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Defending Disciplinary Cases
Union representatives and stewards must always handle grievances with the possibility of taking the case to arbitration. This is especially the case in disciplinary cases. Special care should be taken, because of the union's increased obligation of duty of fair representation in disciplinary cases. For this reason good note-taking, a thorough investigation, and filing the grievance in a timely manner are extremely important in disciplinary cases.
In a disciplinary case, management must prove that they had "just cause" to administer the discipline. Management has the burden of proof, but unlike in a criminal court, management must prove its case by a "preponderance of evidence" or "substantial evidence", not "beyond a reasonable doubt."
An Arbitrator's Seven Tests of Just Cause
1. Proper Notice: Was the employee given advance warning of the probable
consequences of his or her conduct?
2. Reasonable Rule or Order: Was the controlling rule or order reasonably related to efficient and safe working conditions?
3. Full Investigation: Was the alleged violation of the rule or order fully investigated before discipline was administered?
4. Fair Investigation: Was the investigation fair and objective?
5. Substantial Proof: Did the investigation uncover substantial proof of guilt?
6. Equal Treatment: Was the employer's treatment even-handed and non-discriminatory?
7. Appropriate Penalty: Was the disciplinary action reasonably related to the employee's record of service with the organization and the gravity of his/her offense?
(As used by Arbitrator Carroll Daugherty in Enterprise Wire Company and Enterprise Independent Union, 46 LA 359)
Defending Disciplinary Cases
Lines of Defense
1. Is the worker guilty as charged? (i.e. has management proved its case?)
2. Were there mitigating circumstances (i.e. a good excuse)?
3. What is the worker's prior disciplinary record? Was there prior discipline for similar or different offenses?
4. What is the worker's record? How are his/her yearly evaluations? Any letters of commendation?
5. How many years has the grievant worked for the company?
6. Was the rule allegedly violated clearly understood, properly communicated, consistently enforced among all workers?
7. Was there disparate treatment? (i.e. have other workers been treated differently in similar circumstances?
8. Has progressive discipline been applied? Could a lesser penalty be equally effective?
9. Was the worker given due process? (i.e. was the case handled fairly by management?)
10. Was management also at fault?
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