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Dear Steward: I forgot to mute myself, can I be punished?

A panel of distinguished labor arbitrators answered these audience questions at the Detroit conference.

Question #1.   Zoom Hearing

This happened in a Zoom arbitration hearing.  The arbitrator sent the parties into chat rooms, but one side forgot to mute themselves, and the guy uttered a terrible racist slur.  Can he be disciplined?

Answer:

I have done a lot of Zoom hearings, and I have helped write a code of conduct for Zoom hearings.  There are two problems with disciplining the person.  First, another party should not be eavesdropping, to the extent that there’s discipline.  Second, it’s not a statement which the person intended others to hear.  Some people forget to mute themselves.  

Question #2.  Insubordinate-like behavior

The manager oversees the supervisor.  The supervisor is not around.  So, the manager tells the employee to not do “x” – as part of the production process.  The employee shoots back:  “You are not my supervisor and if you talk to me, I want my union rep.”  The manager finds the supervisor who issues a written warning for insubordination.  Would you uphold a written warning?

Answer:  

Yes, I would.  It’s only a written warning.  There’s no loss of pay.  And it reminds the grievant about the employer-employee relationship.  Point 1:  Employees don’t get to choose their supervisor.  That’s a management function.  Point 2:  He has a negative reaction to the manager’s instruction.  It’s not strict insubordination, but it’s worth a written warning.   Point 3:  The grievant does not understand Weingarten.  Weingarten applies in an investigatory interview.  This was a simple instruction from a manager.  The grievant cannot use Weingarten as a way of saying to the Manager:  Don’t talk to me. 

Question #3.  Absolute rule with different penalties

We work in grocery stores which has a corporate policy:  “Do not chase shoplifters.”  But HR issues different levels of discipline.  Some get a warning, some get a suspension and some are discharged.

Can the employer have an absolute rule and then, turn around and say, some chasing results in a warning and some in discharge?

Answer:

It’s a reasonable rule and the employer has the right to issue discipline.  Some employers have grids or discipline coordinators who try to be fair, but the way the question is framed, it is not a due process violation. . . yet.

Employers get into trouble with unequal enforcement.  If some employees are getting fired for violating a specific rule and others are getting a reprimand for the same rule  violation, the union will likely argue disparate treatment.  

If you’re the management representative, and you want to avoid that argument, here’s what you have to do:  Explain how chasing a person out-of-the store is not always the same.  So in a discharge case, you better have some facts which distinguish it from the reprimand cases.  Or you’re going to lose.  Impose discipline consistently.

-L2019 Steward Council

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