Discipline and Discharge Just Cause Synonyms Cause Proper

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”

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

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

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

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?

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%)

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

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

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

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)

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

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