Discipline and Discharge

1. Discipline and Discharge • Just Cause • Synonyms • “Cause” • “Proper Cause” • “Good Cause” • Implied unless evidence indicates parties did not want it in the agreement • Contractual • In the absence of a contract, employment is “at will”

2. Reasons Constituting Just Cause • Employee Ability and Performance • Employee Conduct • Business Necessity

3. Employee Ability and Performance • Employer must supply necessary conditions to do the work • Tools • Training • Time • Safe Workplace • Raw Materials • Employee has responsibilities • No-Fault Discipline • Employee unable to work due to medical reasons

4. Employee Conduct • Fairness • Employee must know conduct is unacceptable • Employer must • Announce rules • Reasonable – related to operation of business • Announce Penalties • Egregious or violates societal norms • Theft • Fighting • Insubordination • Obey First, Grieve later, with exceptions • Off-duty conduct with a relationship to job

5. Elements of Just Cause • Three Basic Questions • Did the grievant engage in the misconduct of which he/she was accused? • If so, was the grievant provided with due process? • If so, did the Employer take into account any mitigating circumtances?

6. Did the grievant engage in the misconduct of which he/she was accused? • Burden of proof on the employer • Has the employer shown, by whatever evidentiary standard the arbitrator chooses to employ, that the grievant “did it.” • Preponderance of the evidence (51%) • Clear and convincing evidence (app. 65%) • Beyond a reasonable doubt (75%-80%)

7. Did the grievant engage in the misconduct of which he/she was accused (cont.)? • Objective evidence • Employee records • Attendance • Drug Test results • Purity of sample • Chain of custody • Reliability of testing organization • Production Records

8. Did the grievant engage in the misconduct of which he/she was accused (cont.)? • Non-Objective Evidence • Eyewitnesses • What did they see? • Are they biased? • Were they involved? • Observance of the Scene • May be clear what happened, but not why it happened • Damaged equipment • Employee altercation • Time between event and observance • Other possible explanations • Consistency of grievant’s explanation with evidence

9. Was the Grievant Afforded Due Process? • Elements of Due Process • Reasonableness of Rule/Related to Business • Awareness of consequences of actions • Awareness of Rules • Awareness of Potential Penalties • Full, Fair, and Unbiased Management Investigation • Reasonably specific charges with a link to rules • Timeliness in relation to offense • Union Representation if Requested • Consistent Enforcement of Rules • By Management • Among Employees – Disparate Treatment • Employee Privacy – reasonable cause • Progressive Discipline for Most Offenses

10. Mitigating Circumstances • Employee Length of Service • Employee Work Record Including Discipline • Subject to Any Contractual Provisions • Management/Supervisor Error or Fault • Employee Illness or Medical Condition • Employee attempts to address problem • Employee Apology or Contrition (likelihood of incident being repeated)

11. Issues in Discharge Cases • Off-Duty Misconduct • Must be link to the job • Sexual or Racial Harassment • Use of EEOC guidelines if no contractual definition • Repeated actions • “Last Chance” Agreement • “Obey First, Grieve Later” • General Obligation on Employee • Exceptions • Health and safety concerns • Nonrecurring event

12. Broad Authority of Arbitrator • Unless collective agreement limits authority of arbitrator, may • Deny Grievance in Full • Sustain/Grant Grievance in Part and Deny in Part • Reinstate without back pay • Evidence established grievant engaged in misconduct but there was a due process violation and/or mitigating circumstances • May be conditions on reinstatement • Example: Negative Drug/Alcohol Test and continue to be drug/alcohol free on job • Reinstate with partial back pay/reduction of penalty • Evidence established grievant engaged in misconduct but discharge not warranted • Mitigating circumstances • Disparate Treatment with respect to the penalty • Sustain/Grant Grievance in Full • Evidence did not establish grievant engaged in misconduct • Anything Else That is Appropriate to the Case