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Get Your Story Straight

Change can be good, like the seasons of the year, a new fall television lineup--even, sometimes, your teenager's taste in music. But there are places where change can bring problems to all concerned, and one kind of change, in particular, can be a real headache for stewards: when a member's story changes in the middle of a grievance battle.

You've probably been there: a worker is disciplined for, say, being late to the job. She insists she was on time, declaring that "five people saw me walk through the door a t 8 a.m. sharp!"

But when you ask for the names of the five so you can build your case, the grievant may not be able to come up with them. Or, maybe a couple do remember for sure seeing the grievant come in on time...but when you file the grievance, and management asks the workers about the incident, they "think" they saw the grievant arrive on time but no, they "can't swear 100 percent."

Many a grievance, many an arbitration, has bee lost because grievants or witnesses changed their stories. Here are a couple of recent cases where changing stories got people into hot water. They do a pretty good job of pointing out the need to do solid preparation of your people before they tell their tales.

When the story is repeated, there should be no contradictions with what the grievant has said on previous occasions.

The Cursing Inspector

Mike, a state plumbing inspector, was discharged after an argument with a contractor on a construction site. The discharge pleased the boss to no end: he'd wanted to get rid of Mike because he was a whistleblower.

So when the contractor complained about the argument, the employer jumped at the opportunity to take revenge. He accused Mike of cursing at the contractor. That's not an unusual practice on a construction site, so the employer made the charge more serious by accusing Mike as well of belittling the contractor, acting inappropriately, and then lying during the investigation.

In the days that followed the argument Mike had many occasions to describe what had happened on the site.

The problem was, every opportunity he had to describe what happened, his story changed a bit. The employer jumped on these inconsistencies to try to prove its charge that Mike had lied in the investigation.

Every lawyer tries to use inconsistent statements to attack a witness' credibility. If grievants lack credibility, they stand little chance of winning their arbitrations.

Fortunately for Mike, the arbitrator found that the employer did not prove Mike engaged in unacceptable behavior on the construction site that day, nor had the employer proved he lied about the incident. Speaking to Mike's changing stories, she stated that a "charge of dishonesty is very serious [but] requires proof of a conscious desire to deceive...Matters that do not constitute dishonesty include differences of opinion, estimates, misunderstandings, and lapses of memory." She accepted the union's argument that the witnesses may have differing accounts because they were not paying attention to details that seemed unimportant at the time. Mike did not change his story so much that he was no longer believed. She ordered him reinstated with full back pay.

The Lost Day

In another case, the grievant wasn't so lucky. Chuck was an employee who worked in the field. One day an all-day hearing was canceled and he marked eight hours of work on this time sheet. When questioned by his supervisor, he refused to take sick leave and had trouble accounting for his hours. When asked why he didn't work on writing up orders of past hearings, he said, "I didn't feel like it." He claimed that he drove, checked into his hotel and read paperwork for five hours.

In a written memo, he offered yet another excuse, he was sick: And then, at the arbitration hearing, came up with yet more explanations. He claimed that the short drive that day took longer because of bad road condition. He also complained--for the first time--of allergies.

The arbitrator's decision? "The Grievant's story has grown and changed over time...the changes in the Grievant's story, all of which buttress his position, seem surreal." Chuck's suspension was upheld.

Appearance Counts

More often than not, grievants are not lying. They are simply remembering new details, or trying to tell their story better than they told it the first time. But sometimes the truth isn't good enough, if the end result is the appearance of lying and the loss of credibility.

Help grievants maintain their credibility:

Sit down with the grievant before the employer's investigation and go over what happened. Try to get the grievant to remember as many details as possible form the beginning.
Take complete notes in the Weingarten interview and in any other interviews where you are present.
Stress to the grievant that when the story is repeated, there should be no contradictions with what the grievant has said on previous occasions.
Immediately before each retelling of the story is called for, warn the grievant that embellishing or exaggerating can be damaging later.
Go over all prior statements with the grievant before the grievant repeats the story.

--Joel Rosenblit. The writer is a staff attorney for Oregon Public Employees Union, SEIU Local 503.

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