UNION REP TEST #19 – (Oral Replies)

Very few moments in an employee’s life are as anxiety-producing as a proposed suspension, demotion or removal. That makes it vital that their union rep at the oral reply (OR) do a job that leaves them highly impressed and eager to tell others about how good the union is.  Listed below are some pieces of advice on how to do the best possible job at an oral reply.  Read through them and identify whether each is good advice (G) or poor (P). Our answers follow the statements.

ADVICE

1. Generally, it is best not to give an oral reply because it just alerts management to the flaws in its case that the union plans to use against them in arbitration.
2. If the oral reply is not transcribed, ask for a copy of any notes the oral reply official took and once you have them submit a written copy of your reply if you wrote it out. Include any corrections you see necessary to his notes.
3. Generally, it is best after the procedural preliminaries are finished to open an oral reply with your strongest argument, even if it means you go right to the mitigation or Douglas Factors.
4. Generally, a union rep should not go on the OR record admitting all the facts management alleged are true or that its characterization of the conduct is correct.  If you must refer to either, it is better to say that you are assuming or adopting the facts/characterization only for purposes of argument.
5. Get on the record any facts that management seems to have omitted from its evidence file and if you have documents to substantiate a factual claim give management the document at the OR and highlight the critical parts.
6. If you submit documents to the OR record, ask the OR official to number them and after the OR send the official an e-mail confirming what documents you submitted.
7. Always submit the agency’s entire evidence file it gave you officially to the record.
8. If you refer to any statute, regulation, or MSPB/arbitration decision, always give the OR official a copy.
9. If the OR official does not allot enough time for you to finish your presentation, request the meeting be reconvened so you can finish.  If that is denied, make an official record of it by sending the OR official an e-mail recording the request and denial.
10. It is generally better to focus your reply on only the few more important factors that are relevant to your case. There is no need to mention them all.
11. You owe it to the charged employee to let him/her have some time to share with the OR official what s/he wants.
12. Letting the OR official question the employee is a good way to show that the employee has nothing to hide.
13. Use your right to request any relevant and necessary information before the oral reply; go on the record in the meeting and in a post-meeting e-mail protesting if any has been denied or delayed.
14. Never ask the OR official to mitigate the proposed discipline if you are claiming that the employee’s alleged behavior never happened.
15. Do not confuse the process by raising any potential EEO or ULP objections.  Stick just to discipline-related defenses.

ADVICE ANSWERS

1. POOR ADVICE.  The value of surprise evidence in arbitrations is a myth—or at least hugely overestimated.  In our experience there is a good chance an arbitrator will not even allow it into the record if s/he senses that the union deliberately withheld it from the agency before arbitration.  Those that do, normally reduce the weight they give it greatly.  An oral reply (OR) is the last best chance the member has to change management’s mind before it becomes set in stone.  The OR official does not want to recommend an action to a superior that gets overturned nor do the deciding officials want employees to realize that their decisions are likely to be overturned.  So, use the reply to drive up the agency’s anxiety and its confidence down. The only indisputable time we have seen when a union should not present a reply is if the employee is likely to make things worse in a face-to-face meeting.
2. GOOD ADVICE.  Get as much as you can clearly on the record because if you can later prove that the agency did not even consider some of your arguments you open the door to harmful error and reversal of the agency action.
3. GOOD ADVICE.  Put your strongest arguments out early before the OR official starts zoning out or before s/he forms an overall opinion of the member’s defense based on your weaker arguments.
4. GOOD ADVICE.  Try real hard to avoid admitting for the OR record that any management alleged fact or characterization of the employee’s behavior is correct.  You never know what will turn up upon further investigation, legal research or even new case law. But do not refuse to the point of appearing to be absurd. For example, rather than admitting the member said something the agency alleges s/he did, say “Assuming solely for purposes of discussion that the agency’s statement of what the employee said is true, …”
5. GOOD ADVICE.  The more facts that you can point out that were omitted from the agency’s investigation to date, the more it should rock the agency’s confidence in its proposed action. Moreover, just handing a document to the OR official and assuming that s/he will read it, focus on the key portions, and understand its relevance is a pipe dream.  If you put a document, even a MSPB decision, into the OR record, highlight the key passage, read that passage into the record, and then talk about the relevance of it.
6. GOOD ADVICE.  Numbering them boosts the chances the agency will consider them individually when making the final decision.  It also reduces the chances the agency will deny the union ever gave it that document.
7. POOR ADVICE.  Submitting the file as something the union and member want the agency to consider, suggests that the union accepts everything in there as true.  Remember what we said in #4 above about avoiding a situation where you officially admit that some fact or characterization is correct. You want to leave the union as much flexibility as possible once further research and investigations are finished to make whatever case it wants before the arbitrator or MSPB.
8. GOOD ADVICE.  Once again, don’t assume the OR official or HR rep will go hunt down some document you consider important. Put it in the record, highlight the key portion, and comment on its relevance.
9. GOOD ADVICE.  While we are not suggesting you try to stretch a reply over several days or seasons, don’t be shy about taking all the time you need and officially protesting via e-mail or some other indisputable record if the time is denied. This alone can get an agency action overturned.
10. POOR ADVICE.  If you have an objection to the proposed action that is valid, no matter how small, it is generally best to include it.  Moreover, if the OR official asks at the end if the union has raised all its objections, don’t admit to that.  Say something like, “The union retains the right to raise other objections as it further investigates the allegations, researches the case precedent, and consults with counsels.”
11. POOR ADVICE.  The accused employee has a substantial potential to undermine the union’s defense if for no other reason that s/he is untrained in defending an accused employee and arbitration precedents. Additionally, some feel that the managers are their friends and will act reasonably if they just admit something and beg for mercy. On the other hand, some will blurt out threats.  So, try to avoid this and when you must let the employee speak, rehearse in advance and school the employee in the hazards of going off script.
12. POOR ADVICE.  The agency investigation is supposed to be over. The meeting is supposed to be solely devoted to the employee’s reply. While you do not want to offend the OR official by rudely blocking his/her questions, offer the official the opportunity to send you questions to which you will reply.  Additionally, you never know what an employee will say when questioned. If there is no way to avoid a question, think about asking for a brief recess to go somewhere private to hear and practice the employee’s response before making it.
13. GOOD ADVICE. If you do not protest the denial of requested information you are entitled to under the law or regulations, you might have a hard time later claiming that the denial was a harmful error requiring reversal of the agency’s action.
14. GOOD ADVICE. This is another place where you want to finesse your response with something like, “Although we still contend that the employee did not do what the agency alleges, we ask solely for purposes of argument that should the agency disagree with the union on that point that it still consider reducing the proposed penalty because….”
15. POOR ADVICE.  There is no reason in general to omit defenses based on statutes and regulations not directly related to discipline.  Moreover, some agencies have had success arguing that unless the EEO argument is raised in the oral reply it cannot be appealed after the decision is made.  We do not agree with that, but better safe than sorry.