Some of the information here was sourced from "The Common Law of Our Workplace" and personal info from class notes and past experiences concerning the common laws of workplaces. Other sources will be cited within the blog.
Ever been fearful of disciplinary action in the workplace? Did you know . . . ?
Notice of Consequences!
An employee is entitled to be informed of or to have a sound basis for understanding the disciplinary consequences that will result from violating policies or work rules in effect at the employee's place of employment.
Comment
1) This reasoning is similar to one's right to notice and the opportunity to be heard before discipline is imposed for a specific offense.
2) Many/most arbitrators believe that employees are entitled to know what is expected of them in the workplace, and conversely, to know what action will befall them in the event they violate an employment policy or work rule.
3) Employee awareness often comes from collective bargaining contract provisions and from published or posted work rules and procedures. Some offenses are sufficiently serious, however, that as a matter of common sense and common understanding employees will be held to know the consequences of committing them, such as assault, especially with a weapon, theft, etc.
4) Another important application of the proportions is that, in the administration of disciplinary action by an employer, employees should not have to suffer disparate treatment, that is, there should be equal treatment for like offenses.
Is Unchallenged Past Discipline relevant in assessing future discipline??
Unchallenged prior misconduct is generally relevant and may be entered as part of the grievant's past record. Even without requiring or allowing independent evidence of aggravation or mitigation concerning it.
Additional Comments
1) Most arbitrators hold with the thoughts that: discipline that could have been challenged at the time it was imposed and was not, is a matter of record as it exists in the grievnat's disciplinary file, and any further evidence concerning it is irrelevant. WHY? The reasoning is twofold; a) draw attention to the finality of the ungrieved discipline; b) to avoid contested evidence on matters that are already final.
2) Evidence acquired after the discipline has taken place may not be considered admissible for grounds to issue new discipline. Although it may be utilized to support the original charges.
3) Knowing many plants/work sites, practices of "REFUSING TO SIGN" DISCIPLINARY NOTICES the above infor might cause a bit of rethinking on that issue. The signing for acceptance of a disciplinary notice is NOT an admission of guilt. But a stack of refused to sign notices in a worker's file that were SLIPPED in there be some untrustworthy fat cat that wanted to rush your trip to the street, would be hard to disprove at your discharge hearing that they were not legitimate.
CAN/DO ARBITRATORS examine witnesses?
The short answer to both questions is YES!
The degree to which arbitrators will examine witnesses varies greatly among the current arbitrators.
Additional comments
1) Depending on the personal makeup of the arbitrator and the circumstances of the case at hand, the arbitrator's involvement in the examination of witnesses will range from highly active to very passive.
2) The danger of being passive is that the case is likely to run away from the passive arbitrator. The parties will then go fishing in blind alleys in an attempt to prove their positions.
3) The highly active arbitrator runs the risk of taking the case away from the parties, appearing to the parties, individually or combined, to become council for their adversary.
4) Arbitrators have an obligation to reach a decision that gets as close to the truth as possible. Many will search for that truth through a variety of methods. This usually does not include arbitrators calling witnesses or asking for the production of documents.
Therefore, the most popular method to find the truth is to question the witness after the council had finished.
Below are a few common questions that come about often on the shop floor or work site, along with the answers.
DUTY OF FAIR REPRESENTATION (DFR)
Question: The union rep's withdrew my grievance nine months ago. Can I file an NLRB charge of failure to exercise the charge their duty to fairly represent (DFR) against the union?
Answer: No. The statue of limitations on DFR charges (and lawsuits) is six months. HOWEVER that time only begins the day the employee was notified that the union dropped the grievance. A good cause for both the union and member to maintain proof as to the date the grievant received notification the grievance was dropped. (See: DelCostello v Teamster, 462 U.S. 151, 113 LMMR 2737 [U.S. Sup. Ct. 1983])
Question: The union lost an arbitration case of a discharged worker. The worker wants the union to appeal the arbitrator's decision to federal court. The union believes this would be fruitless, but the worker is threatening to sue the union. Does the union have to file a court appeal of the arbitrator's decision?
Answer: Union grievance processing duties extend only to the contract procedures. The union is not required to file a court appeal when it loses an arbitration case.
Question: The union is grieving a four-hour overtime violation. The grievant wants the union to go to arbitration, but this will likely cost the union thousands of dollars in expenses. It seems foolish to spend so much for four hours pay, especially when the union has limited funds. Does the union have to arbitrate?
Answer: No. Unions are allowed to consider the costs of arbitration. A union with a small treasury may not be able to arbitrate a case that a larger union could take on. The NLRA is not violated when the union, acting in good faith, declines to arbitrate for legitimate financial reasons. NOTE: Cost considerations carry less weight as the importance of the grievance increases. Discharge cases are the most important. Unless the case is hopeless, a union will be hard pressed to justify a decision not to arbitrate a discharge solely because of the expense.
Question: The union's executive board voted not to take an employee's grievance to arbitration because they were afraid of losing the case and setting a precedent that will hurt other employees. The employee says he/she is willing to pay the arbitration fees herself and hire his/her own attorney. Under these circumstances can the union refuse to take the case up?
Answer: Yes. The decision to arbitrate is the union's and the union's alone. Individuals cannot compel arbitration by offering to pay for it.
A TYPE OF ARBITRATION RARELY UTILIZED
(Info from the common law of the workplace and the school of hard knocks!)
A bench decision is a decision the arbitrator issues on his/her own motion, or, at the request of either party. The arbitrator may give a bench decision if he/she feels any of the parties' best interest will be served. NOTE: Unless the parties' contract/agreement restricts a bench decision it is at the sole discretion of the arbitrator to issue such award.
A bench decision is also issued more quickly than the normal arbitration process follows. Normally it is issued the day of the hearing or the next day by phone, fax or mail. Many time the arbitrator will warn the parties of his/her intent to issue a bench decision. He/she may even advise the party who has a weak case that it would be in their best interest to call for a recess and resolve the issue before he/she does.
This process is sometimes used to take the grievant from a world of the uncertainty of being discharged, and, stop the further liability of the company.
Again, this decision process is rarely utilized. I have never issued a bench decision as an FMCS arbitrator, nor have I ever had one issued as an advocate in the 230 or so arbitration cases I have pitched (heard). I understand my home Local UAW 933 has received one such decision in its history.
CAN I REQUEST A SPECIFIED UNION REP??
Can a member select a particular representative to represent them instead of their regular rep?
Yes, if the two representatives are equally available, an employee's request for a particular representative must be honored. Reference: Consolidated Coal Co., 307 NLRB 976, 140 LRRM 1248 (1992) NOTE: Most UAW contracts fail to provide for such rights or they restrict us from using such rights. HOWEVER: The parties cannot enforce agreements that violate applicable law; the MUST change them to comply with the law, without a requirement to ratify them.
LAST CHANCE AGREEMENTS
In some instances the parties may settle a disciplinary grievance with a "last chance" agreement. These agreements vary in terms but usually grant the employer discretion to discharge the employee for any subsequent offense (sometimes for a subsequent similar offense) and commonly state or imply that the usual procedural protections will not apply, such as just cause, etc.
One of the most common occasions for last-chance agreements is the reinstatement of an employee discharged for problems related to substance abuse.
Depending on the language of the "last chance," the agreement may definitively resolve the question of whether a given offense provides a legitimate basis for discharge. Such an agreement may bar an arbitrator from imposing a further requirement of proportionality or progressivity, but it normally would not bar inquiry into the question of whether the employee committed the final offense charged by the employer.
Relationship to the "Just Cause" Requirement. Depending on the wording the agreement may or may not replace the just cause requirement. Because the just cause requirement is so fundamental, an arbitrator should not, without express language, presume the parties intended to abandon it. If the agreement does replace the just cause requirement, the arbitrator's authority may be limited to interpreting the last chance agreement itself and determining whether the employee actually violated that agreement.
Necessary Parties: In a unionized workplace no employee may enter into an agreement that conflicts with the collective bargaining agreement. The union, however, is generally free to modify the collective agreement, even in the context of a last chance agreement affecting a single employee. If the last shance agreement conflicts with the collective agreement, the union must be a party to it before it will be binding.
Illustration
The grievant signed a last chance agreement when her employer threatened to discharge her for repeated tardiness. The agreement provided that the company could discharge her for any further tardiness within the next year and that the company's decision was "not subject to the arbitration procedure." She neither sought nor was offered the union's advice when she signed the agreement. Six months later she was 15 minutes late to work after a collision between a car and a truck blocked the road to the plant. The company fired her. The union filed a grievance on her behalf, claiming that the discharge violated the collective bargaining agreement's just cause provision. The company claimed the grievance was not arbitrable because of the last chance agreement. The grievance is arbitrable. No agreement between an individual employee and the employer can amend the collective bargaining agreement.
Duration: A well-drafted last chance agreement will specify an expiration date, after which the employee will be subject to the same disciplinary rules and procedures applicable to other employees. If no duration is stated, an arbitrator should find that the parties intended it to last a "reasonable" time, depending on the nature of the offense, the parties' practices, and other relevant factors.
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