Get ahold of your Union Representative if you have a contractual question that cannot be answered here. Contact information is at the bottom of this page.
I've just started working for the State of Hawaii. I work a shift that my days off are on the weekdays. When do I receive my holidays off if the holiday falls on my day off?
Section 35.02 (a) Observance of Holidays of the Unit 1 and 10 contracts provides that employees whose workdays fall on Monday through Friday during the workweek in which a holiday occurs shall observe such holiday as follows:
|Day Holiday Falls||Day Holiday Observed|
following Holiday Workday
Section35.02 (b) of the contract provides that employees whose workdays fall on other than Monday through Friday during the workweek in which a holiday occurs shall observe such holiday as provided below:
|Day Holiday Falls||Day Holiday Observed|
|First workday after the day off
I'm a government worker with the Department of Transportation. My wife works for a small elderly care home and doesn't get overtime pay for working on holidays and over 8 hours a day. Isn't it her right for overtime pay and her boss is breaking the law?
It appears that your wife works for a non-union company. There are no laws that force the Employer to pay overtime for working on holidays or beyond 8 hours, unless a person works more than 40 hours a week.
Many of us take for granted the contract benefits that are negotiated by UPW. Payraises, vacation pay, shift differential pay, meal and rest periods are a few examples of benefits that could be taken away by management without a union contract. The UPW contract guarantees you the right to these and other negotiated benefits.
As a Union Steward, am I allowed to attend grievance meetings or investigate complaints during work time?
Yes, you are allowed work time to attend grievance meetings or investigate complaints. Section 5.02 of the Unit 1 and 10 contracts states, in part:
“In addition to his primary responsibilities as an employee, Union stewards are recognized as participants in maintaining meaningful employee-employer working relations; therefore, such stewards shall be permitted time off with pay during working hours to investigate complaints and resolve grievances that have arisen, and ascertain whether or not the Agreement is being observed within their respective work area or coverage as a steward, and attend meetings between the Employer and the Union to discuss and/or resolve such complaints or grievances. In the event the Employer is unable to arrange a meeting to discuss and or resolve complaints or grievances at the steward’s respective work area, the Employer shall endeavor to provide the steward with transportation to and from the meeting.”
Section 11.01 a. of the Unit 1 and Unit 10 contracts state, "A regular Employee shall be subject to discipline by the Employer for just and proper cause." Private Sector Union contracts state, "Employees shall be subject to discipline and discharge by the Employer for just cause." What is "just and proper cause"?
Although there is no definition in the contract of “just and proper cause”, there is a “common law” set of guidelines from the thousands of arbitration cases on disciplinary actions.
The most used guidelines are in the form of a seven part test of questions provided by Arbitrator Carroll Daugherty. A “No” answer to any one or more of Arbitrator Daugherty’s seven questions means that just cause did not exist.
In other words there must be a “Yes” for the following seven part test of questions for “just cause” to discipline or discharge an employee:
1. Did the company give to the employee forewarning or foreknowledge of the possible disciplinary consequences of the employee’s conduct?
- The forewarning or foreknowledge may be given orally or in writing through House Rules, Code of Conduct, etc.
- There are certain exceptions that forewarning or foreknowledge may not have to be communicated to the employee. This is because certain offenses, such as insubordination, coming to work intoxicated, drinking intoxicating beverages on the job, theft, fighting, or threatening co-workers are so serious that any employee may properly be expected to know already that such conduct is offensive and heavily punishable.
2. Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?
- Regardless if an employee believes that the rule or order is unreasonable, the employee must nevertheless obey the rule or order. A grievance may be filed after. The only exception from following the order and grieve later is when the order is unsafe or unlawful.
3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
- An employee has the right to know with reasonable precision the offense with which he is being charged and to defend his behavior.
- The Employer should conduct an investigation of the employee’s offense before discipline is taken against the employee. Unless the employee’s presence may interfere with the investigation the Employer may place the employee on leave pending investigation.
- The Employer has the responsibility to investigate into the possible justification of the employee’s action.
4. Was the company’s investigation conducted fairly and objectively?
- The Employer’s investigator may be both “prosecutor” and “judge”, but should not be a witness against the employee.
5. At the investigation did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?
- It is not required that the evidence be conclusive or “beyond all reasonable doubt.”
- The Employer’s “judge” should actively search out witnesses and evidence, not just passively take what participants or volunteer witnesses testify.
6. Has the company applied its rules, orders and penalties even-handedly and without discrimination to all employees?
- A “No” answer to this question requires a finding of discrimination and warrants negation or modification of the discipline imposed.
- If the Employer has been lax in enforcing its rules and orders and decides henceforth to apply them rigorously, the Employer may avoid a finding of discrimination by telling all employees beforehand of its intent to enforce hereafter all rules as written.
7. Was the degree of discipline administered by a company in a particular case reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee in his service with the company?
- A trivial proven offense does not merit harsh discipline unless the employee has properly been found guilty of the same or other offenses a number of times in the past.
- An employee’s record of previous offenses may never be used to discover whether the employee was guilty of the immediate or latest offense.
- The proper use of an employee’s record is to help determine the severity of the discipline once the employee is properly found guilty of the immediate offense.
- Given the same proven offense for two or more employees, their records provide the only proper basis for “discriminating” among them in the administration of the discipline for the same offense.
- Arbitration decisions have repeatedly ruled in discharge cases that leniency is the prerogative of the Employer. Arbitrators should not substitute their judgement in leniency unless there is compelling evidence that the Employer abused its discretion.
- The fact that an employee was discharged for a serious first offense does not in itself warrant a finding that the Employer was unreasonable. This is the rule, even though an arbitrator might have imposed a lesser discipline than a discharge.
Discipline should not just be accepted by an employee. UPW members should question the Employer.
Section 15. Grievance Procedure requires that a Step-1 grievance be filed within eighteen (18) calendar days after the occurrence of the alleged violation.
UPW Private Sector contracts vary in the amount of days required to file a Step-1 grievance. However, suspension and discharges are usually required to be filed in seven (7) calendar days in private sector contracts.
Unless there is an agreement with the Employer and Union to extend the deadline to file a grievance, arbitrators have held that there is no grievance upon missing the deadline to file a grievance in accordance with the grievance procedure in the contract.
I have never reviewed my personnel file. What do I have to do to see my personnel file and what are my contractual rights?
Section 17. Official Personnel File of the Unit 1 and Unit 10 Agreements provides your contractual rights relating to your personnel file.
First of all, you should review your personnel file on a regular basis. Section 17.01 a. of the Agreements states, “The Employee and/or the Union shall by appointment, be permitted to examine the Employee’s personnel file. Further, Section 17.01 b. states, ” The Employee and or the Union shall, upon request, be given a copy of material in the file.”
Secondly, it is important to check your personnel file if it contains any derogatory material you are not aware of. Section 17.02 a. of the agreements states, “No material derogatory to an Employee shall be placed in the Employee’s personnel file unless a copy is provided to the Employee.” Section 17.02 b. states, “The Employee shall be given an opportunity to submit explanatory remarks to be included in the file.”
Lastly, Section 17.03 of the Unit 1 and 10 Agreements states, in part, “An Employee and/or the Union may request that any derogatory material not relevant to the Employee’s employment be destroyed after two (2) years.”
Again, it is important to review your personnel file, check for derogatory material, and request the removal of 2 years old derogatory material.
Recently, my stepsister passed away on the mainland. Am I entitled to any type of leave so that I may attend her funeral?
Yes, Section 41 of the Unit 1 and Unit 10 agreement provides that you be allowed three (3) working days as funeral leave with pay which shall not be deducted from any other leave. This funeral leave shall be granted on any day which you designate provided that it falls within a reasonable period after the death of your immediate family member, which in this instance is your step sister.
Immediate family is defined as parents, brothers, sisters, spouse, children, parents-in-law, grandparents, grandchildren or an individual who has become an immediate family through the Hawaiian “Hanai” custom or step relationship.
Additionally, if the death or funeral occurs outside the State of Hawaii, you are entitled upon request, a reasonable amount of additional days of accumulated vacation leave or leave without pay.
I'm a full-time School Custodian working for the Department of Education. Often after working my regular shift from 9:00 am to 6:00 pm, I continue to work on authorized overtime until 9:30 pm because many outside organizations use our school facilities. Besides my overtime pay, am I entitled to receive any other benefits?
Yes. According to Section 18.01 c. of the unit 1 contract, you are entitled to a 10 minute break after each 2 hours of overtime work performed. Additionally, Section 34.01 a.1. provides that you be given a meal allowance upon completion of 2 hours of overtime work and every 5 hours thereafter. Meal allowances differ for breakfast, lunch and dinner. Moreover, Section 32.03 provides a night differential compensation for overtime work performed between the hours of 6:00 pm and 6:00 am.
I am a government UPW member and I received a disciplinary written warning over two years ago. How long can the Employer keep that written warning in my personnel file?
Section 17. PERSONNEL INFORMATION. of the Unit 1 and Unit 10 agreements provides that an employee may request, by appointment, to examine his/her personnel file and request any derogatory material not relevant to employment be destroyed after two years. You and every UPW member are encouraged to examine your personnel files and request any derogatory material over two years old to be removed and destroyed. Contact your UPW business agent if your request is refused by the Employer and the Union will take appropriate action.
During recent high winds and bad weather, I was called to work overtime on my day off to do some emergency work. Am I entitled to receive mileage reimbursement, as well as my overtime pay?
Regardless of an emergency or not, the mileage reimbursement applies under the following sections of the Unit 1 and 10 Agreements:
Section 57.03 (Unit 10) and Section 59.03 (Unit 1)
Mileage reimbursement to and from home to the work site shall be allowed for all call-out work except in the situation where an employee on off duty status is called back to duty and continues to work into his scheduled workday.
Section 57.04 (Unit 10) and Section 59.04 (Unit 1)
Mileage reimbursement shall be allowed for overtime work on scheduled days off and holidays, except for employees whose normal work hours include a holiday.
I'm a government employee. I have received approval for a 1 year leave of absence without pay from my department. Will my seniority be affected by my authorized leave?
No, your seniority will not be affected during the period of your authorized leave. Section 16.01 e. of the Unit 1 and Unit 10 Agreements states, “Authorized leaves of absence, with or without pay, shall not constitute a break in service and shall be creditable for computing continuous length of creditable service.”
Another member told me that he talked with the "BA of the Day" and was very happy with the response and service. What is the "BA of the Day"?
Your co-worker was referring to an Oahu Division “BA of the Day” that serviced him when his regular business agent (BA) was not in the UPW hall when he came in or telephoned unexpectedly.
The “BA of the Day” program was setup by Oahu Division to improve services to members. One BA is assigned each day to remain in the UPW hall from 7:30 am to 4:30 pm to help members that telephone or walk in when their regular BA is not available. The UPW receptionist makes the referral to “BA of the Day” unless the member prefers discussing the matter with his regular BA.
BAs are assigned various work units or departments to service. The services – field visits, grievance meetings, investigation, etc. – take the BA out of the UPW building much of the time. The “BA of the Day” was established to fill the gap felt by members needing assistance when their regular BA was helping another member.
Just ask for the “BA of the Day” when your regular BA is not available. Membership service is a top priority at UPW!
I've often heard or seen the phrase "to be made whole" during grievance meetings with my UPW Business Agent and Employer. What does it mean?
“TO BE MADE WHOLE” is a phrase which unions include in their remedies for grievances that involve back pay (e.g. disciplinary action or improper denial of overtime or promotions).
The term means that the grievant is treated as though management never took the improper action. In discipline cases, it asks that the grievant be restored to the status he or she had before management took the action. In instances where a promotion or overtime has been denied, it asks that the gievant be treated as though management had taken the correct action.
When “to be made whole” is included in the remedy – and the grievance is upheld – it insures the grievant will receive all back pay that is due. and it also covers such rights and benefits as seniority, vacation and sick leave, pension, and medical coverage.
My boss called me in his office and said that a member of the public sent in a written complaint that my assigned work truck was parked off the road and the worker was sleeping in the truck. What are my contractual rights?
Section 58. BILL OF RIGHTS, of the Unit 1 and Unit 10 contracts states:
No Employee shall be required to sign a statement of complaint filed against the Employee.
|58.02a.||If the Employer pursues an investigation based on a complaint, the Employee shall be advised of the seriousness of the complaint.|
|58.02b.||The Employee will be informed of the complaint, and will be afforded an opportunity to respond and/or refute the complaint.|
|58.03||Before making a final decision, the Employer shall review and consider all available evidence, data, and factors supporting the Employee, whether or not the employee provides factors in defense of the complaint.|
|58.04||In the event the complaint is not substantiated or the Employee is not disciplined, the complaint and all relevant information shall be destroyed, provided that the Employer may retain a summary of such information outside of the official personnel file whenever such complaint may result in future liability to the Employer, including but not limited to, discrimination complaints.|
Am I entitled to clean-up time?
Section 19 Clean Up Time of the Unit 1 and Unit 10 contracts states:
|19.01||All Employees shall be permitted personal clean-up time not to exceed five (5) minutes before meals and ten (10) minutes prior to the end of the workday.|
|19.02||Employees engaged in work assignments which are noxious or involve the use of poisonous chemicals shall be permitted clean-up time of ten (10) minutes before meals.|
|19.03||At the discretion of the Employer, additional clean-up time may be allowed Employees engaged in work assignments which are noxious or involve the use of poisonous chemicals.|
|19.07||Employees shall not leave the work premises during the clean-up period or prior to the end of the workday without permission.|
I was on approved vacation and I got sick. Can I exchange my vacation day that I was ill for sick leave?
Section 37.14 of the Unit 1 and Unit 10 contracts states the following:
37.14 SICK LEAVE DURING VACATION LEAVE.
37.14a. An Employee who is sick one (1) or more consecutive workdays while on vacation leave who submits a licensed physician’s certificate or other satisfactory proof of sickness as deemed necessary by the Employer shall be charged sick leave in lieu of vacation leave.
37.14b. Application for sick leave in lieu of vacation leave shall be made within five (5) workdays after return to work.
I have just been assigned to a temporary workplace. Does the contract provide for travel time?
Section 25.06 of the Unit 1 and 25.07 of the Unit 10 contract states:
25.06a. The work day of an Employee who is assigned to work temporarily at a workplace other than the Employee’s permanent workplace on the same island, shall begin at the time the Employee is required to report at the Employee’s permanent workplace and shall end at the time the Employee returns to the Employee’s permanent workplace or at the end of the work day wichever is later.
25.06b. When an Employee reports directly to the temporary workplace instead of the permanent workplace because the distance between the Employee’s home and the temporary workplace is shorter than the distance form the Employee’s home to the permanent workplace, the Employee shall begin and end the work day at the temporary workplace.
What is the Family Medical Leave Act?
The Family Medical Leave Act (FMLA) is a federal and state law that requires larger Employers to provide employees job-protected unpaid leave due to a serious health condition or to care for a sick immediate family member or to care for a new child.
To qualify for FMLA, a worker must be employed by a business with 50 or more employees within a 75-mile radius of the employee’s worksite, or a public agency. The employee must also have worked for at least 12 months (not necessarily consecutive) and 1,250 hours within the last 12 months. Eligible employees are entitled to 12 weeks of leave in a 12-month period for:
- The birth of a child and to care for the newborn child and to care for the newborn child within on year of birth;
- The adoption or placement of a child in foster care and to care for the newly placed child within on year of placement;
- To care for the employee’s spouse, child, or parent who has a serious health condition;
- A serious health condition that makes the employee unable to perform the essential functions of the employee’s job.
- Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member or “covered active duty;”
- 26 workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee (military caregiver leave).
The FMLA further requires Employers to provide for eligible employees:
- Restoration to the same position upon return to work. If the same position is unavailable, the Employer must provide the employee with a position that is substantially equal in pay, benefits, and responsibility.
- Protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave.
- Protection of the employee to not have their rights under the FMLA interfered with or denied by an Employer.
- Protection of the employee from relation by an Employer for exercising rights under the FMLA.
In addition to the FMLA, Section 38A and Section 38B of the Unit 1 and Unit 10 CBAs, respectively, provides contractual language on family leave.
How many days must a Step-1 grievance be filed from a disciplinary action or violation of the contract?
For the filing of a Step-1 grievance, Section 15.11 of the Unit 1 and Unit 10 contracts states:
|15.11||STEP 1 GRIEVANCE
The grievance shall be filed with the department head or the department head’s designee in writing as follows:
|15.11a.||Within eighteen (18) calendar days after the occurrence of the alleged violation. The term “after the occurrence of the alleged violation” as provided in Section 15.11 a. shall mean:|
|15.11a.1.||Discharge: Eighteen (18) calendar days after the effective date of the discharge.|
|15.11a.2.||Suspension: Eighteen (18) calendar days after the last day of the suspension.|
|15.11a.3.||Other Disciplinary Actions: Eighteen (18) calendar days after the effective date of the discipline.|
|15.11a.4.||Other Alleged Violation(s): Eighteen (18) calendar days after the alleged violation(s) occurred unless the violation(s) are continuing as provided in Section 15.11b.|
|15.11b.||Within eighteen (18) calendar days after the alleged violation first became known to the Employee or the Union if the Employee did not know of the alleged violation if it is a continuing violation.|
|15.11c.||Within eighteen (18) calendar days after the alleged violation is discovered by the grieving party and/or the Union if it is a payroll computational error.|
Section 15. Grievance Procedure provides for additional timetables for Employer’s responses to a grievance and Union step appeals in the grievance procedure. A grievance not filed timely as provided in Section 15 “need not be considered by the Employer.” However, deadlines may be extended by mutual agreement by the Employer and Union.