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September 1998
Vol. 1 No. 12 Page 5

How Much Time Do You Need?

JCAM 17-4, June 1998

Steward Rights:

Sections 3 and 4 establish several steward rights:

      The right to investigate and adjust grievances and problems that may become grievances;

      The right to paid time to conduct those activities;

      The right to obtain management information;

      Superseniority concerning transfers;

      An employee's right to steward representation during an Inspection Service interrogation.

Steward Rights-Activites Included.

A steward may conduct a broad range of activities related to the investigation and adjustment of grievances and of problems that may become grievances. These activities include a the right to review relevant documents, file and records, as well as interviewing a potential grievant, supervisors and witnesses. Specific settlements and arbitration decisions have established that a steward as the right to do (among other things) the following:

      Complete grievance forms and write appeals, on the clock (see below).

      Interview witnesses, including postal patrons who are off postal premises National Arbitrator Aaron N8N-A-0219 November 10, 1980 ( C-03219); Step 4, H1N-3U-C 13115, March 4, 1983 (M-01001); Step 4, H8N-4J-C 22660, May 15, 1981 (M-00164);

      Interview supervisors; Step 4, H7N-3Q-C 31599, May 20, 1991 (M- 00988);

      Interview postal inspectors; Management Letter, March 10, 1981 (M- 00225);

      Review relevant documents; Step 4, H4N-3W-C 27743, May 1, 1987 (M- 00837);

      Review an employee's Official Personnel Folder when relevant; Step 4, NC- E 2263, August 18, 1976 (M-00104);

      Write the union statement of corrections and additions to the Step 2 decision; Step 4, A8-S-0309, December 7, 1979 (M-01145).

A steward has the right to conduct all such activities on the clock (see below).

Right To Steward Time On The Clock.

Although a steward must ask for supervisory permission to leave his or her work area or enter another one to pursue a grievance or potential grievance, management cannot "unreasonably deny" requests for paid grievance-handling time.

Management may not determine in advance how much time a steward reasonably needs to investigate a grievance. National Arbitrator Garrett, MB- NAT-562/MB-NAT-936, January 19, 1977 (C-10835). Rather, the determination of how much time is considered reasonable is dependent on the issue involved and the amount of information needed for investigation purposes (Step 4, NC-S-2655, October 20, 1976, M-00671). Steward time to discuss a grievance may not be denied because a steward is in overtime status (Prearbitration Settlement, W4N-5C-C 41287, September 13, 1988, M-00857). It is the responsibility of the union and management to decide mutually as to when the steward will be allowed, subject to business conditions, an opportunity to investigate and adjust grievances (Step 4, N-S-2777, April 5, 1973, M- 00332).

If management delays a steward from investigating a grievance, it should inform the steward of the reasons for the delay and also of when time will be available. Likewise, the steward has an obligation to request additional time and give the reasons why it is needed. (Step 4, NC-C 16045, November 22, 197 8, M-00 127).

An employee must be given reasonable time to consult with his or her steward, and such reasonable time may not be measured by a predetermined factor. (Step 4, HIC-3W-C 44345, May 9,1985, M-00303)

Although Article 17, Section 4 provides that the grievant and a steward shall be paid for time actually spent in grievance handling and meetings with management, there are no contractual provisions requiring the payment of travel time or expenses in connection with attendance at a Step 2 meeting. (Step 4, N8- S-0330, June 18, 1980, M-00716) Nor does the National Agreement require the payment of a steward who accompanies an employee to a medical facility for a fitness-for-duty examination. (Step 4, NC-N-12792, December 13, 1978 M- 00647)

The appropriate remedy in a case where management has unreasonably denied a steward time on the clock is an order or agreement to cease and desist, plus payment to the steward for time spent processing the grievance off-the-clock which should have been paid time.

Right To Information.

The NALC's rights to information relevant to collective bargaining and to contract administration are set forth in Article 3 1. This section states stewards' specific rights to review and obtain documents, files and other records, in addition to the right to interview a grievant, supervisors and witnesses.

Steward requests to review and obtain documents should state how the request is relevant to the handling of a grievance or potential grievance.

Management should respond to questions and to requests for documents in a cooperative and timely manner. When a relevant request is made, management should provide for the review and/or produce the requested documentation as soon as is reasonably possible.

A steward has a right to obtain supervisors' personal notes of discussions held with individual employees in accordance with Article 16, Section 2 if the notes have been made part of the employee's Official Personnel Folder or if they are necessary to processing a grievance or determining whether a grievance exists (see Mittenthal H8N-3W-C 20711, February 16,1982, C-03230; Step 4, NC-S 10618, October 8,1978, M-00106; Step 4, G90N-4G-C 93050025, February 23, 1994, M-01190).

Weingarten Rights.

Federal labor law, in what is known as the Weingarten rule, gives each employee the right to representation during any investigatory interview which he or she reasonably believes may lead to discipline. (NLRB v. J. Weingarten, U.S. Supreme Court, 1975)

Weingarten rule does not apply to other types of meetings:

    Discussions.

  Article 16, Section 2 provides that "for minor offenses by an employee ... discussions ... shall be held in private between the employee and the supervisor. Such discussions are not discipline and are not grievable." So an employee does not have Weingarten representation rights during an official discussion.

  Employees do not have the right union representation during fitness for- duty physical examinations.

The Weingarten rule applies only when the meeting is an investigatory interview-when management is searching for facts and trying to determine the employee's guilt or decide whether or not to impose discipline. They do not apply when management calls in a carrier for the purpose of issuing disciplinary action-for example, handing the carrier a letter of warning.

An employee has Weingarten representation rights only where he or she reasonably believes that discipline could result from the investigatory interview. Whether or not an employee's belief is "reasonable" depends on the circumstances of each case. Some cases are obvious, such as when a supervisor asks an employee whether he discarded deliverable mail.

The steward cannot exercise Weingarten rights on the employee's behalf. And unlike "Miranda rights," which involve criminal investigations, the employer is not required to inform the employee of the Weingarten right to representation.

Employees also have the right under Weingarten to a pre-interview consultation with a steward. Federal Courts have extended this right to pre-meeting consultants to cover Inpsection Service interrogations. (M-01092, U.S. Postal Service v. NLRB, D.C. Cir. 1992).

In a Weingarten interview the employee has the right to a steward's assistance - not just a silence presence. The employer violates the employee's Weingarten rights when it refuses to allow the representative to speak or tries to restrict the steward to the role of a passive observer.

Although ELM Section 666.6 requires all postal employees to cooperate with postal investigations, the carrier still has the right under Weingarten to have a steward present before answering questions in this situation. The carrier may respond that he or she will answer questions once a steward is provided.


Source: The Joint Contract Administration Manual (JCAM) June 1998 edition, pages 17-4, 17-5, 17-6, 17-7. The arbitration ruling cited here (MB- NAT-562/MB-NAT-936, January 19, 1977) is available in PDF format for those who would like to view it. To obtain the file send an email to ZOOSTEW@aol.com requesting file C-0427B.PDF. It should be noted that the JCAM listed here and the print copy references C-10835. Research shows this is not accurate. When cross referencing the USPS number the file referred to is C-0427B. Although C-10835 refers to the same subject it is not authored by Sylvester Garrett. The arbitrator in this ruling (C-10835) is Patrick Harden.

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