Have your tools handy & be careful what you say
Imagine this scenario: You and a friend are out having lunch in a restaurant. Your friend happens to be an attorney, and from time to time he has given you legal advice. Suddenly, the police come in and ask you if your name is Jesse James, and did you rob the Glendale train?
Of course, you tell the police no, you are not Jesse James and you have never robbed a train. You show the police your driver's license and try to explain to them who you are.
It becomes obvious that the police do not believe you, and finally one says, "Mr. James, I am placing you under arrest for robbing the Glendale train."
At this point they turn you around and put the cuffs on you. You know this is a huge mistake, so you ask your attorney for advice.
He says, "These guys are obviously either complete idiots or they are out to frame you. Why don't you just beat them both up and run away. In fact when you beat them up, take their sticks and guns so they won't accidentally hurt you."
Is this good legal advice?
That kind of response might work in the movies, but in real life it will only get you deeper into trouble. We have a legal system to protect us from baseless accusations. Cooperating with the police, letting them take you downtown and book you, then going to court to prove your innocence will be annoying, it will take time, and be a royal pain.
But if you resist arrest, you'll end up in even more trouble.
But in similar situations on the job, we are often tempted to give advice that gets the member we are representing (and ourselves, not to mention our local) deeper in the doghouse.
You and Your Members Must Work Within the System
Let's look at another scenario: You are the steward for the evening shift. As soon as you get to work one night, your supervisor comes to you and says that you need to represent one of your members. As he leads you toward the break room, where the member is waiting, he fills you in.
"Joe came to work a half hour late," the supervisor says. "I had to write him up for being tardy. I asked him if he wanted a steward, and he said no in front of a couple of witnesses, though he was obviously upset. I asked him if everything was all right, and he said yes. So I just figured he was upset over the write-up. I don't remember ever writing him up before.
"About an hour later, the production guys called and said they were just about out of parts and the number 5 line would have to shut down. Joe is the materials/supply person for line 5, so I went to find him.
"I saw his forklift parked in an aisle, and Joe looked like he was slumped over the wheel. When I hollered at him, he fired up and pulled out into the main traffic lane without looking -- right into another forklift. Nobody was hurt, but the parts bin on Joe's forklift turned over and scattered parts all up and down the main traffic lane. Now, the traffic lane is shut down, the number 5 line is out of parts, and I got guys just standing around. Joe's in pretty deep. That's why I wanted you to be here when I tell him what I have to say."
When you get to the break room, Joe is pacing up and down. He whispers in your direction something about the supervisor being out to get him.
The supervisor doesn't hear Joe, but asks him to take a seat at the break table. Joe refuses to sit down and keeps pacing back and forth, muttering.
At this point the supervisor says, "Joe, you have been involved in a property damage accident. As a matter of fact, your behavior has been unusual all day, right from the minute you came in a half-hour late. I am going to have to ask you to take a drug/alcohol urine test."
Joe turns to you and asks for your advice: "What do I do?"
What would you tell him?
I doubt you'd advise him to beat up the supervisor and run for it. But if you don't think before you respond, the advice you give may be almost as bad.
Keep Your Tools Handy
As a union steward, much of the representational work that you do is often in a situation just like this — on the front lines, before the official grievance procedure kicks in.
When employees are asked questions about accidents or incidents, they often request the presence of a union steward. Handling these situations properly can help you avoid a lot of grievances, while keeping your members out of trouble.
Because you never know when you're going to be asked to represent a member, you need to always have your "tools" ready to use.
A steward's tools include a copy of the contract, a copy of the company rules, a tablet, a pen or pencil, a watch, your brain, and both ears.
Don't forget your brain and ears. They are the most important tools.
When Joe turns to you and asks what he should do, keep in mind the four keys to giving good advice: stay calm, refer to the contract, record what happens, and provide information — don't try to tell the member what to do.
Stay calm. In most instances of discipline, drug testing, accidents, property damage, insubordination, and other incidents, the participants are going to be emotionally involved and upset. That's why they need your calm, rational advice. Emotion gets people fired. You must be calm to think logically about the best course of action. Also, by being calm yourself, you will help your member calm down.
Refer to the contract and company rules. To advise Joe, you must know what the contract and company rules say about drug/alcohol testing. In crisis situations, employees often feel they are being "singled out" or persecuted. Showing the employee the relevant rule or contract language helps them understand their options.
Write down what is happening. Use your watch to note the time for each entry. Taking notes early in the investigation is often the most important part of your representation.
Inform the member of his or her rights, the contract language, and the consequences of his or her actions. Do not tell Joe what to do, even though that is what he asked you for. Only Joe can decide what to do. Your job is to tell him what the rules (or contract language) say about his situation — in this case, drug/alcohol testing — and the consequences of his actions.
Good Advice Informs and Explains - It doesn't Direct
Let's look at the paragraph that covers drug/alcohol testing in Joe's contract:
"Consistent with the Company's Drug-Free Workplace Policy, a urine test to determine the presence of drugs and/or alcohol will be administered if reasonable suspicion exists to warrant said test. Reasonable suspicion is defined as any accident involving personal injury, any accident where property damage is judged to be in excess of Two Hundred Fifty Dollars ($250.00), or any situation where an employee, in the judgment of his or her immediate supervisor, displays erratic, unusual, or dangerous behavior. The administration of the urine test will not be used in a punitive manner, and only after careful consideration of the guidelines outlined above. Failure of the employee to submit to the drug/alcohol urine test when required to do so by his or her supervisor may result in immediate suspension and termination."
Given this contract language, how would you advise Joe?
The first thing to do is to show him the contract language and read it aloud. Then you can discuss his options and possible consequences for taking the test or refusing to do so.
Your conversation might go like this.
Steward: "Joe, for whatever reason, your behavior today has led the supervisor to believe he has reasonable cause to give you a urine test. Keep in mind that if you refuse to take the test, you may be subject to 'immediate suspension and termination.'"
Joe: "I don't want to take the test. What do I do?"
Steward: "I can't tell you what to do, but if you don't take the test, you probably will be sent home and may be fired. To my knowledge everyone who has refused to take the test has been fired, and we have never won an arbitration case on a termination for refusing to take a drug test. On the other hand, if you take the test, we can deal with whatever the outcome is. If the test is clean, you'll probably come back to work and we can deal with the accident issue. If the test is not clean, you might get fired, you might not, but either way we can deal with that issue through the grievance procedure."
Joe: "But he didn't have a good reason to require it. I am not acting erratic or unusual or dangerous."
Steward: "Maybe not, but the contract says 'in the judgment of the supervisor.' The supervisor made his judgment. We can't overrule it."
Joe: "A lot of good you are. I have paid all that dues money all these years and now you won't help me."
Steward: "I didn't say we wouldn't help you. But the union helps people by filing grievances. If you refuse to take the test, the only grievance we will be filing is your termination, because you will be in violation of the rule. If you take the test, you might still get fired, but not for refusing the test. I don't know what your personal habits are, but the union did not get in this accident, you did. We are here to help, and we will file a grievance on your behalf regardless of what you do. But I can almost guarantee you that if you refuse the test, you will be fired."
As you can see, the idea is to inform Joe of his options, help him understand the process, and let him decide. Meanwhile, you are writing down the time, dates, places, people, and relative details of the incident, just in case you have to file a grievance.
That's what Joe pays his dues for. Not so you can tell him what to do every time he gets into a jam, but so that when he does find himself in a jam — of his own making or not — your good advice and representation can help him make up his own mind what to do.