Board Proposal to Change Article 7: Discipline Process

Summary

AU is proposing changes to the discipline process that will:

1. make it harder for AUFA to defend members,

2. increase the financial consequences of discipline to members, and

3. lower the cost of discipline to AU.

In short, the employer wants to make it easier to discipline AUFA members.

Current Process

If a supervisor identifies a possible problem with an AUFA member’s behavior, the supervisor investigates. The AUFA member must have an opportunity to know about and respond to the supervisor’s concerns (most often in a meeting).

The AUFA member is entitled to union representation during this process.

What is the employer allowed to do?

The employer may immediately impose MINOR forms of discipline. MINOR discipline includes:

1. a letter of reprimand

2. suspension with pay

3. denial of rights and benefits

What is the employer NOT allowed to do?

 The employer may NOT immediately impose MAJOR forms of discipline. MAJOR discipline includes:

1. suspension without pay

2. termination

When can the employer impose MAJOR forms of discipline?

The employer may only impose MAJOR forms of discipline

1. once an appeal is heard, OR

2. at the expiration of the period of time within which the AUFA member can file an appeal.

What happens at the APPEAL stage?

At present, appeals are heard by a three-person panel, made up (typically) of one employer-nominated lawyer, one member-nominated lawyer, and one person (usually an arbitrator) appointed by the two nominees to chair the panel.

The panel then hears evidence and either:

1. confirms the discipline,

2. varies the discipline, OR

3. dismisses the discipline.

Concluding an appeal can take months.

Lawyers and arbitrators are expensive. Who pays for the appeal panel’s work?

The employer pays for the cost of the three-person hearing panel, as well as the cost of AU’s own lawyer. AUFA pays for the lawyer representing the AUFA member.

Proposed Changes by the Board

The Board proposes limiting what AUFA representatives are permitted to do during a disciplinary investigation. Acceptable activities include witnessing the event, advising a member of their rights, and facilitating the investigation.

1. The Board proposes all discipline (including suspension without pay or termination) will be applied immediately. The financial impact of any error AU makes in the disciplinary process will thus be borne by the AUFA member until an appeal is heard.

2. The Board proposes that AUFA and AU split the cost of an appeal panel. This will increase the costs of discipline for AUFA by about $20,000 per appeal and, consequently, lower the cost of discipline for AU.

What effect would these changes have?

The Board’s proposal will have three main effects:

1. AUFA representatives would be less able to represent members in hearings. AU’s proposal may preclude AUFA representatives from raising procedural concerns, introducing exculpatory evidence, and asking questions during an investigation (depending upon how the employer interprets the restrictive language during the investigation).

   Recent employer behavior during investigations suggests it is important for AUFA representatives to have significant latitude in what they say and do during an investigation.

   Requiring AUFA representatives to “facilitate” the investigation entirely misunderstands the role of the union. AUFA representatives are present at investigations to represent AUFA members’ interests, not to help the employer conduct the investigation.

2. Immediate termination or suspension without pay will have serious financial consequences for AUFA members. It can take months to get a hearing scheduled. During this time, the AUFA member will be without pay.

3. This proposal allows AU to use the disciplinary process illegitimately to punish AUFA members. An example of AU using delay against a member (in a slightly different way) can be found here.

4. Reducing the cost of discipline appeals to AU will make using discipline more attractive to AU.

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