Just Cause for Discipline WACO Conference Pasco, WA – October 3, 2012

Just Cause for DisciplineWACO ConferencePasco, WA – October 3, 2012 Shannon E. Phillips

Discipline for Just Cause • Can only discipline for “just cause” • Collective bargaining agreement • Civil service commission rules • Employment policies

Discipline for Just Cause • Why does it matter? • Standard by which disciplinary decision will be judged if challenged • If you understand how just cause will be evaluated after the fact, you can take steps to increase likelihood that the decision will stand

Discipline for Just Cause • Seven factor test is used by most arbitrators • Created and popularized by labor attorney Carroll Daugherty in 1960’s

Discipline for Just Cause • Notice that conduct was in violation of rules and could lead to discipline • Did the employee know that this conduct or level of performance would result in disciplinary action? • Policy handbook provisions • Progressive discipline • Performance evaluations • Training materials • Laws and statutes • Common sense?

Discipline for Just Cause • Are the rules that were violated reasonable? • Is there a rationale relationship between the rule violated and the job in question? • Does the rule support an important employer interest? • Is there a connection or “nexus” between off-duty misconduct and the employer’s interests?

Discipline for Just Cause • Was there an investigation? • Was the allegation looked into? • Full investigations are not necessary on less important matters

Discipline for Just Cause • Was the investigation fair? • Was the investigator neutral? • Was the investigation started and completed in a timely way? • Did the accused receive all his/her procedural rights • By contract, policy, law • Did the investigator consider all relevant evidence? • Did the investigator give serious consideration to the accused’s position? • Was the result pre-ordained? • Was there political pressure to find a certain way?

Discipline for Just Cause • Did the investigation reveal substantial evidence of a violation? • Is it a he said/she said case? • Eyewitness testimony • Documentary evidence • Admissions of misconduct • Credibility/character of accusers

Disciplinefor Just Cause • Did the employee receive the benefit of all procedural safeguards? • Weingarten rights for unionized employees • Loudermill right • Rights established by contract or policy?

Disciplinefor Just Cause • Weingarten right • Right to have a union representative present (in investigatory interviews where employee reasonably believes could result in discipline) • Role of union representative: • Can clarify ambiguous questions • Can set appropriate limits • Cannot answer for witness • Cannot coach witness • Cannot obstruct interview

Disciplinefor Just Cause • Loudermill right • When economic consequences: suspension, demotion, discharge • Notice and opportunity to be heard before final decision. • Procedural rights in contract or policies? • E.g., time limits, rights to documents • Police Bill of Rights?

Discipline for Just Cause • Was the employee treated equally to other employees? • The concept of “comparators” • Other employees who have committed similar misconduct • Must justify harsher treatment of this employee • Different performance history • Use of progressive discipline • Different level of responsibility • Higher expectations for supervisory employees • Under new management

Discipline for Just Cause • Was the sanction imposed fair? • Length of service as an employee • Performance record • Disciplinary record • Severity of misconduct • Progressive discipline • Acceptance of responsibility

Discipline for Just Cause • Consequences of a reversal of discipline • Morale • Reinstatement • Back pay and benefits • Attorney’s fees and costs? • Unless contract specifically provides that each side pays its own arbitration costs, including attorney’s fees

Just Cause for Discipline WACO Conference Pasco, WA – October 3, 2012