The right of management to discharge or displace permanent PS&T employees who have completed their probation is specifically governed by Article 33 of the Agreement. These due process rights are listed in the Agreement under the employee's "Bill Of Rights and Article 33." This Article should be carefully reviewed when investigating a disciplinary situation
The following information will concentrate on defining these rights and insuring proper representation to all PS&T unit members faced with discipline. Information will include:
General Information
Field Representatives handle most disciplinary cases through arbitration. In only those cases where termination is sought, PEF will offer an attorney. An employee may choose to be represented by private counsel at his/her own expense.
PEF will pay the ordinary fees of the arbitrator, but will not be responsible for any fees incurred for an arbitrator due to an untimely adjournment by his/her representative (see Attorney Sign-off Agreement).
Although not required, management often signals their intent to discipline an employee when that employee is interrogated. An interrogation is distinguished from the "routine questioning" of an employee by the fact that management has determined that the employee is a likely subject for disciplinary action. If an employee questions if he/she is being interrogated, or questioned, they should clarify the situation from management by asking the following: At this time, am I the likely subject for future disciplinary action?
If management responds in the affirmative, that employee is entitled to the contractual due process protections and should immediately seek representation. Such representation is at the employee's choice not management's.
Current PEF policy allows for a Field Representative to represent employees during an interrogation. Article 33 further provides that an employee be given a reasonable time period to obtain such representation.
Employees should be advised that their failure to respond to questions during an interrogation could lead to additional charges of insubordination.
Questions regarding interrogation should be directed immediately to your Field Representative. Permanent employees must receive a Notice of Discipline (NOD) setting forth the charges and proposed penalty before any disciplinary action can be taken.
This NOD may be served by personal delivery or certified mail to the employee. If the employee does not accept the Certified mailing, the NOD can still be considered to have been served. A disciplinary grievance must be filed within 14 calendar days or the proposed penalty can be imposed. This grievance should be filed certified, return receipt requested to the person designated on the NOD.
Use Immunity
Where an employee is directed to answer questions under the threat of insubordination charges, any statements made in response to those questions cannot be used in a criminal proceeding against that employee. This is called "use immunity" and it flows directly from the Constitutional right against self-incrimination. However, keep in mind that any statement made by the employee during the interrogation can be used in any subsequent disciplinary arbitration hearing.
Procedure
If a member contacts you because they have received a Notice of Discipline (NOD), you should immediately do the following: