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