Thursday, January 21, 2016

Just Cause Tests in Disciplinary Arbitrations

DISCLAIMER: This guideline is not intended to provide or replace any legal advice and if the reader requires such advice, please contact an attorney.

Union Arbitrations: Just Cause Tests in Discipline/Discharge Cases

Labor Union-employer collective bargaining agreements general have in their contracts provisions requiring the employers to have “just cause or “good cause” before the employers can discipline or discharge an employee. This Post is a brief guideline of the tests and principles relating to just cause based arbitrations. My hope is that it gives unon representatives tools to protect their union members from improper employer disciplinary action. If you such a warrior, I suggest you save this Post in your smartphones, Evernote applications, DropBox accounts or simply printout the guideline for future references.

The Principle of Just Cause and Disciplinary Arbitrations

The hallmark of “just cause” is the essential fairness of the employer’s actions in implementing discipline against an employee. That is what arbitrators look for in deciding discipline and discharge cases. What follows is a series of questions or tests (sometimes referred to as the seven tests) that an arbitrator might look to in order to determine whether the Employer was fair (had just cause) in imposing the discipline in question. If the answer to any of these questions is “no” the arbitrator may find no just cause for the discipline in question.
Keep in mind, the primary focus of the arbitrator is whether the misconduct actually occurred, so the failure of the Employer to be fair alone may not win the arbitration

What is the Level of Burden of Proof on the Employer?

Under the just cause standard, the burden of proof is on the employer to justify its adverse action against the grievant. The amount of proof possibly required:
"beyond reasonable doubt”
“clear and convincing”
“preponderance of the evidence”

There is no clear rule, but the more serious the discipline at issue, the more convincing the employer’s case will need to be in order for the discipline to be sustained.

Was There an Investigation and was it a Fair and Objective Investigation? (Tests One and Two)

In evaluating whether there was just cause for discipline, an arbitrator will look at a number of aspects of the events that led up to discipline being imposed.
Did the Employer do a prompt, fair, objective investigation of the alleged misconduct?
During the investigation, did the employee have access to Union representation and an opportunity to tell his/her story? Fundamental principles of fairness require that an accused have a chance to defend himself—his “day in court” –before being found guilty of misconduct, not after.

Did the Employer Have Enough Proof? (Test Three)

How did the employer make the decision discipline was warranted?
At the investigation, did the Employer obtain substantial evidence or proof that the employee was guilty as charged? The evidence must be substantial and not flimsy. The Employer should actively search out witnesses and evidence, not just passively take what participants or “volunteer” witnesses tell him/her.

Was a Reasonable Rule Involved in the Disciple? (Test Four)

What was the work rule involved? Is it a reasonable one? How sever was the infraction? Was it sufficient to justify the severity of the penalty? Please note abitrators are reluctant to uphold discipline in cases where the work rule at issue is not reasonably related to the safe and efficient operation of the enterprise. If an employee believes a rule or order is unreasonable, he/she must work now, grieve later unless the employee sincerely believes that to obey the rule/order would jeopardize his/her health/safety.

Did the Employer Give Notice of the Rule and Possible Penalty? (Test Five)

Did the employee have notice of the work rule as well as the disciplinary consequences of misconduct?
Generally, employees are entitled not only to adequate notice of the employer’s work rules, but also to notice of the potential disciplinary consequences of their misconduct. Notice can be oral or in writing but there should be actual oral or written communication of the rules/penalties to the employee.

Was the Degree of Discipline Reasonable? (Test Six)

Progressive Discipline
Was the misconduct subject to progressive discipline and, if so, was it applied?
The idea of progressive discipline is to correct or rehabilitate the employee, however arbitrators recognize immediate termination as justifiable for the most sever misconduct: for instance, violence or theft in the workplace. What is employee’s prior disciplinary history? A poor disciplinary record can be seen as evidence that an employee’s misconduct is not amenable to rehabilitation. On the other hand, a good record can support the claim that the grievant deserves a second chance.

Was Any Disparate Treatment Present? (Test Seven)

How has the employer treated other, similar infractions in the past? The general rule is that like cases should be treated alike. Disparate treatment subjects the employer to a charge of discrimination, which can undermine the validity of its just cause argument. Problems frequently arise where an employer decides to tighten up on prior lax enforcement of work rules.

Are There Any Mitigating Circumstances?

Look for motive. Where fights or insubordination, profanity, etc., are involved, check to see if the grievant was provoked, or trying to defend him/herself. Look also to supervisor motive. If you can show that a supervisor has reason to “do in” the grievant, that should be brought out. Long, clean service record may be argued in favor of the proposition that the employee should be returned to work even where he/she is guilty of misconduct. In a disciplinary penalty dispute, the Arbitrator(s) have the authority to award the Employer’s or Union’s position or a penalty somewhere in between. (See JCLRC Clarifications). Therefore, mitigation evidence is key if the Arbitrator(s) will be deciding a disciplinary penalty.

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