legal advisory

Union Group: Lizette Cruz, Sarah Walterman, Catherine McBride, and Lasamy Mila

VOICETHREAD LINK: https://voicethread.com/myvoice/thread/18502246/118101689/110314144

Witness One: Grievant- Mr. G. Chuckles (Catherine)

1. Who are you?

I am George Chuckles. I was a retention specialist.

2. How long have you worked for the company?

12 years.

3. You were terminated for an incident, give us more details about the incident?

I’ve got this running joke with a couple of my pals here and I sent one email to the wrong person by mistake. It was supposed to go to A-Aaron but it went to E-Erin instead, same last name. She was offended by its content. Management had their investigatory meeting with me to gather information about this, and my union steward, Melissa Pink, attended and represented me at the meeting. As a result, I was immediately fired. Ms. Pink and I filed a union grievance the same day because I felt the termination was too severe. I have never received a reprimand in my entire 12 years with the company. This is not fair because I know that my co-workers also shared emails and jokes that are also sexual in nature. We were never told by management that was unacceptable. I truly felt that my termination was in violation of the union contract, which states, “The Minnesota Department of Baby Boomer Retention & Relations will discipline or discharge employees only for just cause” The progressive discipline steps outlined in the contract were not followed. Instead, management jumped to the termination step.

4. *Present email in question* Mr. Chuckles, can you explain what this is?

This is the email that I accidentally sent to the wrong Erin. This is a pretty typical exchange. It’s about comparing coworkers to celebrities. It’s a running joke between friends, me and Aaron.

5. Was it ever communicated to you that this activity was prohibited?

Never. It’s pretty widespread here, not always photos. No one’s ever said anything about it even when they read over my shoulder, even managers. Stan Wire gets this stuff too, this is no secret. Stan and I worked on a project together. He’s in IT. I would think that if this kind of thing isn't OK, he would stay away from it, or tell us to knock it off. But no one else said that it was wrong or that I would get fired for it.

6. Explain what you meant by “why am I being singled out?”

My job is all about building relationships with other Boomers and we have all kinds of ways to connect with clients. Look, if someone had told me that this stuff is making my colleagues feel bad, I would have stopped, if someone objected, I would have quit, but they participated, and management did nothing. It was acceptable. This is the norm in the department, everyone does it. In fact, during the investigation I told management about how widespread it is, but they chose not to investigate my allegation. I have a list of all the emails that I received from other employees as well.

Witness Two: Intended Recipient of Email- Mr. Aaron Maloney (Lizette)

1. Who are you and what is your position?

My name is Aaron Maloney. I work in the Finance Department as a Financial Analyst.

2. How long have you worked for the company?

I’ve worked with the company for 10 years.

3. How do you know the grievant, Mr. Chuckles?

I worked with Mr. Chuckles when I was first hired. We worked together as retention specialists for nine years, so we are very close friends. He really helped me when I first started the job, and our friendship has grown throughout the years.

4. Mr. Mahloney, can you describe the email communications you and Mr. Chuckles take part in?

The email communications exchanged between us were jokes made about our current positions. I ended up realizing that being a retention specialist wasn’t for me, so I transferred to the Finance Department. Mr. Chuckles and I still stayed in touch through email. Mr. Chuckles and I both agree that our occupations are stressful, especially with a lack of management. Our emails made light of the situation because they were always in a joking manner. It was nice communication with someone who had the same stressors and that’s all it was. Thinking about it now, we should have just communicated through text, but the email policy is loosely followed amongst the staff. No one has ever gotten penalized for this, so we continued communicating through email. Mr. Chuckles and I also share the same humor, but I can see how it can be considered offensive to other people who see it.

5. *Presents email chain* Mr. Maloney, is this typical communication between employees in the company?

Yes, I would say that it is. The email policy is not strictly enforced. As I’ve said before, the entire 10 years I’ve been with the company, I have not heard of anyone getting terminated for the email policy.

6. Did you ever feel unsafe when speaking to Mr. Chuckles?

No, I have never felt unsafe when speaking to him. The email communication was consensual between us, just humor to have on the side while working. He has never harassed me with unwanted messages.

7. Do you know whether the Grievant, Mr. Chuckles, has been involved in other incidents like this?

No, I don’t believe so. Other than him accidentally sending the email to Ms. Mahloney, I feel that he would have told me. Mr. Chuckles is a kind man that is always available to help, treats everyone with respect, and he often keeps to himself. He would not send other employees unwarranted emails. Since other employees haven’t been reprimanded for emails that are not, “professional” I feel that Mr. Chuckle’s termination was unwarranted, considering the fact that he has been a great employee ever since I started working with him.

Witness Three: Grievant’s Former Supervisor- Ms. Chief (Sarah)

1. Ms. Chef can you explain your position in terms of when you were a supervisor for the grievant Mr. Chuckles?

My name is Ms. Mavis Chief, and I am the Director of the Retention Department at The Minnesota Department of Baby Boomer Retention & Relations. My position oversees the retention specialists in the company and ensures everyone is properly performing their jobs. I also manage team projects as they come up, which allows me to have the opportunity to work with individuals from outside of my department.

2. How long were you a supervisor for Mr. Chuckles? I

I have been in my position for 20 years and I was a direct supervisor for Mr. Chuckles for 11 years at the company, before he moved to a new department.

3. *Present performance review* Ms. Chef, on Mr. Chuckles’ performance review, you ranked him as outstanding in the taking initiative section, while also citing a specific example, can you testify on other examples of when Mr. Chuckles went above and beyond in his position?

There are many examples I can think of, where Mr. Chuckles went above and beyond in his position. One being, when we were trying to decide on a new way to survey our customers, Mr. Chuckles worked tirelessly on that project to research what would be the most effective way, and if it was feasible for our company. On top of that, he came up with how we would implement the new surveying techniques, and it was received with positive feedback and more responses than we’ve ever had. We used to mail out responses and wait for the mail to come back. Mr. Chuckles suggested we try calling the customers because a large portion of our customers were beginning to have phones. The callout method brought in more responses and in a more efficient way, as we did not have to wait for the mail to come in. We continued this method for many years, until it needed to be re-evaluated again.

4. Ms. Chief, as I understand it, your company conducts 360-degree performance reviews, can you share some feedback you have received from Mr. Chuckles’ coworkers and customers who were in charge of evaluating him?

Across the board, Mr. Chuckles consistently receives high praise from both his fellow coworkers and the customers he serves. Customers can be cited saying that Mr. Chuckles is always willing to help with any questions they may have, and he has a way of explaining things that makes it more clear for them, without making them feel dumb for asking the questions in the first place. Coworkers say that Mr. Chuckles makes the workday more exciting and fun, while also understanding when it’s time to work.

5. *Present sexual harassment training log* Ms. Chief can you explain why Mr. Chuckles has not received a sexual harassment training since 2015? Unfortunately, our management has not prioritized sexual harassment training over the past few years, and it is something that has fell to the wayside because of that. Mr. Chuckles is not the only individual who has not received training since 2015, most of our organization has outdated sexual harassment training. I know I will be working on getting our department re-trained, so we are all on the same page going forward.

6. And finally, Ms. Chief, can you explain the culture of the company? Specifically, in terms of any other interactions you have seen similar to the one Mr. Chuckles partook in? We have a more laid-back culture than most companies, which may come as a surprise to some people. The employees have real friendships and tend to joke around a lot because they know each other well enough to know their sense of humor. A lot of the jokes center around topics that may offend some people, but it’s nothing new. I’ve seen numerous occasions of employees making a comment and then another individual will speak up and say it offended them, and the employees will apologize and censor their speech around that employee. There is a sense of respect in everything we do, even when they’re joking around. It saddens me to see something taken out of context and losing a good employee because of it.

Witness Four: Past project colleague of Mr. Chuckles, Mr. Wire, who works in IT (Catherine)

1. Mr. Wire, can you explain your position at The Minnesota Department of Baby Boomer Retention & Relations?

I’m Stan Wire, I am a software maintenance manager in IT. I’ve been here for 8 years. I started in systems and moved to software 3 years ago. I ensure our platforms are functioning, install updates and train super-users before and during a launch. I do search requests from the unit leaders all the time regarding the usage of email of other employees, this is not just George. The usage of company email in this nature is well known throughout the organization, not just in George’s department.

2. Mr. Wire, can you explain how you know the grievant, Mr. Chuckles?

I just knew him from work, plus we had a pretty big configuration project we did a couple years ago, the project was about 6 months long and we became good friends. George helped configure the user side and got all the outside client volunteers to run the pre-launch that was pretty important in our testing. George knows that I do email searches, this is no mystery to him. No one tried to hide these conversations. I have shared with George many incidents where other employees used the email inappropriately, similar to what George did, but management did not reprimand them. I am perplexed as to why they decided to terminate George.

3. Are you aware of other employees using company email for this type or other personal purposes?

Yes, I am fully aware because I am the one who would conduct the searches. When this came up, I went in and did a scrub. I’d say 90% percent of employees use their work email for outside stuff, even me. My manager doesn’t even have a personal email. It’s all done through work email. I truly feel that this termination is not fair to George because I know other employees have done the same thing but those employees still remained working here. If management is going to hold George accountable for this email incident, they have to hold everyone accountable too. I feel Goerge’s termination is unfair.

Witness Five: American Professional Union Representative - Ms. Pink (Lasamy)

1. Can you please introduce yourself?

My name is Melissa Pink, I am the Chief Steward for the American Professional union.

2. Can you tell us your involvement with George’s termination?

I am the Union Steward who represented George during the investigatory meeting and also during the union grievance hearing process. I have known George for 12 years and this is his first investigatory meeting that I represented him. I attended the investigatory meeting while management asked him questions regarding the emails he sent out to the wrong person. He meant to send it to his good friend, but it went to a different person. George wanted to give his apology and he didn’t mean to offend that co-worker. He admitted the emails he sent out and shared were sexual in nature. He also stated other employees shared similar kinds of emails. George also informed management during the investigation that others have done the same but why he was the only one being investigated. Management did not respond but moved to their next interview questions.

3. Can you explain to us why Mr. Chuckles’ termination was in violation of the labor agreement, Article 41, Discipline? As outlined on Exhibit 1, Article 41, states “The Minnesota Department of Baby Boomer Retention & Relations will discipline or discharge employees only for just cause” I reviewed George’s personnel file, I found no previous discipline, not even a Coaching during his 12 years of employment. The progressive discipline process in the contract was not followed. Management skipped the steps but moved to termination knowing that he has no prior disciplinary actions, no coaching, a written reprimand, or a suspension; therefore, it is evident that management action was in violation of Article 41, Discipline. Please see Exhibit 1 in PowerPoint

4. Can you explain the seven tests of just cause?

In 1964, Arbitrator Carroll Daugherty established a single standard to determine if the discipline or discharge of an employee can be upheld as a just cause action. In the Seven tests of just cause, the employers must be able to answer YES to all Seven questions. It means that in union settings, the employer must have a reason to act in disciplining an employee and the reason must be just and fair. Please see Exhibit 2 in our PowerPoint

1. Was the rule reasonably related to efficient and safe operations?

2. Was the employee received a prior warning of the consequences of his conduct?

3. Did management investigate before imposing the discipline?

4. Was the investigation fair and objective?

5. Did the investigation produce proof or evidence?

6. Were the rules applied to everyone and without discrimination?

7. Was the discipline reasonably related to the seriousness of the offense and the past record?

Just cause is the standard that management must adhere to when disciplining or discharging an employee.

5. Can you walk through how the seven tests of just cause applied to this case?

The Union believes that management failed to meet 3 tests for just cause:

2. George was never given a warning of the consequence before because his personnel file did not have any prior disciplines, not even a Coaching.

Management was never provided proof that he was forewarned.

Management never brought up this issue in his performance reviews either.

4. Management failed to conduct a fair, objective and thorough investigation because management did not further investigate his allegation that other employees were also engaged in similar email exchanges. When George reported to management during the investigatory meeting that he was singled out, there was no effort made from management, George was never invited for an intake meeting so he could provide names and details of the allegation.

#7. The termination was too severe, and this disciplinary level was only applied to George because Management was not able to cite a previous termination case with similar infractions. Mr. Chuckles was a long-term employee who worked hard, was committed, and was a loyal employee for 12 years. He was an exemplary employee with impeccable employment records.

The Union truthfully applied the 7 tests of just cause to George’s case, and found that Management failed the test and there are clearly 3 tests out of 7 that were not met. Therefore, the remedy sought by the union is to reinstate George to his former position with back pay and reducing the discipline to a written reprimand.

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Physical Evidence - In Exhibits Below

Exhibit One: Email in Question

Attachment:

Exhibit Two: Email Chain Between Mr. Chuckles and Mr. Maloney

Exhibit Three: Mr. Chuckles’ Most Recent Performance Review

Exhibit Four: Documentation of Previous Sexual Harassment Training

Exhibit Five: Labor Agreement between Minnesota Department of Baby Boomer Retention & Relations and The American Professional Unit

ARTICLE 41 – DISCIPLINE

Section 1. The Minnesota Department of Baby Boomer Retention& Relations will discipline or discharge employees only for just cause.

Section 2. Discipline, when administered, will be in one of the following forms and normally in the following order:

A. Verbal Warning

B. Written Warning

C. Suspension

D. Discharge or disciplinary demotion

Exhibit Six: Seven Tests for Just Cause

Source: Burr Consulting, LLC

Exhibit Seven: A report run by IT employee, Mr. Wire. Evidence shows the number of external emails sent within the company.

Support Run: intra-email single hit all users 1/1/20 - 12/31/20

Query: MODBBRR intra-net - outside address

Request - Wire, Stan

Summary: 5,000 Users Scanned - 4,103 users matched

Found - 7,435,663

External - 4,523,410

Detail

Adams, L. - 14

Addams, M. - 65

Aften, P. - 1,204

Allen, J. - 155

Amberg, P. - 4,455