How much do you know about your disciplinary rights?
Taking fire at work? Try to resolve it

By SHERRY HALBROOK

PEF counts its membership by tens of thousands. It counts the number of discipline and termination cases it defends annually by hundreds, which is an indication most members go along year after year without getting into serious trouble at work.

You probably have never been a target for discipline and may never be. But it helps to know how to head off or deal with the situation if it arises.

Some managers use the threat of disciplinary action to bully and intimidate employees, especially those who speak out against abuse and mismanagement.

“No matter how professional, competent and good we think we are at our jobs, we can all get into trouble,” said PEF trainer and former field representative Allan Lahoff, who teaches PEF stewards how to enforce the PEF contract and defend members threatened with discipline.

Know the rules?
Among the first things you can do to protect yourself is read your agency manual and note any policies, rules or procedures that could trip you up.

“Sometimes people are counseled or even targeted for discipline for things they didn’t know were violations, or for failing to do things that were never part of their job to begin with,” Lahoff said.

If you are expected to do things that are not really your job, you should know that.

You can be fired for incompetence.

Know your job description. If your boss insists you work out-of-title, do it under protest. Then grieve it.
“If you are given a lawful order, you must obey it unless it could result in an unusual or abnormal safety or health hazard or your criminal prosecution,” said PEF field representative Jim Hair, who has helped defend members in hundreds of discipline cases.

“Insubordination is grounds for termination, and management and arbitrators come down really hard on people who refuse orders,” Hair said.

Management also may seek termination for the alleged abuse of state property, such as vehicles, and for workplace incidents.

Hair said the single most common cause of discipline cases he’s seeing this year relate to use of e-mail, the Internet or the agency’s intranet.

“One instance is not necessarily a fatal flaw,” Lahoff said. “But a pattern of abuse, is likely to draw more serious penalties.”

Know your rights?
“People should read their contract. It can be an eye-opening experience,” Lahoff said.

PS&T Contract Articles 33 and 35 deal with discipline, grievance, arbitration and resignation.
If you have questions, talk to your steward or field rep.

The rules spelled out there are meant for PS&T employees in permanent appointments. You have a lot more exposure if you are probationary, a trainee, a provisional or a temp.

Among the most important disciplinary protections and other provisions PEF members have going for them in the PS&T contract are:
• The burden of proof to justify discipline is on management.

• The PS&T contract requires the state to prove it has ‘just cause’ before it can discipline a permanent employee, and that imposes many different tests the employer must meet to support the discipline.

• If you receive a notice of discipline (NOD), you have up to 14 calendar days to file an appeal under Article 33. If you miss that deadline, the discipline can be imposed. Notify your steward and field rep immediately if you receive an NOD.

• Prior to being issued an NOD, you may be suspended without pay or temporarily reassigned, but only if you are charged with a crime or your continued presence represents a potential danger to persons or property or would severely interfere with operations.

• If you are suspended without pay, you have the right to charge your leave (other than sick leave) accruals.

• If you are suspended without pay, you can waive the agency hearing and go straight to arbitration in order to speed the process and reduce your time off without pay.

• If you are suspended without pay, the agency has just five calendar days to serve you with an NOD. If criminal charges are pending, the time limit extends to 30 days.

• You can not be disciplined for something that happened more than a year ago unless it would constitute a crime.

Stop and think
The single most important thing you can do when you feel threatened at work is “recognize the true threat,” Hair said.

“Be analytical,” he said. “Ask yourself, ‘What is a fair expectation, and what is not?’ Know when to step back or move on to something else rather than allow a tense situation to become an all out confrontation.

“Try to resolve issues at the lowest possible levels, before they ripple out and the circle widens,” Hair advised. “You must find realistic common ground with your boss, as well as your co-workers and clients.

“Although the PS&T contract is very strong in terms of disciplinary protections, members often overlook common sense,” Hair said. “They over-react to criticism and supervisory direction.
“If you act impulsively, it is likely to put you in harm’s way. Too often, members react indignantly and later regret it.”

The boss is the boss
Work is not a democracy. All employees are not equal. Your right to free speech is limited at work.
“Don’t assume you can say and do whatever you want,” Hair said. “You are a subordinate, not an equal, to your supervisor. As a worker, you can only speak for yourself and never as an equal to your boss.

“If you and your boss are at odds over something that you haven’t been able to resolve, don’t keep trying to fix it yourself,” Hair said. “Let your PEF steward go in and discuss it with your boss. Get to know who your elected PEF representatives and field representative are, and how to get in touch with them quickly if you need them.

“If you are a steward or hold other PEF office, always make it clear to management when you are acting in that role, because then you are speaking for the union,” Hair added. “But don’t try to represent yourself, if you are the one who’s experiencing problems.”

Questions or interrogation?
Under the contract, an “interrogation” is not a friendly conversation or casual inquiry. It is the questioning of an employee who has already been determined to be a likely subject of discipline.

If you are in any doubt, ask if this is an interrogation before you go in. Ask if you are likely to be the subject of discipline. If the answer is yes, ask for time to obtain union representation or an attorney.
If you are told it is not an interrogation, but you are questioned or asked to submit a written statement about an incident or situation, you must comply.

“You must answer the questions,” Hair said. “You have no Fifth Amendment constitutional right against self-incrimination for purposes of workplace discipline.

“However, if you are ordered under threat of insubordination to answer a question, that testimony could not be used in a criminal proceeding against you.”

“Less is best,” Lahoff advised.

Work vs private life
Not only are your free speech rights limited at work, what you do away from work and on your own time can come back to haunt you on the job as well.

“Every case is different,” Lahoff said. “Off-duty conduct is usually not relevant if it’s lawful and if it does not reflect negatively on your employer or inhibit your employer’s ability to fulfill it’s mission.”

Or, as Hair put it, “Public servants often are held to a higher standard off the job as well as on.”

Also remember that what you do and say at work — whether directly or by e-mail, phone or written letters and memos — may be subject to your employer’s scrutiny.

Day in court
If your job is on the line, your contract assures you will receive “due-process” and a chance to see the evidence against you, to hear your accusers, and to defend yourself before an impartial arbitrator.

“PEF commits a tremendous amount of resources to defending its members,” Lahoff said.

PEF will provide an attorney to defend you against a threat of termination. If the employer is seeking a lesser penalty than termination, PEF will provide a field rep to handle your case.

Under the PS&T contract, you don’t have to accept PEF representation. You may represent yourself or obtain your own counsel.

Arbitration is the final step in the disciplinary process.

On one hand, it may be the best opportunity to lay all of your cards on the table and fully attack the evidence and case management presents against you.

On the other hand, you have no control over the outcome, nor can you appeal a decision you don’t like.
Unlike some other unions, it is PEF’s policy to let you decide whether to accept a settlement negotiated with management (assuming management is willing to settle) or go for broke before an arbitrator.

If you are ever faced with such a choice, it will be important to understand how arbitration works.

During arbitration and, in fact, throughout the disciplinary process, you or your representative will have the opportunity to challenge any evidence the employer seeks to use against you.

Management will present its case against you, then you will present your defense. Management may rebut some of your arguments or evidence.

Usually, at the conclusion of the arbitration process, written briefs are presented by both sides.
The independent arbitrator is both judge and jury. He or she decides what evidence to allow and what to reject.

If the arbitrator decides you are guilty, he will consider the penalty sought by management and may impose or modify it. The penalty should be in keeping with the contract’s requirement for “progressive discipline” which means the penalties become more severe for repeated offenses. It should also be appropriate to the offense.

Seniority will not protect you, but a long, positive record of state service could mitigate the severity of your penalty.

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