January 23, 2013: When it comes to defending members, write-ups for absenteeism is one of the most common problems stewards have to deal with.
TDU asked experienced stewards and union representatives for tips on protecting members from unfair discipline.
Here's what they had to say:
Q. What's the first thing you do when someone's written up for absenteeism?
A. You have to do a thorough investigation. You can't rely on management's story.
I look into the case myself and investigate:
- The accuracy of the employer's facts
- The reasons for the absences—and any mitigating circumstances, including the Family and Medical Leave Act (FMLA)
- The worker's attendance record relative to other employees
- Management's consistency in enforcing the rule
- Whether management followed progressive discipline
My first step is to talk to the supervisor and find out which days are in question, and if any of the days are for tardiness. If they are for tardiness I get the specific clock-in times.
Next, I go over the records with the member. If management doesn't have their facts straight, you can contest the discipline right there. But you better have the facts.
Q. Sometimes when there's smoke there’s fire. What if the write-ups are legit?
A. Look to see if there's a pattern, are they late every Monday? If there isn't a pattern, it's a good idea to ask if there's something going on that's causing the problems. Maybe there are mitigating circumstances that could be fixed with an adjustment in their start time. Sometimes it's a medical or family problem and the FMLA becomes an issue.
If their record isn't too bad, you can try to bargain with management to reduce the discipline or to throw it out altogether if the member agrees to get straight and fly right.
Q. What are tips or tricks for bargaining with management to settle grievances or make the write up go away before there's even a grievance?
A. If management wants to issue a letter I always try to talk them down to just a verbal warning.
This only works if you've built up some credibility with management. If you make this agreement, you've got to follow up on your end, have a serious talk with the member and try to get results.
It is very important that the member be present in every part of this process, so that they can witness the bargaining between you and the supervisor.
Q. What's the best way to talk to a member who is having attendance and tardiness issues?
A. It depends on what the issues are. Sometimes, I'll try to give the member a pep talk. If I can relate, I let them know that I understand their problem. But you've got to be firm, too. You need to be honest and let the member know that there's only so much you can do to protect them from an attendance problem if that problem continues.
Sometimes, I'll try to give them an incentive to shape up. I'll remind them that a raise is coming up soon or they'll be qualifying for more vacation. I give them encouragement but I also let them know the ball is in their court.
Q. What about the FMLA?
A. A lot of members don't know their FMLA rights and they'll get written up for absences that could be protected under the FMLA. I'll use that to try to get those absences thrown out. I keep copies of FMLA information in my stewards' folder so I can get the member up to speed. If a person has a chronic health problem or a family member with a chronic problem, I make sure they understand how to use intermittent leave. (see below)
Q. What about favoritism or "disparate treatment." A lot of members will say, "Why am I getting written up when so-and-so is absent twice as much as me?"
A. It is a very difficult thing to do. Everybody thinks they know people that have gotten off easy, but they have no idea what the details are of each settlement. For example, a steward could've gotten a member off because of their excellent work performance by agreeing never to throw it in the face of the company if it happened again down the road. The trick is to carefully check all the details so that nothing you do backfires.
One thing you can do is make an information request (click here to learn more) to the HR department or the company for absentee records for all employees in a department, or on a shift, or in the company. So instead of calling out a handful of members with worse attendance records to prove your case, you can show it's been allowed to happen to an entire group. Often times the company will back down to that.
Q. What if management is determined to fire the person?
A. First, I make sure the company has followed progressive discipline. But if it's a real problem case and management has gone through all the steps and they just won't budge, a possible alternative is a Last Chance Agreement.
I only do this when there are no other options. Even then, my local will only agree to a Last Chance Agreement if it includes certain very specific conditions, including an expiration date, limitation of the agreement to issues related to absenteeism, and the right to access the grievance procedure. Click here for more information on Last Change Agreements.
Protect Yourself with Intermittent Leave
FMLA intermittent leave is a tool we can use to protect ourselves.
The FMLA allows covered employees to take up to 12 weeks time off each year—either for a serious condition, or to care for an immediate family member.
You don't have to take it all at once, or in a continuous manner. If you have a chronic condition, you can take FMLA as you need it—one day at a time or even a few hours in a day. This is called "intermittent leave." Medical conditions that apply are:
- chronic neck, back, knee and shoulder injuries
- migraine headaches
- and many more
You can also take intermittent leave to care for a parent, spouse or child with a serious health condition.
The details of how to become qualified for FMLA leave are important. Click here to learn more about how you get covered and how to enforce this right. You can call TDU at 313-842-2600 or send us a message by clicking here.