Someone told me to come here...

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Someone told me to come here...

Post  macchan on Mon Sep 29, 2008 6:55 pm

so here is my first topic of what could be many, because the issues I have had with my termination are many and I am still in the process of trying to get an attorney but I have to go thru the union process first.

In 2003 NMFA theft or dishonesty of any kind was Cardinal Sin terminated on first offense under work rules its now in CBA as #3 contract.

New 2008 Contract says all rules in contract 3 must be followed unless addressed in a supplement. this was in #2 contract.

2008 Supplement says You must be discharged for PROVEN DISHONESTY.

I was fired for stealing time having a 2 hour gap during deliveries although I was working or on break during the majority of the time. And the route I drove had 3 hours of down time the previous 3 months ever single day with other drivers.

My answer is this:

1... Theft is dishonest... And in the previous contract theft was enough for termination. You can't steal without being dishonest, but that is not discharged under teh supplement.

2. dishonesty of any kind was also dischargeable under the old contract but isn't under the Central Regional PUD supplement.

3. According to my termination letter you fired me for theft and dishonesty using two old standards...

4. Proven dishonesty is the standard you need to meet and you have not met or even tried to meet that standard. No interview of employee, no interview of any potential witnesses, and firing me right when I returned from FMLA with my wife still in the hospital. (may not need) I did the same exact same I have done for the past 4 1/2 years which has always been known and therefore approved by management. I clocked all my breaks and left early under FMLA with management approval. You only state 1 hour 50 min gap and that in itself does not mean anything without context...

Or something like that.


I like it with work,

macchan
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Re: Someone told me to come here...

Post  JoeC (McGruff) on Mon Sep 29, 2008 8:29 pm

Have you been through the company investigate process yet? Even under the old contract the employer has to conduct some kind of hearing. Under most union grievance procedure after the hearing the Union can move the grievance to the head of the company or the labor relations dept (review contract for procedure). If the dept agrees with the findings this gives the union the right to go into binding arbitration. That is where you stand now. The FMLA is issue may or may not enter into this at all. If the company terminated you for filing FML that could give rise to litigation, or be precluded by the labor laws.

Your attorney if retained will explain that.
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Re: Someone told me to come here...

Post  JoeC (McGruff) on Mon Sep 29, 2008 8:39 pm

One other thing file for unemployment since the firing seems so arbitrary,it may be ripe for appeal as well.
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I am glad you mentioned unemployment...

Post  macchan on Tue Sep 30, 2008 12:01 am

I filed it and got unemployment. When management filed their first reply they said I was fired for insubordination not theft and dishonesty as they alleged in my termination letter. I have requested a copy of the unemployment filing from the Unemployment office but they have not responded to
me about it as of yet.

Does the unemployment office have to give me a copy of what the company filled out and alledged they terminated me for.

Can I do anything with the 2 different stories the company has used?

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Re: Someone told me to come here...

Post  JoeC (McGruff) on Tue Sep 30, 2008 12:04 am

Possible have you contacted an attorney about a wrongfull termination suite in state court? What state are you in?
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Re: Someone told me to come here...

Post  bears00 on Wed Oct 01, 2008 3:52 am

Dumb question, but what WERE you actually doing during the 2 hours in question ..... AND....
are you required to run a log book (CDL driver)?
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FMLA / Union Question:

Post  macchan on Sat Oct 11, 2008 4:18 pm

I was terminated awhile back and I am thinking of filing with the DOL on FMLA Retaliation. I am going to keep this short as possible.

I was pulled off FMLA leave by HR Specialist. I had called to complain to her because management kept telling employees I was going to lose my job because my FMLA had been denied. (it hadn't) I said please ask them to stop and please call me back. She's calls me back from her car after having talked to my supervisor. I would think she call me first but who knows. He doesn't know anything and basically mucks up the whole think and she calls me back threatening my job. I go to work next day. After this I file a litany of grievances over this and other items, and ask to meet with HR representative. Never hear anything else from them. Two weeks after incident we hear 5 grievances I wrote. 3 of them I either won or got an apology for the other two grievances were related to my FMLA situation and because the labor specialist doesn't know dick and neither does my BA
they were supposed to get ahold of HR to set up a meeting.

2 weeks later my wife becomes suicidal and went missing (out of character) and I request to leave at 1:30. At 2:30 management finally lets me leave after I blow up in tears on my route and can barely make it through a conversation, and steward tells him he has never heard me so upset. I have FMLA for Bi-Polar and Chrons which I can take from a day to 2 weeks. My wife was actually in hospital whole time in the emergency room. (they never asked if she needed anything, just left her in room for 5 hours) She tried to leave but the doctor was going to put her in the psych ward if she did. (she had went to dr. that morning and they put her in hospital that is why she was missign) So I go back to 3 days later after taking my FMLA leave because I was tore up. They fired me for having a 2 hour gap in my delivery schedule. 50 minutes was lunch the other time is accounted for except about 12 minutes making calls and such to locate my wife.

Now I am following the grievance process and my CBA says I have t use the grievance procedure for FMLA to. How that works when nobody knows it is beyond me. Anyway do I have a legit beef for the double pay FMLA offers for gross misconduct on there part or whatever they call it?

THIS POST MOVED FROM FMLA TO LABOR LAW BY JoeC

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Re: Someone told me to come here...

Post  JoeC (McGruff) on Sat Oct 11, 2008 11:00 pm

Contact an a attorney familiar with labor law (unions) as well as FML. As far as the DOL agency action is not required under the FMLA to proceed to trial only a court process will get the employer's attention. All administrative remedies are limited and the agencies have little interest in pursuing a claim apart from minimal investigation. The cba may have ambiguous provisions surrounding FML. Under the FMLA the statute is clear considering union contracts Title 29 U.S.C.§ 2652(a) sets out such a restriction. That section provides that nothing in the FMLA shall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this Act . . . .

So it may not be time for an attorney yet this may have to go through the arbitration proses first, or an attorney may see a statutory violation it is not clear. Only an attorney give the clear answer for sure.
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Re: Someone told me to come here...

Post  bears00 on Sun Oct 12, 2008 6:32 am

At this point, I don't think an attorney would take your case. You need to ATTEMPT the grievance process first. The company would be VERY SUCCESSFUL at getting your case dismissed because you failed to live up to your end of the contract. A CBA (collective bargaining agreement) isn't just a list of what the company must do for the the employee, it is also an agreement of what the employee must do for the company. If your grievance process fails you, I would think that would give rise to a suit.

One caveat here. McGruff and I often see union members who come to various boards for advice. It ALWAYS raises red flags for us. WHERE IS YOUR UNION LEADERSHIP? Don't you have a shop steward or a business agent? If they aren't representing YOU and YOUR NEEDS, then what are you paying them dues for? (not an attack, just some thought provocation)
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Well I'll give you all the information you want...

Post  macchan on Sun Oct 12, 2008 7:42 am

in an email. But my union sucks balls. My steward and union don't know anything. They are completely and I mean completely ignoring my requests for meetings. I have a hearing in a couple weeks or so and have not heard one drop of FMLA talk in my first meetings. I got fired for something else so I filed one grievance on the dismissal and one on the FMLA Retaliation charges. Fired 2 weeks after filing complaints about FMLA and harassment on manager. BA says none of that matters. (and I am not kidding) Says I did this, that, and the other. Also said I would most likely lose at next hearing and am I sure I want to go on with this. I found 2 seperate clauses in CBA that kill their dismissal b4 it gets started. Now obviously I don't know how committee hearings go, but if the contract says you have to use C to terminate, and you use a different part of the contract A&B I think your screwed. On a totally difrerent level if you use only 1 type of information from lets say and employee (not actual) and the contract says you can't use 1 type of information without other evidence I say their screwed. MY BA (who I had never met and took place of old one) and the Labor dick are in cahoots as I obvioiusly pissed of somebody. So there you go I forget the question now but I just got my statement done for my hearing and I am building a case summary for lawyers. They really screwed the pooch and the union refuses to talk to me. BA hasn't even sat down 1 on 1 and talked with me. Ridiculous.

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Re: Someone told me to come here...

Post  bears00 on Sun Oct 12, 2008 9:50 am

Go see an attorney that is well versed in the NLRA. You will probably have to go after your union.
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I am sure trying...

Post  macchan on Mon Oct 13, 2008 2:29 am

But all want to wait until after the union process takes place. Myself I am would rather be proactive and have the ability to keep some
things back, not challenge union verbally, and make an ass out of myself. Although that will probably happen regardless. Anyway I have
told them I would pay them by the hour to just talk to me. So I must be doing something wrong. Anyway I spent the whole weekend just
creating a packet for the lawyer copying paper, printing out information. I'll be ready when somebody asks. You all have been very helpful
and I thank you for it.

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Re: Someone told me to come here...

Post  JoeC (McGruff) on Mon Oct 13, 2008 2:42 am

Is arbitration currently pending?
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no arbitration yet...

Post  macchan on Mon Oct 13, 2008 6:50 am

I have 2 committee meetings to go through yet. Then arbitration. BA has constantly discouraged me and he just started being
my BA the day of my Second firing meeting. Its been a total pain in the ass. Classic Company denial, trying to bleed you out of money, and discourage the crap out of you. Only this time I have to fight my union and the company because both are working against me. I much prefer dealing with just the company if the company is a Just cause employer. The union sucks and hasn't came up with anything for me and keeps trying to not give me all my grievances filed in the past. I need them to prove FMLA Abuse which is guaranteed victory, or as close as you could come.

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Re: Someone told me to come here...

Post  JoeC (McGruff) on Mon Oct 13, 2008 1:17 pm

Oh so your only at stage two of the three part grivance proceedure. Who reviews the case at stage three, Industrial relations (Some companys called Human relations)? This has a way to go ,who is the bargaining unit?
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Notification of termination...

Post  macchan on Mon Oct 13, 2008 9:58 pm

While trying to close up some loose ends I would like to know the following so I can drop it all my punch list.

When I was verbally terminated the company refused to give me a written notice they had in their hands. They said they would mail it to me. They did mail it to me registered mail but during by 2nd meeting try to claim untimely. The union totally acted dumb saying a verbal notice would suffice so I had to dig through the contract to prove I was right at 10 days, but I am wondering if that was bs by union. Here is the contract verbage:

Deadline for Filing a Grievance Protesting Disciplinary
Action.
Appeal from a discharge, suspension or written warning
notice must be taken within ten (10) calendar (exclusive of
weekends and those holidays designated in this Agreement)
days of the employee’s receipt of notice of same


So what does "receipt of notice mean. Additionally the union sent a letter on my behalf to request a meeting on my termination. If they can give verbal notice wouldn't a letter from the union suffice as an appeal.

I am trying to button up all the problems I had with my representation and this is on my mind tonday.

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Re: Someone told me to come here...

Post  JoeC (McGruff) on Mon Oct 13, 2008 11:24 pm

Additionally the union sent a letter on my behalf to request a meeting on my termination.
Did they file within the ten days for the meeeting?
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Re: Someone told me to come here...

Post  JoeC (McGruff) on Mon Oct 13, 2008 11:39 pm

I merged all three posts into one topic to reduce any confussion. Since all your questions stem from one single event.
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Re: Someone told me to come here...

Post  Mr. Pink on Tue Oct 14, 2008 12:13 am

macchan wrote:While trying to close up some loose ends I would like to know the following so I can drop it all my punch list.

When I was verbally terminated the company refused to give me a written notice they had in their hands. They said they would mail it to me. They did mail it to me registered mail but during by 2nd meeting try to claim untimely. The union totally acted dumb saying a verbal notice would suffice so I had to dig through the contract to prove I was right at 10 days, but I am wondering if that was bs by union. Here is the contract verbage:

Deadline for Filing a Grievance Protesting Disciplinary
Action.
Appeal from a discharge, suspension or written warning
notice must be taken within ten (10) calendar (exclusive of
weekends and those holidays designated in this Agreement)
days of the employee’s receipt of notice of same


So what does "receipt of notice mean.

*PLEASE NOTE THAT THIS IS NOT LEGAL ADVICE*

A big maybe here. Its going to depend on the past practice between the company and the union. Because the above language is somewhat ambiguous, an arbitrator would look at what the company and union have done in the past to make the clock start ticking on when the grievance needs to be filed. Do you need to receive "written" notice? Does the union? Is verbal enough? If verbal is enough, then why would the company have a written document in the first place. These are all arguments that could be made that the clock didn't begin ticking until you received the actual written document.

macchan wrote:Additionally the union sent a letter on my behalf to request a meeting on my termination. If they can give verbal notice wouldn't a letter from the union suffice as an appeal.

I am trying to button up all the problems I had with my representation and this is on my mind tonday.

This would certainly add to your argument that there is some wiggle room in the time provisions of the grievance appeal process. If the Union is claiming that you needed to provide notice of appeal (yourself) within 10 days of being told that you were terminated, you may want to request evidence of past grievance being treated in a similar fashion.

If the company and the union both seem to be lining up against you, you will need evidence against both parties for a successful Duty of Fair Representation (DFR) claim.

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Thanks for merging all of them...

Post  macchan on Tue Oct 14, 2008 12:38 am

I will try and answer some questions I don't know how to quote very well.

Did they file within the ten days for the meeeting?

Yes they filed at 8 days of the verbal notification to me and my steward. Without investigation of course.

The Teamsers are my bargaining unit.

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Re: Someone told me to come here...

Post  JoeC (McGruff) on Tue Oct 14, 2008 12:50 am

Well then they filed timely whether it was verbal termination or in writing. The meeting is the first stage of "my guess" a three step procedure before it moves to arbitration. So you dont have at this stage an unfair representation issue.
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a little history and a question.

Post  macchan on Tue Oct 14, 2008 1:08 am

OK just so I am sure what the concept of fair reprensentation is. Yes they sent the certified letter to the company, but they also sent my notice for the meeting just a day before the meeting, while ignoring a meeting request I sent 2 1/2 weeks earlier. They have not responded to 2 additional requests for a meeting including and threw in a new BA who doesn't no me at all. And didn't bother to inform me of that either. When the company claimed untimliness my BA's acted like they thought I never filed on time even though they knew they had it covered. Made me spend 5 minutes looking it up in the contract. I can't get a job because of this termination and we have to play games.

So my questions is this. Just because I am able to semi represent myself now and probably in the future and win does that relieve them of a duty to represent me fairly?

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Re: Someone told me to come here...

Post  Mr. Pink on Tue Oct 14, 2008 1:22 am

macchan wrote:OK just so I am sure what the concept of fair reprensentation is. Yes they sent the certified letter to the company, but they also sent my notice for the meeting just a day before the meeting, while ignoring a meeting request I sent 2 1/2 weeks earlier. They have not responded to 2 additional requests for a meeting including and threw in a new BA who doesn't no me at all. And didn't bother to inform me of that either. When the company claimed untimliness my BA's acted like they thought I never filed on time even though they knew they had it covered. Made me spend 5 minutes looking it up in the contract. I can't get a job because of this termination and we have to play games.

So my questions is this. Just because I am able to semi represent myself now and probably in the future and win does that relieve them of a duty to represent me fairly?

*PLEASE NOTE THAT THIS IS NOT LEGAL ADVICE*

Just because you are able to represent yourself does not relieve the union of its duty to represent you. Unless you specifically advise the union that you do not desire its representation, the union's duty continues. A union violates its duty of fair representation if it acts in an arbitrary manner, a caprcious manner or acts in bad faith.

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Re: Someone told me to come here...

Post  JoeC (McGruff) on Tue Oct 14, 2008 1:33 am

I would not waive union representation without advice of counsel, the only way I can see a lawyer waiving the grievance procedure is if an attorney wants to proceed directly to court under some other theory of law protected by statute or other legal avenue.
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Lynard Skynard...

Post  macchan on Tue Oct 14, 2008 1:40 am

well sort of my next three steps.

Teamsters is my bargaining unit and I have a Regional Commitee Hearing next Tuesday. 3 company 3 union member panel...

Then I go to National Hearing 2 and 2

Then I go to Arbitration if the Union lets me according to the contract.

I have three more grievances dealing with back pay and a continuing liability grievance on the company. I asked for them to be added to the current docket, but was told they couldn't be. I read the rules and regulation and since it is continuing liability they could. Sent request to BA asking why it wasn't being added and I don't imagine I will hear anything.

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Re: Someone told me to come here...

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