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RVP Message NSW

Brothers and Sisters,

Over the past twelve months, we have seen a fairly dramatic shift in the manner in which the Agency addresses disciplinary matters and therefore we as NATCA representatives have needed to tailor our strategies to ensure our members are properly protected in this changing landscape. In many ways, we have returned to very fundamental labor relations techniques, yet blended them to the more collaborative approaches and relationships that have been cultivated over the past several years. It is evident that we will need to continue to maneuver under these parameters, so it is of the utmost importance that all members, and all representatives, understand the playing field and are prepared.

In order to understand the shift, it is necessary to review how the disciplinary process works under our Collective Bargaining Agreement (specifically Article 10). In short, should the Agency choose to pursue disciplinary action, they must first provide an employee with a proposal articulating the reasons for the discipline and the type of penalty they are seeking. An employee has the opportunity to respond to that proposal which may include, for instance, additional information that might be relevant to the case or perhaps serve as an expression of contrition and remorse. After consideration of the employee’s response the Agency renders its decision, which may result in a determination to not pursue formal discipline, or effectuate a penalty of some sort.

For many years, management has been known to propose harsh and/or disproportionate penalties, only to reduce their proposals in the final decision letters to a lower but still elevated level. For instance, perhaps Management believes a 3-day suspension is warranted for a particular offense. In the initial proposal, however, a manager indicates that a 14-day suspension is sought. After the employee’s response is received the manager issues a 7-day suspension. Many times, if not most of the time, the facts of the case do not support either a 14-day or a 7-day suspension. Management knows that their decision will be challenged, so they “buffer” the discipline so if it is reduced it still meets their “targeted” level of discipline.

During the grievance process, we have had multiple opportunities for the discipline to be either reduced or ultimately overturned by an arbitrator. Many times, this is achieved during Step 3 of the grievance process (PAR), when the Union at the regional level successfully argues a case before a neutral and, based on a non-binding positive ruling, is able to convince the Agency to reduce or rescind the discipline. For the above example, the 7-day suspension might become a 3-day suspension – not surprisingly where it should have been proposed and issued in the first place.

This is how the process worked for many years until recently. In the wake of the issuance of a series of Executive Orders, the Agency is no longer permitted to consider settling cases after the discipline is issued. If discipline is meted out, it stands unless overturned by an arbitrator in a formal, binding process. This substantially restricts our ability to reduce disciplinary and adverse actions after their issuance short of a formal ruling.

Given the status quo, we must use all avenues possible to find solutions BEFORE the decision letter in a disciplinary or adverse action is issued. Employees and Reps need to be proactive and on the front side of any issues. Facts and evidence need to be gathered at the earliest possible stages. Arguments need to be tight and clearly developed at the outset. Regional leadership may need to be looped in early in the process. We must establish a solid foundation and then use it to engage the Agency in a constructive dialogue at the local and regional level. By clearly and convincingly presenting such evidence and arguments, we can and have maximized our opportunities to successfully persuade the Agency to reconsider any proposal and pursue an appropriate course of action from the beginning. In short, we need to buckle up and be ready to tackle issues at the earliest possible opportunity and fight for what is proper and right; not sit back and hope that we will be vindicated later on down the road.

This is certainly not the first time we’ve encountered shifting sands and we have always been able to adapt and successfully overcome such challenges. While discipline may seem like a topic that is foreign to most employees, it is unfortunately more prevalent than most would realize, and it is never clear when an employee might find themselves facing the threat of disciplinary action. Your FacReps have been and continue to be trained to maneuver in this current environment. If you ever find yourself in a situation that could lead to disciplinary action, please engage your FacRep early and work together to stay in front of it. As always, your NSW Leadership team will be there to provide any necessary support and guidance.

In solidarity,

Andrew LeBovidge
Southwest Regional Vice President

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