Are employess afforded Discovery at discipline meetings?

[heaverin67]

Oklahoma is a right to work state. I am a shop steward and currently representing a worker who was accused of sleeping at work. My initial investigation revealed that no one witnessed that he was asleep. Management is conducting their investigation and is not revealing their witnesses. Is there a point in this process where they are required to list their witnesses? Does "Discovery" apply to union/company investigations? They are determined to proceed to the discipline stage without revealing their sources. I am awaiting information from our Local, however, I am curious if anyone is aware if there are any pertinent legal cases that ruled one way or the other on this issue.

 

[army judge]

The rules of civil or criminal procedure normal don't apply on these types of matters.

However, your collective bargaining agreement might speak to this.

I've seen a few, even in Texas, that do.

If your collective bargaining agreement is silent on this, you're probably bound your employer's policies and procedures.

I suspect you'll know soon enough, because you'll be given a chance to cross examine any witnesses.

This is just a guess, but I'll wager they have your member on video; or someone observed him/her cutting "zzzz's"!

 

[heaverin67]

No video. A supervisor said they saw him with his eyes closed and suggested he stand up if he was getting sleepy. The employee responded immediately and the supervisor believed he was not asleep. However, they went to the senior operator just to let them know what happened. It was determined that nothing would be done about the incident. However, another employee, not present, not even on shift, heard about it the next day and went to their supervisor to tell them about it. This was sent to management and they opened an investigation. The supervisor maintains that they do not believe they were asleep, but was pretty close. I pushed management for witnesses and they continue to say they don't need to disclose their witness list. I think they are trying to find anything, however, the only person that saw this is still saying they don't believe they were asleep. I think one of two things are happening: 1) Management has nothing and is stringing the employee along, or 2) They want to make an example of the employee and are using some intimidation. They are trying to get some type of confession from the employee and is making him sweat so that he'll sign it.

I've told the employee to never meet with management without representation and he should not sign anything until I can read it. I think they are simply trying to bully their way to a reprimand or suspension. I hope I've made enough noise to make them think twice. I think what they are doing is unethical since company policy punishes conveying false testimony which is what the other employee (on another shift) did when he heard about this and went to his supervisors. Unfortunately, the manager and this other employee are friends. I'm contemplating filing a grievance against the rumor spreader to push our position. He is not covered under the CBA since he works for a subsidiary of our employer.

This situation is a bit muddled because of all the different companies involved. We work for a FAA contractor. The initial incident involved our contract employee and a FAA supervisor. The rumor-spreader works for a sub-contractor of our company. As far as I'm concerned, if the FAA supervisor is not pursuing this issue, then our employer shouldn't either. I think our company is scared of the FAA, even though they dropped the issue a day before the manager was notified. Sounds like a little CYA and retaliation to the employee is playing out right now. I won't let that happen. I will demand our company show us a statement from the FAA supervisor that I know does not exist.

However, I would still like to see the list of people they questioned over this incident. I believe they would lie to find an easy way out of this problem. They over-reacted and will do whatever they need to do to save face.

 

[army judge]

I represented a guy in a case like this once.

He testified that he was praying.

Even brought in his Holy man to testify about the practices of his "religion".

The charges were dropped.

After the case was over, the guy admitted to me that he had been sleeping.

Oh, his Holy Man was a minister, alright.

He got ordained on by one of the many internet ministries that confer ordination for a $25 fee and your acceptance of a supreme being.

History often repeats itself.

 

[cbg]

This is entirely a matter of your union contract. The law does not address this issue either for or against.

 

[heaverin67]

We are finishing our first year under the union. We have noted many areas of the CBA that the next negotiations will need to beef up. We start negotiations next month for our first 3-year contract. I guess my question is whether employees represented under a CBA are still protected under state labor laws? There are no provisions in the CBA stipulating "discovery", however, surely there are provisions under labor laws that require employers to produce evidence in the case of suspension or termination. Right?

 

[army judge]

Unfortunately your assumption is incorrect.

Labor laws don't address the issue of terminations or layoffs.

They are also silent regarding the manner and format in which an employer conducts said hearings.

We are finishing our first year under the union. We have noted many areas of the CBA that the next negotiations will need to beef up. We start negotiations next month for our first 3-year contract. I guess my question is whether employees represented under a CBA are still protected under state labor laws? There are no provisions in the CBA stipulating "discovery", however, surely there are provisions under labor laws that require employers to produce evidence in the case of suspension or termination. Right?

 

[cbg]

surely there are provisions under labor laws that require employers to produce evidence in the case of suspension or termination. Right?

Wrong. Read my response again. The law does not address this question. The law does not require the employer to produce any evidence. The employer is free to discipline or suspend as he sees fit, with or without proof or evidence, as long as he does not violate Title VII or related laws.

Read your union contract. That is the only option you have.

 

[heaverin67]

Appreciate your responses. I will talk with the lead steward about adding language into the new CBA during negotiations next month. None of us knew that there is little if any protection afforded workers in the workplace, other than ADA, EEO, etc... I've never been a fan of unions until I started working for this defense contractor. Now I'm seeing a little bit of a purpose for them.

As for the employee, they called a meeting with me today to let me know they are writing a letter of warning. I knew they had no proof, and it took making a lot of noise to get them to admit it. However, it is a little disconcerting to think that if they wanted to be jerks they could fire an employee without proof. Unions would be less necessary if workers had the same rights that is required of the state. Producing evidence should simply be the standard.

Thanks again all!

 

[army judge]

Good work, OP.

But, make sure he watches his back.

The sharks smell blood in the water.

They are still hungry, if you catch my drift!