In my time as a manager, I had only two grievances go to arbitration. The majority of our cases have been handled at the second or third level. One grievance that stands out in my mind as the most difficult was when we fired a rep for poor performance. This particular rep was a seven year employee. Until about five years ago, it was difficult for our company to fire anyone based on performance. It took a great deal of documentation to prove the firing was warranted.
This particular rep started having personal and medical problems around four years in his employment with BellSouth Advertising and Publishing Corporation, (BAPCO). This rep was never a strong performer, but when he started having problems his performance went to nothing. This rep was involved in a car accident in 1995 that allowed him to stay on benefits for one year. In 1996, he was diagnosed with diabetes. His diabetes was severe enough to warrant putting him on benefits again for almost a year. In 1997, he came back to work for two years until 1999 when we was convicted of assault and battery on his wife. He filed for EAP, (Employee Assistance Program) and was allowed to keep his job while going through therapy. During this time, his performance was suffering badly.
We terminated this employee in the winter of 1999. We collected data on this rep for almost 2 years. The file that I had was three inches thick full of documentation on performance, his several counseling statements on misconduct and all of his steps of discipline. Our discipline process has four steps. The first step is counseling, the second a warning, the third is suspension and the final is termination. This rep had had four counseling statements, three warnings, two suspensions and two terminations.
This was the reps first termination was for performance. The grievance process started with the first level which I held. Upon hearing the information presented, I upheld the termination of the employee. The documentation that we had was sufficient in our opinion to uphold the termination. The grievance moved to the second level with our regional sales manager. The union decided to turn this into a discrimination case. They protested that this employee was discriminated against because of his disability with diabetes. The union made the argument that we were trying to get rid of this employee because of his diabetes. The company’s position was that this was purely on his poor performance. We had supporting documentation showing this. The grievance was moved to the third level. I wrote the brief for the third level grievance and outlined the data showing the rep was less than satisfactory for the past fifteen months. Labor relations upheld the company position and the union requested arbitration.
During the arbitration, the union pulled all of this rep’s past discipline and used it against us for their case. The union was able to show that this pattern of problems was a direct result of representative’s diabetes. The arbitrator made the decision in favor for the sales rep and the union. The reps job was given back. The entire process took around three weeks from termination to rehiring.
After the arbitration, the rep again went out on benefits for three months. When the rep returned, we started with the steps of discipline again based on performance. This time, we were determined to make sure we documented everything completely and based it solely on the lack of performance. After nine months, we gathered enough data to terminate this employee.
When the grievance process started, it quickly went through the first three levels. At each level, there was sufficient evidence of the lack of performance and it was well documented that management did everything they could to develop this rep including additional training. The union had no argument against the bad performance. It was decided that this employee’s termination was upheld.
The truth about the process is that the union and the company often make trades at the top levels. The union was well aware of the desire to terminate this sales rep. During the third level of the dispute process, the union offered to withdraw their grievance and settle based on two requests. The first request was that the terminated sales rep be paid three months salary in addition to keeping his retirement benefits. This was to allow the rep to continue his insurance until he could get another job or secure additional insurance. The second part of the request was that we dismiss two other grievances we currently had on another rep who happened to be the BAPCO union rep in our office.
The dispute resolution process that we use works, but is very complex. It is very important that managers document everything. The smallest things can get a grievance turned and the discipline pulled. The union will use whatever means possible to win a case. The process does settle disputes, but it is a continual game of give and take. As a manager, I have to be willing to give in on some grievances in order to win the ones that are most important.
