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.
NPELRA
2016 Annual Conference
April 18, 2016
Memphis, Tennessee
Overview
► Origins
of Just Cause
Tests of Just Cause
► Standards of Proof
► Hot Topics
► Seven
 Attendance
 Workplace Violence
 Sex Harassment
► Last
► Case
Chance Agreements
Studies
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Origins of Just Cause
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1
Just Cause Does Not Mean Just ‘Cuz:
How to Prove Your Discipline Case
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
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Just Cause Defined
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Just Cause Defined
► No
clear definition of just cause
for what the arbitrator thinks is
► Shorthand
fair
► Two
principles common to every definition:
1. Industrial due process
2. Progressive discipline (notice and opportunity
to improve)
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Just Cause Does Not Mean Just ‘Cuz:
How to Prove Your Discipline Case
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
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Seven Tests of Just Cause
1.
2.
3.
4.
5.
6.
7.
Notice?
Reasonable Relationship to Business?
Investigation?
Fair and Objective?
Proof?
Equal Treatment?
Appropriate Penalty?
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Notice?
► Did
employer make employee aware of
consequences of misconduct?
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Just Cause Does Not Mean Just ‘Cuz:
How to Prove Your Discipline Case
Reasonable Relationship?
► Was
the rule reasonably related to the safe,
efficient, or orderly operation of the
business?
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Investigation?
► Did
the employer conduct an investigation
and give the employee an opportunity to
defend himself prior to making a decision?
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Fair and Objective?
► Was
the investigation fair and objective?
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Just Cause Does Not Mean Just ‘Cuz:
How to Prove Your Discipline Case
Proof?
► Is
there substantial evidence that the
employee was guilty as charged?
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Equal Treatment?
► Has
rule been applied consistently to all
employees?
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Appropriate Penalty?
► Was
the degree of discipline reasonably
related to the seriousness of the offense
and the employee's record of service?
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Just Cause Does Not Mean Just ‘Cuz:
How to Prove Your Discipline Case
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”
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Absenteeism Cases
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Attendance Cases
► Existence
of policy is key
 Collectively bargained or unilateral?
► Illness
generally difficult to rely upon
vs. treatment for substance abuse
► Incarceration
► Funerals
► Car Trouble
► Inclement Weather
► Impairment
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Just Cause Does Not Mean Just ‘Cuz:
How to Prove Your Discipline Case
Workplace Violence
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Workplace Violence
► Employer
has duty to provide safe
workplace
► Civil liability concerns – which lawsuit would
you rather defend?
► Fights v. Threats v. Weapons
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Workplace Violence - Fights
► Generally
grounds for discharge
rule required
► Disparate treatment is key – were they both
fired?
► Mitigating Circumstances
► No
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Just Cause Does Not Mean Just ‘Cuz:
How to Prove Your Discipline Case
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?
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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
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Workplace Harassment
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Just Cause Does Not Mean Just ‘Cuz:
How to Prove Your Discipline Case
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
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Last Chance Agreements
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Last Chance Agreements
► Exception
to just cause requirement
most often in substance abuse
cases and attendance cases
► Scrutinized closely by arbitrators
► Generally enforced if:
► Applied
1. Unambiguous
2. Understood by parties, and
3. Reasonable
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Just Cause Does Not Mean Just ‘Cuz:
How to Prove Your Discipline Case
Case Studies
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FOLLOW-UP QUESTIONS?
Eric Paltell, Esquire
Kollman & Saucier, P.A.
www.kollmanlaw.com
443-632-2429
[email protected]
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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
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
employment.
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