nada. Nada will not win you no cases.

 

[PobreCarlos]

helen;

Yep, if that's all that's involved (i.e. - being disciplined), PER WEINGARTEN (and, again, I'm not extending that to local contracts, which may entail other obligations) that's exactly what I'm saying.

Think of Weingarten, in terms of the courtroom (although it's an imperfect analogy) as a form of "pleading the 5th", in that it allows you to have representation if questioning might mean that you could incriminate yourself. (I said "imperfect" because Weingarten, unlike the 5th Amend., doesn't relieve one of the right to answer questions that might "incriminate" an individual, but does allow him/her "representation" prior to doing so). It doesn't grant a worker the right to representation when the activity involved is anything but QUESTIONING in which being questioned could have a reasonable (and that's a loaded word!) presumption that answering such questions could lead to being disciplined.

The active word is "questioning". Simply communicating to an employee (or asking him questions that would NOT lead to HE/SHE being disciplined) does not carry with it the right of representation....even if that communication involves discipline itself.

Think of it in terms receiving a warning letter in the mail....do most workers demand "representation" before opening it? And what good would it do them if they did?

 

[PobreCarlos]

dilligaf;

That's not merely my opinion, but rather that of a fairly extensive body of findings promulgated by the courts. I'd point to various labor law sites (using an example that popped up first, "http://clear.uhwo.hawaii.edu/wein.htm"l) in which a number of case law citings on the subject are referenced.

Take a look. I think you'll quickly find that the position I presented goes quite a bit beyond just personal opinion.

 

[dannyboy]

It's not insubordination not to do what you can't do. His doctor says he couldn't do it

Gandy, the driver shot himself in the foot when he went back before he was supposed to go back. He was coming in off road, remember? Lets see, 8-10 hours out on road, and he can not work another hour or so? Really? And the doctor that said he could not do it was there as he was saying hell no, I wont go? OF course he has not posted the conversation that took place either. IF he cussed the sup, even without refusing to go out on road, that is also insubordination, a termination offense.

There is a lot of stuff missing from this thread. It stinks of being very one sided. And while there are stupid supervisors that would be capable of making a serious mistake like this was represented, I believe that there is much more here than has been posted. And it is those missing snippets of truth that he "forgot to post" that will lose him the job.

As for the union representation, he did not state that it was the most junior driver, only one that is more junior to him. That would make it quite possible that the driver had 19 years or more of service on the job. Not a rookie wide eyed freshman that has been assumed. Just another little snippet that was glossed over.

You think I am being picky, sorry. But the arbitrator will be at least that much if not more.

d

 

[dilligaf]

Pobre,

I'm kind of understanding where you are going with this. (no I haven't read the case yet but intend to do so).

You are correct in that if I were asked questions, lets say about my rte, I would not normally ask for a steward to be present. Most anything in a day to day situation would apply. But if, during that questioning I reasonably suspected that the conversation could lead to disciplinary action being taken, I have the right to request a steward. Under Weingarten laws they cannot refuse. I have used this before and will use again if I feel it necessary.

My mgt team that I have now is pretty good about talking to my steward before a member is brought in for anything, but that was not always the case. I have had mgrs in the past that could not be trusted under any circumstances.

Using Weingarten has to be done on a case by case basis. All Weingarten does is give a member the right to have a steward present at questioning. It is a form of having a witness on our side to help protect our rights. Theoretically, if the company were handing out discipline for whatever infraction, the questioning has already been done. This is in theory and we all know the company doesn't necessarily follow this.

If I didn't make it clear in my original post, I will try to clear it up now. If I as an employee of UPS were approached by mgt and asked questions that I reasonably felt could lead to discipline I would ask for a steward. If I was denied, or no steward was available, I would stand my ground based on Weingarten and the conversation would be done.


1. They cannot refuse you a steward. It is called Wiengarten Rights. It is federal law. If they try this you tell them, "I have asked for a steward. You are refusing me a steward. Your are in violation of federal law. Until I have a steward present this conversation is over." And you walk away. They may try disciplinary action but it will not hold up.


My original post was very straight forward and is accurate, based solely on a request for a steward and being denied that request, during questioning that could reasonably lead to disciplinary action. You have brought semantics into the coversation and muddied the waters. No problem as life is not clear and certainly working for UPS is not clear either.

 

[dilligaf]

Gandy, the driver shot himself in the foot when he went back before he was supposed to go back. He was coming in off road, remember? Lets see, 8-10 hours out on road, and he can not work another hour or so? Really? And the doctor that said he could not do it was there as he was saying hell no, I wont go? OF course he has not posted the conversation that took place either. IF he cussed the sup, even without refusing to go out on road, that is also insubordination, a termination offense.

There is a lot of stuff missing from this thread. It stinks of being very one sided. And while there are stupid supervisors that would be capable of making a serious mistake like this was represented, I believe that there is much more here than has been posted. And it is those missing snippets of truth that he "forgot to post" that will lose him the job.

As for the union representation, he did not state that it was the most junior driver, only one that is more junior to him. That would make it quite possible that the driver had 19 years or more of service on the job. Not a rookie wide eyed freshman that has been assumed. Just another little snippet that was glossed over.

You think I am being picky, sorry. But the arbitrator will be at least that much if not more.

d

Danny, this is a possibility and as you have said we do not have all the details. But I would like to point out that the contract does not specify a criteria in the number of yrs. It just says a jr member.

I, personally would have a hard time accepting a senior member because many of our senior members do not know the contract. A few of those 'senior' members have been with the company more tham 20 yrs. I would rather have my steward.

 

[PobreCarlos]

dilligaf;

I must have missed that, because what I first saw was your reply to "rye's" post, in which he gave no indication of "questioning" occurring at all (go back and check the post); rather, he seemed to indicate that he was on the receiving end of instructions from his superior....an entirely different animal. And, believe me, if an employee chooses to "just walk away" under circumstances such as those (and/or on the basis of a steward not being made available), "Weingarten" would be of absolutely no protection at all.

Then, on a later follow-up, you stated (again, without reference to the critical aspect of "interrogation"....

"1. They cannot refuse you a steward. It is called Wiengarten Rights. It is federal law. If they try this you tell them, "I have asked for a steward. You are refusing me a steward. Your are in violation of federal law. Until I have a steward present this conversation is over." And you walk away. They may try disciplinary action but it will not hold up."

...which is simply not true. Weingarten applies to situations in which QUESTIONING could reasonably assumed to elicit discipline; just a conversation, or being issued instructions, or whatever, doesn't cary with it the right to "representation". (and, again, local contract may involve other obligations)

Now I see where you're coming from as well...but it seems to me that this is an area in which employees need to tread VERY carefully because, unlike you, I HAVE seen it "hold up".

 

[dilligaf]

Went to panel hearing & they deadlocked! All the company voted for the company, and all the union for me. They thought it was huge that i didn't have union rep when they discharged me, but the company states they didn't have to. In my discharge letter i received from ups, it said that a lower seniority driver who overheard the conversation was union representation.

dilligaf;

I must have missed that, because what I first saw was your reply to "rye's" post, in which he gave no indication of "questioning" occurring at all (go back and check the post); rather, he seemed to indicate that he was on the receiving end of instructions from his superior....an entirely different animal. And, believe me, if an employee chooses to "just walk away" under circumstances such as those (and/or on the basis of a steward not being made available), "Weingarten" would be of absolutely no protection at all.

Then, on a later follow-up, you stated (again, without reference to the critical aspect of "interrogation"....

"1. They cannot refuse you a steward. It is called Wiengarten Rights. It is federal law. If they try this you tell them, "I have asked for a steward. You are refusing me a steward. Your are in violation of federal law. Until I have a steward present this conversation is over." And you walk away. They may try disciplinary action but it will not hold up."

...which is simply not true. Weingarten applies to situations in which QUESTIONING could reasonably assumed to elicit discipline; just a conversation, or being issued instructions, or whatever, doesn't cary with it the right to "representation". (and, again, local contract may involve other obligations)

Now I see where you're coming from as well...but it seems to me that this is an area in which employees need to tread VERY carefully because, unlike you, I HAVE seen it "hold up".

I did go back and re-read the posts. You are right. In Rye's OP there was nothing stated about being denied representation. In Rye's post 498134 (quoted above) the company alleged that he had representation. That was my mistake for not clearly reading what was posted. And that post developed into a whole new issue.


I have always been told, "work first, grieve later". You are right, any member has to tread lightly when using Weingarten. It has it's specific place in the system. There are many that do not even know about Weingarten, far to many. There are many sup's/mgr's that do not want us to know about Weingarten, far to many. Hopefully this will shed some light.