The 3020-a Arbitration Newswire: The Just Cause Standard

A very important part of any 3020-a arbitration is Just Cause. In fact, many people say that the 3020-a is a "Just Cause" Hearing.

I agree with that. And I also agree that the DOE may agree to a Just 'Cause Hearing meaning
"we are charging you with misconduct just 'cause we want to"

See my post on one of my other blogs, Inside 3020-a Teachers' Trials:

Arbitration decisions: Are They in Compliance With The JUST CAUSE STANDARD - or is the Penalty Determined Under the JUST 'CAUSE Someone Dislikes You Standard?

If you are working in disciplinary hearings or 3020-a arbitration, or you want to appeal an arbitrator's decision, you should use JUST CAUSE in your argument.

Betsy Combier

betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice

 In a 3020-a arbitration proceeding, the Department of Education has the burden to prove the specifications served on the Respondent. They must prove that there is just cause for a penalty (or none at all),  a fine, a suspension, or termination. The Respondent must prove that there is no Just Cause for any penalty.

Just cause is important to everyone who participates in any proceeding. If someone is accused of some kind of misconduct, and an investigator does a full and fair investigation into whether or not the person did, indeed, do what he/she is accused of, and then, with all the evidence properly gathered, finds no proof that the person did the alleged act, the person goes free, and must receive no penalty.

The DOE investigative agencies, namely OSI, SCI and OEO, dont "investigate" anything or anyone. They find out what the complaint is, then prove the complaint is true after speaking with the principal, Superintendent or "legal" of the DOE, flinging evidence and truth out the window.

The Just Cause Standard:

THE JUST CAUSE STANDARD is incompatible withfavoritism or discrimination. Employers must treat employees who engage in the same type of misconduct alike.

An employer commits “disparate treatment” if, without a justifiable basis, it imposes a markedly harsher penalty on one employee than on another who violated the same or a highly similar policy or rule. Disparate treatment violates just cause whether it stems from favoritism; personal hostility; racial, ethnic, gender, religious, or anti-union bias; inadvertence; sympathy; or mistake. The union does not need to prove the reason (and usually should not attempt to do so). The proper remedy is to reduce the grievant’s sanction to the lowest level imposed on others.

The following cases illustrate disparate treatment:

• A trucking company suspended a driver for thirty days for speeding. A year earlier, it suspended another driver for one day for the same infraction.

• A government agency fired a worker who reported to work under the influence. On previous occasions, it allowed employees to work despite clear signs of inebriation.

• A supervisor saw a worker driving a forklift backwards and charged her with a safety violation. On an earlier occasion, he simply told a worker to turn the lift around. 

MAKING THE CASE

A union seeking to make a disparate treatment defense must identify at least one other employee (called a “comparable”) who violated the same or a very similar rule as the grievant but was given a substantially lesser penalty. It must also show that the comparable’s infraction was as serious as that of the grievant and that the comparable’s record was not appreciably stronger. In most cases, the union will need information from the comparable’s personnel file.

If the union knows the names of workers who received lighter penalties, it should request copies of their personnel files. Otherwise, it should submit the following written information request:

Please furnish the union with a list of each employee and former employee who, within the past five years, was charged with __________. For each such employee please provide a copy of the notice of discipline and a copy of the employee’s personnel file.

Grievance tip: The personnel files of employees who received the same penalty as the grievant can also be a goldmine. For example, the employer may have fired Worker A for a second or third offense while discharging the grievant after a single infraction.

How far back can the union go? No fixed rule limits how far back a union can go to prove disparate treatment. Many arbitrators accept cases as old as five to seven years. Some go back even further. Cases more than ten years old are likely to be rejected, especially if new management has taken charge.

Note: Arbitrators sometimes excuse past leniency if societal views on an offense have hardened. Examples include sexual harassment, safety, drug use, and violence. Penalties imposed before the union negotiated its first contract may also be rejected.

How many needed? A single comparable, especially if recent, can establish disparate treatment. The union does not have to prove a “past practice.” An exception may apply to an attendance case in a large enterprise; because employees can fall through the cracks, an arbitrator may insist on more than one case of unequal treatment.

Grievance tip: Stewards should make entries in their notebooks or on their computers whenever they learn of an employee who openly violates a company policy without being penalized. Such incidents can be invaluable when defending other employees.

Settlements. A comparable employee may have received a lesser penalty due to a grievance settlement or a “last-chance agreement.” Review the agreement. If it states that it is “without prejudice” or is “non-precedential,” an arbitrator is likely to reject it as evidence of disparate treatment.

Supervisors. If comparables cannot be found within the bargaining unit, the union should consider nonunit personnel such as supervisors, office staff, and engineers. When a rule applies to all employees in a facility—a ban on fighting, for example—the equal treatment rule applies. An employer may not impose a substantially harsher penalty on a bargaining unit member than it imposed on a nonmember who committed the same offense.

Note: Under U.S. labor law, a union has a right to examine the personnel file of a supervisor or other non-unit employee if it has a factual basis for believing that the person engaged in similar misconduct as the grievant and if the rule in question applies to all employees.

Grievance tip: Stewards should make dated notebook entries whenever they observe a supervisor violating a rule or policy. 

VALID DISTINCTIONS

An employer can defeat a disparate treatment claim if it has a valid basis for imposing a harsher penalty on the grievant. For instance, in comparison with prior offenders, the grievant may have:

• A more egregious disciplinary record 
• Considerably less service time 
• Committed a more severe or dangerous infraction 
• Acted intentionally 
• Been warned recently for committing a similar violation 
• Fewer mitigating or extenuating circumstances 
• Refused to accept responsibility 
• Threatened witnesses 
• Been uncooperative during the investigation

Example: A worker was fired for smoking in the plant. Although the company only gave written warnings to previous offenders, an arbitrator rejected the union’s claim of disparate treatment because the grievant, unlike the others, smoked in an area where items were flammable.

Not every distinction between employees justifies a harsher penalty. Among the excuses arbitrators often reject are the following: 
• The supervisor who punished the grievant has a more demanding disciplinary philosophy than other supervisors. 
• The grievant is a union steward or officer. 
• The penalty given the comparable was a mistake.

Example: While differences in service time or past discipline can justify differences in penalties, wide disparities, for example, between a warning and a discharge, are frequently regarded as violations of the equal treatment principle. 

QUESTIONS AND ANSWERS

Cross-unit comparison

Q. A worker was fired for taking home scrap. Can we cite a member of another union in the facility who was only suspended for five days for a similar offense?

A. Yes. Employees who are subject to the same or similar rules should be issued the same or similar penalties, regardless of bargaining unit.

One vs. many

Q. Over the past five years, six employees were charged with failing to lock out their machines during repairs. The company fired five but gave one a 30-day suspension. Yesterday, another worker was fired for the offense. Can we argue disparate treatment?

A. Yes. The fact that most offenders were fired is beside the point. The significant fact is that the employer gave special treatment to a similarly-situated employee.

Post-discipline comparable

Q. We filed a grievance for an employee who was fired for refusing an order. A month before arbitration, the company issued a written warning to a worker for a similar transgression. Can we cite the warning as evidence of disparate treatment?

A. Yes. Most arbitrators say disparate treatment can be proven by subsequent events.

Negligence is negligence

Q. Employee M was fired after backing his truck into a loading dock and causing $8,000 in damages. Two years ago, the company suspended employee T for a similar accident with damages of $500. Can we claim disparate treatment?

A. Yes. When negligent acts have the same potential for causing harm, arbitrators often insist that employers apply similar penalties, even if the actual damages are significantly different.

Similar highs

Q. The company fired a worker who tested positive for marijuana. A year ago an employee who came to work drunk was suspended for two weeks. Disparate treatment?

A. Yes. Treating employees who commit drug offenses more harshly than employees who commit alcohol offenses violates the equal treatment principle.

<>Holding steward to higher responsibilities

Q. A steward was suspended for loafing, a heavier penalty than is usually applied for this offense. During the second-step grievance meeting, the general manager said that the penalty was justified because “stewards are supposed to set an example.” Does this give us a case?

A. Yes. Other than illegal strikes and refusals to obey, an employee’s status as a steward does not justify enhanced punishment. 

Failure to investigate others

Q. Company policy requires employees to be drug-tested if they have an accident that causes lost time or a need for medical care. A worker who went home after a fall was tested and fired for cocaine. Can we argue disparate treatment because two other employees and a supervisor who incurred lost-time injuries were not tested?

A. Yes. As one arbitrator explained: “Disparate treatment arises when the grievant has been treated unequally with respect to notice, application of a rule, investigation, proof, or penalty.” Investigating the grievant but not the other employees violates the equal treatment principle.

Reset

Q. After we won an arbitration case by pointing out that employees who violated the company’s “zero-tolerance” fighting policy have not always been fired, the company posted a notice that in the future it would discharge all offenders. Does this preempt future disparate treatment claims?

A. Possibly. Although the logic is not apparent, many arbitrators overlook past favoritism if an employer makes a public announcement that a penalty will be applied in all future cases.

Possible repercussion

Q. If we cite an employee who received a lenient penalty for the same offense, could management increase the penalty to make it consistent?

A. No. As explained in Chapter 3, the double jeopardy rule prevents an employer from increasing a previously assessed penalty.

This is a sample chapter from Just Cause: A Union Guide to Winning Discipline Cases by Robert M. Schwartz. 
You can order Just Cause by downloading an order form or by going to our online store.

“The just cause standard has been seminally defined by Arbitrator Carroll Daugherty, and incorporates the following seven tests:

 

1.  Did the employer give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

2. Was the employer's rule or regulation reasonably related to (a) the orderly, efficient, and safe operation of the Department of Education/school's educational guidelines and (b) the performance that the employer might properly expect of the employee? 

3.  Did the employer, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of the administration? 

4. Was the company’s investigation conducted fairly and objectively? 

5.  Did the investigator obtain substantial evidence or proof that the employee was guilty as charged? 

6.  Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees? 

7.  Was the degree of discipline considered by the employer reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?”  

A look back to Saturday, August 29, 2015:

Mike Mulgrew Finally Admits He, the UFT, and NYSUT Were Wrong To Go Along With Investigators Who Falsely Substantiated Misconduct of UFT Members

 I am disgusted by the "I'm sorry" statements coming from Mike Mulgrew. That is exactly what I see in his turnaround on the horrible, incompetent, and malicious prosecution of UFT members by the NYC DOE investigative agencies - and here I include the Office of Special Investigations, Special Commissioner of Investigation, and the Office of Equal Opportunity, the "Gotcha Squad" .

When Randi Weingarten hired me to be a SWAT Team member for all members held in NYC "rubber rooms" (our nickname; they were called Teacher Re-assignment Centers or TRCs in all my reports) in 2007, I was given access, with Jim Callahan and Ron Isaacs, to all the rooms and all the members who needed advice. Jim and Ron both had other responsibilities, but my work was solely to help members in need. My office was on the 16th floor sandwiched between Gene Rubin, head of the Medical Office for the UFT, and Amy Arundell, head of everything else.

A few doors down were Michele Daniels and Howard Solomon. In fact, the 16th floor had all the grievance reps, so I would call/visit them whenever a member wanted me to, or whenever I had a question. I made sure to memorize the Collective Bargaining Agreement, or UFT contract.

So what?

So, I was told that whatever the NYC DOE charged a member with was true, and the member was guilty as charged. Under no circumstances was I to look into or question any investigation, as this would be tampering with it.

But Randi, then Mike Mulgrew and the UFT crew kept "the talk" alive, that the DOE was 'going after' members and the UFT would protect anyone charged.

They did not mean it, and proved it by setting members up to lose grievances, Appeals, and 3020-a.

Despicable.

Just one last tip - if you are charged with 3020-a for incompetency and/or misconduct of any kind, do NOT resign no matter how hard it is to say no.

That, dear readers, is the bottom line and a call to arms.

Betsy Combier, Editor
President, ADVOCATZ

Union prez urges more transparent process for teacher discipline at NYC schools

Ben Chapman, NY Daily News, August 28, 2015

Randi Weingarten, Mike Mulgrew

LINK
Teachers union president Michael Mulgrew called for an overhaul of the city Education Department’s employee discipline procedures in a highly critical letter sent to agency officials Friday.

In a two-page missive delivered to city schools boss Carmen Fariña and distributed to the press, Mulgrew urged Fariña to create a more fair process for probing and punishing teachers.

Carmen Farina

Proof that the current system needs work, Mulgrew writes, is a report by city investigators released last week that detailed the department’s mishandling of the investigation and suspension of a beloved Manhattan school therapist whose punishment has since been overturned.

“Students should not be deprived of able educators based on shoddy investigative work or personal predispositions, and we should never permit politics and personal agendas to matter more that truth,” Mulgrew wrote to Fariña.

In the letter, Mulgrew called on Fariña to create new, transparent and objective procedures for reviewing the findings of investigations of teachers.

He cited the case of Manhattan Public School 333 therapist Debra Fisher, who got into trouble for sending an email during work hours in October, seeking to raise cash for a needy student.

Fisher, a 10-year veteran of city schools, was suspended without pay for 30 days over the incident, fueling the ire of families across the city.

But on Aug. 18, a report from the city’s Special Commissioner of Investigation found that an Education Department investigator made inaccurate statements and drew the wrong conclusions in his probe of Fisher.

Education officials reversed Fisher’s punishment four days later.

In his letter, the union chief demanded an objective review of previously closed investigations conducted by the investigator who botched the Fisher case.

Mulgrew, who has enjoyed a smooth and relatively cordial relationship with Fariña — compared to his battles with her predecessors — wouldn’t comment on the flap. Neither would union reps.

But Education Department spokeswoman Devora Kaye said the agency’sreorganization of its investigative unit is already underway.

“We hired a new director...to overhaul the division, and every case will now have an attorney reviewing and drafting the final investigative report,” Kaye said.

Fisher, who will return to work with a clean record when the new school year begins in September, agreed that the agency’s investigative process needs a fix.

“I think that changes need to be made,” Fisher said. “This system should not be hurting good people and that’s the bottom line.”

UFT Asserts It May Sue City

Discipline of Teachers in 'Rubber Rooms' Angers Weingarten

By ELIZABETH GREEN, Staff Reporter of the Sun | October 15, 2007

http://www.nysun.com/new-york/uft-asserts-it-may-sue-city/64521/

 On an issue that is testing President Randi Weingarten's public détente with the city, a new group within the United Federation of Teachers is arguing that the union take a tough stance on the treatment of teachers who have been disciplined.

The group, which has dubbed itself the Teacher Reassignment Center SWAT Team, has been compiling pages of documentation on the so-called rubber rooms where teachers accused of charges ranging from incompetence to sexual assault are held as they await a hearing. More than 700 teachers now sit in rubber rooms, where they receive full pay but cannot enter a classroom, a Department of Education spokeswoman, Melody Meyer, said.
Ms. Weingarten said yesterday she hopes the investigation will end with a deal between the union and the city, and not in the courtroom. The result, she said, will hinge on how the Department of Education responds to new guidelines she plans to send in a letter next week. "If we make a proposal and the Board of Education says, ‘No, forget about it,' then we have a problem," Ms. Weingarten said.
She called the issue a "test case" for her new cooperative stance with city officials.
A lawsuit is one route if cooperation fails, the head of the investigative group, Betsy Combier, said.
The centers hold teachers accused of misconduct ranging from criminal charges to incompetent teaching. Tenured teachers cannot simply be fired or pushed to leave their jobs because the UFT contract requires that they first receive a hearing. A panel of arbitrators then decides whether the teacher will be fired, fined, or allowed back in the classroom with no discipline.
Just 11 rooms hold the 700-plus teachers whose cases have not yet been resolved. The backlog has left some teachers on the city payroll for as long as two years before a decision is reached. In the meantime, teachers in the rooms pass the time by watching television, reading books, and writing.
A complaint the UFT sent to a deputy chancellor at the Department of Education, Kathleen Grimm, recently noted the crowded rooms' poor conditions, including inadequate toilet facilities and electrical violations such as exposed wiring.
Ms. Combier said her conversations with about 70 teachers so far suggest that a majority in the rubber rooms are also being denied due process rights — that is, they have been taken out of the classroom and placed in a center for as long as two years without any information as to why. "It's a public relations nightmare for the Board of Education," Ms. Combier said. "They will never live this down. I won't let them."
A Department of Education spokesman, David Cantor, said cooperation is a possibility. "We'll work with the UFT whenever we can," he said. "But don't be mistaken. The teachers in the rubber rooms have been accused of serious misconduct and crimes. We will not keep them with kids in schools simply because their contract says they must continue to be paid."
He said there are a few cases in which the city does not tell teachers why they are charged as a way of protecting the investigations against them. He said "virtually all" teachers know why they are in rubber rooms.
Ms. Weingarten's promise to ramp up pressure on the issue of rubber rooms comes as she is facing more pressure to act from inside her union and beyond. Factions have formed within the union to fight on behalf of teachers in rubber rooms, making suggestions ranging from hiring more staff to defend teachers to issuing subpoenas of state agencies on their behalf. One group, the Teacher Advocacy Group, plans to picket the union's Lower Manhattan headquarters Wednesday following a delegate assembly meeting, a retired teacher who is advising the group, Norman Scott, said. The group will carry signs charging that the union has "dropped the ball" on protecting teachers.
An independent filmmaker has also added to the fire with a documentary called "The Rubber Room," which several teachers said has generated interest from such high-profile outlets as Comedy Central's "The Daily Show."
Some in the union ridiculed Ms. Weingarten's push for compromise, saying it will not resolve what they described as the UFT's failure to provide teachers in rubber rooms with strong legal representation. "They need people that have some kind of understanding and background in employment investigations. They have nothing," a teacher who was placed in a rubber room and who is also a lawyer, Jeffrey Kaufman, said.
Ms. Weingarten's new team includes Ms. Combier, who said she has previous paralegal experience, and two journalists at the union's newspaper.

Just Cause

From INSIDE 3020-a Teachers' Trials:

Arbitration decisions: Are They in Compliance With The JUST CAUSE STANDARD - or is the Penalty Determined Under the JUST 'CAUSE Someone Dislikes You Standard?

If you are working in disciplinary hearings or 3020-a arbitration, or you want to appeal an arbitrator's decision, you should use JUST CAUSE in your argument.

Betsy Combier

  

                                                   

 JUST CAUSE FOR DISCIPLINE

Did You Know as a union member your employer can not discipline you or fire you without “Just Cause”?

The U.S. labor movement has secured a number of important rights for unionized workers. Among such rights, just cause provides important protections against arbitrary or unfair termination and other forms of inappropriate workplace discipline. Just cause has become a common standard in labor arbitration, and is included in labor union contracts as a form of job security. Typically, an employer must prove just cause before an arbitrator to sustain an employee's termination, suspension, or other discipline. Usually, the employer has the burden of proof in discharge cases or if the employee is in the wrong.

Employees are expected to meet performance standards and behave appropriately in the workplace. Disciplinary or corrective action taken by the employer is supposed to be a process of communicating with the employee to improve unacceptable behavior or performance. There is a set of guidelines, called the “Seven Tests of Just Cause” that employers are expected to follow when imposing discipline; that Unions need to assure have been applied to their members; and that arbitrators use as a basis to form their decisions.

A LITTLE HISTORY:

For decades, professional arbitrators struggled to reach consistent decisions in discipline cases, because they recognized that inconsistent results produced chaos in both the arbitration process and the work place. Finally, noted arbitrator Carroll R. Daugherty decided to take the bull by the horns by combining the many concepts employed by arbitrators in discipline cases into a single theory which he called “a sort of ‘common law definition” of just cause. It set out specific guidelines to be applied to the facts of any one case which we now refer to as the seven tests of just cause.

The award by Arbitrator Daugherty which is generally recognized as the first decision to formally set out all of the seven tests of just cause was in the matter of Enterprise Wire Co. and Enterprise Independent Union and was issued March 28,1966 (46 LA 359).

You can read Daugherty’s full Arbitration Decision
 This was a discharge case involving absenteeism and unsatisfactory work. Unfortunately, in this case, Arbitrator Daugherty ruled in favor of the employer; the union lost the case and the employee was fired. This historic case set the rules for Just Cause and is still being used today by employers, labor unions, and arbitrators.

DID THE EMPLOYER HAVE JUST CAUSE?

Using the Seven Tests

Here are the "Seven Tests" as to whether the boss has used "just cause" in discipline and discharge cases.

Issues

* Our main contractual weapon in discipline and discharge cases is usually the requirement that the boss must have "just cause" (or "fair cause" or "proper cause") to take action against an employee. Even if these words are missing from the contract, many arbitrators use this standard, anyway.

* But, what is "just cause"? Simply put: it means the employer must have a reason (he or she must have "cause") for imposing discipline and the reason must be fair ("just").

* It is commonly accepted that there are seven tests as to whether the boss has used "just cause" in handing out discipline.

One of the main reasons workers join unions is to gain protection against unfair and unjust discipline that employers hand out. Stewards must be ready to handle all sorts of discipline cases, from warnings to suspensions to firings. Stewards must be ready to deal with situations of gross discrimination by the boss on who gets disciplined, to dealing with union members who sometimes seem to go out of their way to get themselves fired.

Our main contractual weapon is often times summed up in one short sentence, "Employees shall be disciplined or discharged only for just cause". In some contracts the words used are "proper cause" or "fair cause". The importance of a sentence like this is that it binds the employer to imposing discipline not just for any reason (cause) but the reason has to be a "just" reason. Many arbitrators have gone so far as to hold all employers to a "just cause" standard, whether the contract uses the words or not.

What is a "just cause" standard? It is commonly accepted that there are seven tests as to whether a boss has used "just cause" in handing out discipline. The Bureau of National Affairs lists them as follows:

1. NOTICE – Was the employee adequately warned of the consequences of his conduct?

Prior to imposition of discipline, employees must have notice of rules and expectations. The warning may be given orally or in printed form. An exception may be made for certain conduct, such as insubordination, coming to work drunk, drinking on the job, or stealing employer property, that is so serious that the employee is expected to know it will be punishable.

Example: If an employee is told to stop using vulgar language and told that if he continues he will be disciplined, that may be adequate warning. However if a boss comes up to an employee and says "I'm tired of your swearing, cut it out", and then the next day fires the employee for swearing again, that may not be adequate warning.

2. REASONABLE RULES OR ORDERS – Was the employer's rule or order reasonably related to efficient and safe operations?

Was the employer’s rule reasonably related to (a) the orderly, efficient, and safe operation of the employer’s business, and (b) the performance that the employer should properly expect of the employee?

Example: A boss makes a rule that all employees must wear red tee shirts and they must be tucked in so they don't get caught in machinery. An employee is fired for wearing a blue tee shirt that was tucked in. Making a rule that tee shirts must be tucked in so they won't get caught in machinery may be reasonable and related to safety, but demanding the tee shirt be red isn't related to safety or efficiency.

3. INVESTIGATION – Did management investigate before administering the discipline?

Did the employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule of management? The investigation normally should be made before the decision to discipline is made. Where immediate action is required, however, the best course is to suspend the employee pending investigation with the understanding that he will be restored to his job and paid for time lost if he is found not guilty.

Example: The boss fires a worker for stealing and then demands evidence from the union that the worker isn't guilty. At the grievance meeting the boss admits he never investigated the incident, just took another employee's word. This probably wouldn't hold up. If the union has facts to prove the employee's innocence they should be presented to the boss, even though he failed to properly investigate the case.

4. FAIR INVESTIGATION - Was the investigation fair and objective?

Example: If an incident happened does the employer interview everyone present or only management people who were present. If the employer refuses to interview nonmanagement workers then the investigation may not be fair.

5. PROOF - Did the investigation produce substantial evidence or proof of guilt?

It is not required that the evidence be preponderant, conclusive, or "beyond reasonable doubt," except where the alleged misconduct is of such a criminal or reprehensible nature as to stigmatize the employee and seriously impair his chances for future employment.

Example: Here it is obvious that workers have fewer rights inside the workplace than they would have in civil court, but still the boss must have real evidence, not guesses. Again the boss cannot just try to make a worker prove his or her innocence, without presenting proof of guilt.

6. EQUAL TREATMENT - Were the rules, orders, and penalties applied evenhandedly and without discrimination?

If enforcement has been lax in the past, management cannot suddenly reverse its course and begin to crack down without first warning employees of its intent.

Example: This is the most common form of discrimination. An employer decides to suspend Mary for taking too long at lunch, but lets the employees who eat lunch with a supervisor take extra time every day. This would not hold up. However, if the employer tells everyone that starting on Monday employees will be disciplined for taking too long at lunch and on Tuesday Mary comes back late and everyone else has been on time, she may be disciplined.

7. PENALTY - Was the penalty reasonably related to the seriousness of the offense and the past record?

Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his or her service with the employer?

If employee A's past record is significantly better than that of employee B, the employer properly may give employee A lighter punishment than employee B for the same offense. The degree of discipline, is important because arbitrators want to ensure that the "punishment fits the crime." An employer's use of progressive discipline often gives the employer an advantage in arbitration.

Example: The classic example is two employees get in an argument and shove each other. One has 25 years service with a clean record. The other has 3 years service with lots of warnings and discipline. Based upon the workers seniority and records, the employer may give the older worker less punishment than the other worker.

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Tips for Handling Discipline & Discharge Cases

Here are some basic tips for stewards handling discipline and discharge cases:

* Use the "seven tests" as an outline. Did the employer meet the seven tests? Remember that just because an employer messes up on one of the seven tests, this doesn't mean we automatically win, but proving they screwed up helps a lot.
* Make sure that an employee's Weingarten rights aren't or weren't violated during the employer's investigation.

* Try to stop the employer from suspending or firing a worker. Try to get a cooling off period if necessary. The case becomes harder once a worker is out the door, now we not only have to fight about what happened but over back pay, etc.
* Ask for all the employers’ notes and records they used to make a decision. Get any notes or records a foreman or supervisor might keep, even informal records. The union has a right to them. On the other hand the employer has no right to the notes or records that the union makes when investigating a case.
* Do a thorough investigation of the case. DON'T take the employers word on anything.
* In a grievance meeting make the employer prove their case first. Make them present all the facts and don't assume anything. Don't let the boss start the meeting by saying to the union, “OK tell me why I shouldn't fire Joe". Make the boss justify firing Joe.
* There are two parts to every discipline case. Did the employee violate a known rule and what should the punishment be? Sometimes we lose the first part but then we have to make sure the punishment fits the offense.
* If the employer refuses to back down from a written warning and the case doesn't merit arbitration make sure the employer receives from the union a written statement disputing the facts and the discipline. Have this letter also put into the employees personnel file.

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In closing, we should all be aware of the JUST CAUSE principles; and we all need to know what PROGRESSIVE DISCIPLINE looks like.

Within any workers career they will face at least one episode that could be discipline. Has your supervisor discussed a matter with you that he or she has asked you to change? It may sound like a friendly suggestion; and it might be. But it also is Step one of Progressive Discipline.

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SOURCES:
http://en.wikipedia.org/wiki/Just_cause"Categories: Employment
http://research.uiowa.edu/pimgr/?get=7steps
http://www.umass.edu/usa/justcause.htm
http://www.ueunion.org/stwd_jstcause.html (includes cartoon)
http://das.hre.iowa.gov/html_documents/ms_manual/11-10.htm
http://clear.uhwo.hawaii.edu/EnterpriseWire.html