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