Just Cause Does Not Mean Just Cuz: How to Prove Your Discipline Case

Just Cause Does Not Mean Just Cuz: How to Prove Your Discipline Case Eric Paltell, Esq. 2016 Annual Conference April 18, 2016 Memphis, Tennessee Overview Origins of Just Cause Seven Tests of Just Cause Standards of Proof Hot Topics Attendance Workplace Violence Sex Harassment Last Chance Agreements Case Studies Origins of Just Cause All Rights Reserved 1

Origins of Just Cause Traced back to 1349 Statute of Laborers First codified in 1562 Statute of Artificers Followed by American jurisdictions until 1877, when it was replaced by at-will doctrine Resurfaced with rise of organized labor in the 1930 s Now implied in virtually every labor agreement Just Cause Defined Just Cause Defined No clear definition of just cause Shorthand for what the arbitrator thinks is fair Two principles common to every definition: 1. Industrial due process 2. Progressive discipline (notice and opportunity to improve) All Rights Reserved 2

Seven Tests of Just Cause Originates with Arbitrator Carroll Daugherty in 1964 Grief Brothers Cooperage Corp. decision If answer any question no, just cause is lacking Seven Tests of Just Cause 1. Notice? 2. Reasonable Relationship to Business? 3. Investigation? 4. Fair and Objective? 5. Proof? 6. Equal Treatment? 7. Appropriate Penalty? Notice? Did employer make employee aware of consequences of misconduct? All Rights Reserved 3

Reasonable Relationship? Was the rule reasonably related to the safe, efficient, or orderly operation of the business? Investigation? Did the employer conduct an investigation and give the employee an opportunity to defend himself prior to making a decision? Fair and Objective? Was the investigation fair and objective? All Rights Reserved 4

Proof? Is there substantial evidence that the employee was guilty as charged? Equal Treatment? Has rule been applied consistently to all employees? Appropriate Penalty? Was the degree of discipline reasonably related to the seriousness of the offense and the employee's record of service? All Rights Reserved 5

Burdens of Proof Employer always carries the burden (and presents first) Preponderance of the evidence in most cases involving normal work rules Clear and convincing in cases involving behavior that may be subject to criminal prosecution Rarely proof beyond a reasonable doubt Absenteeism Cases Attendance Cases Existence of policy is key Collectively bargained or unilateral? Illness generally difficult to rely upon Impairment vs. treatment for substance abuse Incarceration Funerals Car Trouble Inclement Weather All Rights Reserved 6

Workplace Violence Workplace Violence Employer has duty to provide safe workplace Civil liability concerns which lawsuit would you rather defend? Fights v. Threats v. Weapons Workplace Violence - Fights Generally grounds for discharge No rule required Disparate treatment is key were they both fired? Mitigating Circumstances All Rights Reserved 7

Workplace Violence: Threats Threats taken seriously, especially now Factors: Was it specific? Did employee have means to carry it out? Does employee have history of violence (on or off work)? Would person who heard threat reasonably fear for safety? Workplace Violence: Weapons Possession and/or brandishing of weapons often grounds for discharge Does employee have need for weapon as part of duties? Whether possession alone is just cause depends on circumstances and work rule Like airports, jokes are not funny Workplace Harassment All Rights Reserved 8

Workplace Harassment Same definitions used in Title VII are applied Clear and convincing evidence required Existence of written policy and training is critical Victim testimony? Employer may prefer to have arbitrator do the dirty work and bring harasser back Last Chance Agreements Last Chance Agreements Exception to just cause requirement Applied most often in substance abuse cases and attendance cases Scrutinized closely by arbitrators Generally enforced if: 1. Unambiguous 2. Understood by parties, and 3. Reasonable All Rights Reserved 9

Workplace Theft Case Study Dwayne works in Public Works for the City of Lovingston. He is represented by AFSCME, and has worked for the City for 3 years. He is employed as a Custodian, cleaning offices and restrooms in City Hall. There are a two other Custodians, each of whom works a part time schedule, who are not in the Union. Recently, City Hall has experienced a rash of workplace thefts. Employees have had phones and wallets stolen from their coats, and even clothing has disappeared. Office supplies, such as flash drives, boxes of pens, staplers, and packs of printer paper, have also been reported missing from the supply room. One day, the Director of Public Works observes Dwayne putting a small white bag in his truck during his lunch break. Suspicious of the activity, the Director decides to look at video footage of the parking lot that is available for the last 30 days. On two other occasions, he sees Dwayne placing bags in his truck during his breaks or after work. One of those two days is a day where an employee reports that her purse was stolen from her desk. Nothing was reported stolen on the day where the Director saw Dwayne putting a bag in his truck during his lunch break. The Director of Public Works decides to keep an eye on Dwayne, as he can see the parking lot from his office. Sure enough, one day he sees Dwayne carry a small plastic bag out of City Hall with him and place it on the floor of the passenger side of his truck as he is getting ready to leave for the day. The Director walks out to the parking lot, confronts Dwayne, and asks what is in the bag. Dwayne says its personal belongings. The Director asks to see the contents, but Dwayne refuses. He then drives off. Later that day, an employee reports that his cell phone and wallet are missing. The Director of Public Works asks the Police Chief if they can get a warrant to search Dwayne s home. After talking with the State s Attorney office, the Police Chief tells the Director he does not think they have sufficient evidence against Dwayne to get a warrant. Frustrated, the Director of Public Works decides to take matters into his own hands. He calls Dwayne into his office, where, accompanied by the Assistant Director, he questions Dwayne about the four occasions when he has seen Dwayne place bags in his car. Dwayne breaks into a sweat and says he does not want to talk about this anymore. He tells the Director he suffers from severe anxiety issues, and he refuses to answer any further questions about the bags. Based on Dwayne s reaction, the Director concludes Dwayne is the culprit. The City decides to fire Dwayne. The reason for termination listed in his discharge notice is suspicion of theft and failure to cooperate in an investigation. The Union files a grievance challenging the termination. Article 17 of the Collective Bargaining Agreement, entitled Discipline and Discharge, lists theft as an offense that may be grounds for immediate discharge. The City s Policy and Procedures Manual has a Workplace Safety policy which says that the City may search an employee s locker, desk or work area when a manager has reasonable grounds to believe that an employee may be in possession of material that poses a threat to the safety or wellbeing of other employees or the public. There is nothing else in the Policy and Procedures Manual or the CBA addressing searches or the failure to cooperate in an investigation. Does the City have just cause to terminate Dwayne?

Workplace Violence Case Study Dennis is a 23 year veteran of the Davis County Public Works department. For the last seven years, he has worked on the street repair crew, filling pot holes and performing other road maintenance tasks. Street maintenance workers carry 2-way radios so that supervisors can communicate with them remotely when the crew is at a job site. All of the non-supervisory Public Works employees are represented by AFSCME. On April 1, 2015, Dennis is out on a road repair call as part of a four- man crew, which includes one supervisor. The supervisor, Bob, remains in the truck dong paperwork while the other three are out repairing a sinkhole next to a storm drain. While sitting in the truck, Bob hears a conversation between Dennis and the other two crew members that is being transmitted over the two way radio. Apparently, one of the crew members has inadvertently left his radio in the open position, which allows Bob to listen in to their conversation. Bob hears Dennis say to another crew member: I am so sick of Bob riding my a-s. If I had a knife, I d cut that S.O.B. Shaken by what he has heard, Bob stops listening to the conversation and uses his cell phone to call Paul, another supervisor who is working on a repair job nearby. He tells Paul what he just heard, and they decide the issue is best addressed when they get back to the maintenance shop rather than in the field. When Bob s crew returns from the field, they clean up and leave for the day. Bob, accompanied by Paul, goes to the Director of Human Resources office and relays his story. Paul confirms that Bob called him, relayed the statement he heard Dennis make, and seemed very upset when he called. Bob and Paul both said that they were aware that Dennis had been arrested and charged with assault with a deadly weapon in connection with a domestic issue several years ago, but the charges were dropped by Dennis wife. The Director of Human Resources gets both Bob and Paul to sign written statements detailing what happened. The Director of Human Resources takes charge of investigating this matter. Because Dennis and his crew leave the maintenance shop at 7:30 each morning, he concludes that he is not able to talk to Dennis and the crew members until they return from the field the next day. However, while they are in the field, the Human Resources Director conducts a search of Dennis s locker (County policy provides that the County has the right to search lockers, with or without employee consent). At the bottom of the locker, beneath some clothing, he finds a hunting knife with a 5-inch blade. The knife is dull and dirty, and does not appear to have been used in some time. When Dennis s crew returns from the field, the Human Resources Director interviews each of the three crew members individually, starting with Dennis. All three, including Dennis, deny that he ever made any statement about cutting Bob if he has a knife. Dennis also denies having a knife at work. When shown the knife and told it was found in his locker, Dennis appears surprised. He then says that the knife has been in there for years, and that he used to use it to open boxes of supplies when he worked in grounds maintenance years ago. Dennis explained that he sometimes could not find a box cutter, so the knife was needed when he worked in his former position. The Human Resources Director does not get written statements from Dennis or the other two crew members. 1

The County s Workplace Violence policy provides, in relevant part, that the following conduct is grounds for disciplinary action: o o o employment. engaging in behavior that creates a reasonable fear of injury in another person; possessing a weapon in any County building or vehicle; and threatening to injure an individual. The policy states that the penalty for a violation is most often termination of Dennis has no disciplinary actions in his file in the past 12 months. Under the terms of the CBA, the County cannot consider discipline that was issued more than 12 months earlier. Three years prior, Dennis had been issued a written warning for telling a co-worker with whom he s gotten into an argument I ought to kick you re a-s. After completing his investigation, the Director of Human Resources decides to fire Dennis for violating all three of the provisions of the Workplace Violence policy cited above. AFSCME files a grievance, alleging that Dennis was fired without just cause. 2