Managing employees in a union a quite different from managing non-union employees. Many unsuspecting first-time managers learn this the hard way. Hopefully this brief synopsis will help managers through this process.
The collective bargaining agreement is a legally binding document that governs how the company interacts with unionized employees. Surprisingly, many supervisors lack a basic understanding of their own collective bargaining agreement and instead make decisions based on what they think is “fair.” The CBA trumps “fairness.” Managers must thoroughly understand the CBA. It should always be the first place to look regarding the expectations and duties in any situation.
Almost every union contract will have a provision stating that employees can only be disciplined or terminated for “just cause.” This is different from typical “at will.” “Just cause” means you need to show that the worker violated some work rule, standard, or expectation, and you were justified in taking action. Some considerations supervisors should use in evaluating whether there is “just cause” include:
- Was the rule or expectation clearly communicated?
- Has the company been consistent in applying the standard?
- Have you conducted a fair investigation?
- Is the proposed discipline proportional to the offense?
In a unionized setting, an employee has the right to request the presence of a union representative whenever the employee is subject to an investigatory interview, which might lead to discipline. This is commonly known as the Weingarten rule. The employee has the right to confer with the representative (typically a shop steward) before the investigatory interview. However, the representative does not have the right to be disruptive or to argue on behalf of the employee. Worth noting, when supervisors meet to coach an employee, it is not a disciplinary interaction triggering Weingarten rights.
Occasionally a supervisor may come across an employee who is combative and feels “bullet proof” because of the union protection. Supervisors must establish and maintain control in a firm, but professional, manner. Bullies thrive when people are afraid to challenge them. They can quickly make an entire department or organization dysfunctional. HR should be there to support managers in these situations. Oftentimes, this situation arises when the company has been lax about enforcing standards and rules. Most importantly, supervisors must document, document, document. This is where supervisors often fall short. There is a saying in labor law that “if it’s not documented, it did not happen.”
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.