Should I rebut a rebuttal or allow the employee to have the last word?

This is a very common question among line managers. In general, we all have a need to justify our opinions. If we write that a staff member displays disrespectful conduct toward clients, commits excessive errors when performing routine tasks, or takes too many sick days off, our perceptions shouldn't be challenged, right? Well, there are two sides to every story. It s not uncommon for employees to attempt to re-create your version of history by providing their own version of events that led up to the written warning or substandard annual review.

So, should managers generally respond in writing to employee rebuttals? The short answer is No. Unless new information surfaces from the employee s rebuttal, there is little need to justify your statements by chasing paper. Simply stated, you don t want to keep going back and forth on paper as to who s right and who s wrong. The original document stands; the employee writes a rebuttal. Then both documents are placed into the employee's personnel file. Period.

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In general, allowing employees to write rebuttals is a healthy employment practice. First, it creates a more even playing field. Both sides have the opportunity to create a written record that they feel more accurately reflects events, and that type of communication should always be encouraged. Second, an employee rebuttal may surface new information that you didn't know about. If it does, you ll have the discretion to rewrite or destroy the warning you gave the employee originally. Third, if an employee is invited to write a rebuttal but fails to, it may be harder for the individual to challenge that warning some time in the future while sitting in front of a judge or arbitrator.

Here's how to avoid the problem from the outset: Before you meet with an employee to give her a written warning, discuss your intentions and your concerns. Tell your subordinate, ''Anne, I'm conducting this meeting because it appears to me that a written warning will be necessary. Before I sit down to write it, I want to learn your side of the story. There may be extenuating circumstances that I'm not aware of.''

Assuming that there aren't extenuating circumstances to change your course of action, write the warning after your meeting with the employee. By doing so, you'll show that you're a fair arbiter of workplace disputes. You'll demonstrate that you listen to both sides of a story before reaching a conclusion. Also, you'll have the opportunity to share the message that a written warning is in the works, thereby alleviating the stress that comes when these kinds of workplace documents are suddenly brought to someone's attention as ''signed, sealed, and delivered.''

One more thing: As much as possible, include the employee's side of the story in your disciplinary narrative. Construct statements like this: ''When I asked you why... you said. Such statements show on paper that you ve listened to the employee s side before resorting to discipline. That s the best management practice of all.

Can a union employee demand that a steward be present at a progressive disciplinary meeting with management?

Yes. The Supreme Court ruled in the 1975 case National Labor Relations Board v. Weingarten, Inc. that employees in a unionized organization have the right to union representation during an investigation interview if the employee reasonably believes that the meeting may result in disciplinary action. Although you re not required by law to tell unionized employees that they have the right to the presence of a union representative, you may still wish to do so. If that is the case, you should tell your subordinate that the meeting may result in discipline and that she has the right to have a union steward present.

If a union steward isn't available at the time you re planning on having the meeting, you should reschedule. You might even send the employee home with pay pending the meeting if the employee s actions were egregious. Forcing a meeting when a steward is unavailable may only give the union a separate cause of action against you.

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That being said, it may be a wise management practice to inform unionized employees about their Weingarten rights even if they don t voluntarily request a steward s presence. First, it s a fair and open way to manage your employees. Second, understand that managers often have fairly defined views of unions: They either feel that management should cooperate with unions in the employees best interests or believe that management s responsibility is to minimize the union's influence over the organization.

As a result, corporate cultures may develop that are either cooperative or hostile vis-à-vis union intervention. The pros and cons of union involvement in companies management practices go far beyond the scope and purpose of this book. Regardless of your feelings, it s important to recognize that failing to recognize Weingarten rights or relying on formalities may only aggravate the situation.

Therefore, in this author s opinion, reminding an employee of her right to have a steward present at a disciplinary meeting, even if she doesn't ask, demonstrates to your workers and to the union that you re fair and objective in your management practices. That s an important perception to preserve regardless of your feelings regarding union activities. In addition, such open communication in the workplace may minimize employees needs for union membership in the first place.

Can a nonunion employee demand that a coworker be present at a progressive disciplinary meeting with management?

Possibly. The Weingarten case in 1975 confirmed that unionized employees have the right to act in concert for their mutual aid and protection as set forth in section 7 of the National Labor Relations Act (NLRA) and to ensure evenhanded treatment of employees. At that time, the National Labor Relations Board (NLRB) didn't expand the Weingarten interpretation to include nonunion employees.

However, on July 10,2000, that changed. The NLRB abandoned its long-standing limitation on Weingarten rights and extended those rights to nonunion employees in Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92. In that case, the NLRB overruled its prior decisions and extended the Weingarten benefits to union and nonunion employees alike.

In short, employees, even in nonunion jobs, have the right to request the presence of a coworker at an investigatory interview that the employee reasonably believes could result in disciplinary action.

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There appear to be limitations on employees rights in this new interpretation. First, nonunion employees must request the presence of a coworker representative. Your company doesn't have any obligation to provide a representative if one hasn't been requested. Second, the employee has the right only to the presence of a coworker—not a union steward or attorney. Requests for attorney participation in internal company matters should especially be denied.

In addition, I believe it is not in your company s best interests to voluntarily share with employees that they have the right to co-worker participation. Whereas Weingarten rights have been around for union employees for twenty-five years, this new interpretation for nonunion employees is untested.

In addition, coworkers in general—unlike union stewards, who are trained in basic employee relation principles and practices—may not understand the fundamental rules of management intervention. As a result, unqualified ''coworker'' involvement may create problems in sensitive investigations. By expanding the ''need to know circle, the coworker s presence creates a greater chance of loss of confidentiality or breach of privacy.

This new interpretation of Weingarten constitutes a substantial change in the law and imposes additional duties on nonunion employers. The case is on further appeal as of this writing, so it s best to check with qualified legal counsel whenever a nonunion employee requests the presence of a coworker at an investigatory meeting that could result in discipline.

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