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Steward's Sourcebook

Rights In Conflict: How can you represent two members involved in a dispute with each other?

You must protect the rights of both members based on the facts and the contract, not popular opinion

Some of the most difficult grievances arise when the best interest of one member conflicts, or appears to conflict, with the best interest of another. For example, if you file a grievance for a member who isn't getting assigned overtime that he believes is rightly his, those members getting the improperly assigned overtime may feel you are taking money out of their pockets — even if the company is clearly violating the contract.

Fistfights can become nightmares for stewards. Members often take sides after a fistfight, expecting one member to receive better treatment than the other. The steward's duty is to represent the rights of both members based on the facts of the case. The combatants and their friends will have other ideas.

Let's examine an imaginary scenario. Jim is a popular member who works on the line right beside Sam. Sam is not nearly as popular. In fact, many people consider him a royal pain in the ass and feel sorry for Jim, who has to spend eight hours a day right next to Sam.

One day, they get into a fight. The supervisor breaks it up. Jim and Sam are both breathing heavily, red-faced, and angry. Sam has several red marks on his face and a rapidly swelling lip; Jim has a cut over one eye.

The supervisor immediately separates the two men and talks to them separately. Then he tells them both to go home because they are on "suspension pending investigation," what many people call a "crisis suspension."

This is when you arrive. You hear the words "fistfight" and "suspension," and you know from experience that there is a good chance someone is going to file a grievance over this at some point.

Anticipate Problems and Act On Them Immediately

You start gathering facts right away. Before Jim and Sam leave, you tell them that when they get home they should write down everything that happened from 15 minutes before the fight until 15 minutes after. It's important they write down what actually happened while it is still fresh in their minds. The more they think about what happened, the more they will change the memory in their own minds. Those first recollections are as close to the truth as you're going to get.

That's also why you should interview eyewitnesses as soon as you can. Once they go back to the job, they'll discuss the incident, and they'll begin mixing up what they saw with what other people tell them. Studies show that after a few days people have trouble telling between what they heard from others after an incident and what they actually saw and heard themselves.

As you question witnesses, remember to ask each one to name anyone else they think was nearby and may have seen what happened. The more witnesses you have, the better.

Keep in mind that in an arbitration, just as in a court trial, your case is only as strong as your documented evidence. Your written notes are the best documentation you have most of the time, so be sure to take good ones. Write down all the details. You never know which one might be the one that turns the case for you.

Your Goal Is Fair Treatment For Everyone Concerned

The decisions you will have to make are not easy. Always remember that the goal is to gain fair treatment for all of your members.

Jim's grievance is simple: Did the company have "just cause" to fire him?

Your contract says they can fire anyone who starts a fight, and they always have. By Jim's own admission, he "started" the fight. That is, he took the fight from words to fists. Unfortunately for Jim, it's a slam dunk for the company, and they refuse to reinstate him.

Based on the facts, the committee decides against taking it to arbitration. You write Jim a letter explaining why.

No one in your local wants Jim to go, you included, but you have no choice.

Sam's grievance is stronger. He was being rude, but if Jim had never thrown a punch, there would have been no fight. Sam says he's being punished for what Jim did, and the facts appear to support him.

So you tell the company you're willing to take this one to arbitration.

But you never have to. By the time your arbitration panel has been picked, the company cuts a deal, giving Sam half his back pay and removing the final warning.

Congratulations! You've just successfully handled a grievance.

Unfortunately, now a roomful of your members are furious with you.

They accuse you of "taking Sam's side" and say if you had taken Jim's case to arbitration, the company would have given him the same deal.

When things get this complex, it is sometimes difficult to convince your members that everything you do is for their benefit. But it's true. Your goal is to make sure the company treats everyone fairly and equally, in accordance with the contract and the law.

Given all the facts, you could never have won Jim's grievance at arbitration. You don't want to waste everyone's time and money arguing cases that you do not have a chance of winning.

On the other hand, Sam's case was winnable, as the company realized.

You have a legal obligation to represent everyone in the bargaining unit equally, not just the ones you like.

And if you expect to win at arbitration, you must argue every grievance on the documented facts, not conjecture, probability, or personality.

Reporter  V41N2
Published on the Web: June 12, 2007

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