 So I welcome everyone I see people are joining we're at a hundred and fifty people right now So we're just going to give it a couple minutes let folks get a chance to get on Get our Facebook live stream going and then we'll be ready to rock and roll Then life's not good, right? Okay, so welcome everyone This is our first in a series of webinars with Robert and shorts tonight. We'll be discussing Intro to just cause and we're so happy that all of you could make it My name is Bianca Cunningham. I am a staff organizer at labor notes Labor notes for those of you who don't know is a mixed media project. We've been around for 41 years now It consists of a magazine that gets published monthly that covers struggles rank and file struggle struggles from their own Perspectives we like to say we're trying to put the movement back in labor movement And the other piece of the work that we do is doing trainings and offering things like troublemaker schools and events that are open to the public or Rank and file union members and union activists in general so that we can teach stuff about how to organize Based on our book secrets of a successful organizer and a host of others That host of other trainings that we offer and so we do both training and we do publication We're so happy to have our guests tonight Robert M. Schwartz and We will go ahead and get started. So quickly Robert M. Schwartz grew up in New York and attended Randy University where he studied under professor Herbert Marque sometimes called the father of the new left a member of students for a democratic society or SDS Schwartz organized against the Vietnam War Supported striking UAW workers and helped lead a successful campaign for recent for rent control Excuse me in Cambridge, Massachusetts Schwartz has been a member of four unions in one workplace a South Boston warehouse He helped to organize a teamsters local after graduating from law school in 1976 Schwartz represented the United Electrical Workers Worked as a hearing officer for the Massachusetts Labor Relations Commission and served as a partner in a union So in in union side law for firms Currently Schwartz concentrates on writing teaching and training. He is a frequent speaker at Union meeting Conferences and convention. He lives in Boston where he is a bicycle and tennis enthusiast Welcome Robert. Thank you. Be outcome Glad to be here with all the However, many attended do we know the number perhaps? Is it I know that's we're sitting at about 250 right now. That's a lot of people to be in my house at the same time So some of you know me because I've been writing handbooks, that's the main thing that is People know I've been writing label or handbooks for about 35 or 40 years And the books have been very popular because they try to answer practical questions in a simple straightforward way One of the books the first book I wrote was called the video voice of union stewards That's probably the most popular of the books, but the book we're going to talk about tonight Issues this is called just Winning discipline cases and And this book is published by labor notes and is available on the store The price is close for a while during the worst months of the pandemic and it's now back the book the price of the book is $20 and They ask for $6 for Houses for each book and then it drops out if you buy more than one So hopefully some of you have the book the first edition 2012 the second edition came out in 2018 Whenever I do something that involves technology and such as zoom meeting or any other computer or microphone I'm reminded about the story of the union president and the company's CEO Uh Which of our technology It was in Pennsylvania and there's a factory that had Notified the union that it was laying off about 20 percent of the workforce Mainly people making support Well, the union president immediately demanded a meeting with the company CEO to try to bargain a change in the decision He was invited to come to the CEO's private office and he and the Iraq There was a long table and at the table was the company CEO as well as the company's head So all three individuals sat down at the table they filled their papers and the union president began to make his presentation At that very moment the company said I'm sorry Jack. I just remembered I have to speak with my best president At that point he started talking into his Union as union president was kind of But also impressed he says wow he has a two-way Because this was several years ago before Very common Well, when the conversation was finished The union president stood up to begin his presentation at that time the company lawyer interrupted and said jack I'm really sorry. I've got a brief to Later today. I've got to give my lesson and And he started talking into his watch to his associate going over the brief Well, the union president said that's very impressive. He's got two ways The other guy has a two-way in his lapel I've got to do something So he Will have to wait a few minutes. I have to see a man about a horse And at that point he got up and Five minutes later he came back to the When he entered the room the company CEO and the company lawyer started to laugh because There was from from the from the union president's pants There was toilet paper coming back outside his belt and down his leg to the floor and then out the floor to the hall Well, the company CEO and the company lawyer thought that was the funniest thing they ever saw and the company CEO Bent over and said jack you want to leave this but you've got toilet paper coming out of your butt I'll help you. I'll just lean over here and snap it off The union president turned to both of them said don't touch that. That's facts coming in from the internet Well, hopefully somebody Yeah, I Just do want to note really quick Robert that some folks are saying that they are struggling to hear There's some feedback. So I wonder if we can get closer to the mic Okay Let's see if I do this But if I put the mic right in front of me, is this better? Yes Okay. All right Well, all right, that was my one joke and my one laugh and now I think we can start the workshop this workshop concerns how to make effective arguments in discipline cases using the principles of just cause Just cause is a very important part of the union contract Some people might argue that just cause is the most important article in the union contract There would be a debate obviously pension is important seniority is important Layoffs is important so contractings important, but You could also argue that without the just cause clause everything else falls apart that without just cause There really couldn't be a union Because and therefore there wouldn't be any way to enforce the contract Without just cause the employer could discharge Anyone they wanted on any basis whatsoever without the just cause clause Union members would be at will employees just like the non union sector of the workforce in the United States Without just cause a union president could be fired for being late-drive minutes The chiefs to be fired this regular steward to be fired. In fact, it would be such that no one would be Brave enough. I can't imagine anyone being brave enough to take the job of a union representative in those situations The union would be a shell the contract would be a joke That's why I think it's fair to say that the union that the just cause clause is the most important portion of the contract Unions have had just cause clauses in their contracts probably since about 1935 1938 at this point It appears that about 95 percent of unions have a just cause clause in their contract the only major areas of union In the union world that don't have dust cause is to indices one is the construction trades Such as the carpenters such as the glaciers the electricians and the other and the other sector would be the entertainment such as union Actors union actresses directors produces in Both the construction and the entertainment world employees have no protection against discharges and The employers can let people go at will why this happened what historical forces Led to that. I don't I don't know it'd be an interesting research study Of the 95 percent that have just cause laws as most of them say something to the following the No employees shall be discharged or disciplined without just cause Some contracts use a little different language. They say reasonable course or they say proper course Or they might say good course and some employers think well, we don't have just cause we get good cause that's better That's not as tough as just cause they think they've achieved something by changing the language from just cause to good cause But they're surprised because when the cases that arise Are taken up the ladder to especially to arbitration. They find that arbitrators apply the same standards To a contract with good cause reasonable cause With proper cause and with just cause so we're all in the same boat Another point that makes it Fun for me to do give this workshop is that unlike other areas of labor law Just cause is the same in both the public sector and the private sector so that The way we apply just cause is the same for the public employees as well as for private sector Now when in the first when unions started to File just cause grievances and take cases to arbitration The decisions that came down from arbitrators were a little clumsy a little unclear Why because the definition of just cause is not that is not it's not self evidence Which people around this whole room of two hundred fifty three hundred people asked for Best definition of just cause and we would get three hundred different definitions It's a it's a kind of amorphous language ambiguous Some arbitrator said I can't you know, this is a difficult language for me to apply But I'll do my best. I think I know it when I see it Well, that doesn't help the union too much because that doesn't help you frame a case That doesn't help you develop a case because you don't know what standards the arbitrator is going to apply So I would say for the first ten twenty years. It was frustrating for you to pursue a discipline cases In the 1960s an arbitrator in Chicago his name Unusual name named Carol Dorgon He was an arbitrator who heard a lot of cases in the railroad He was frustrated just like the unions and he determined to try to do something about it and to categorize The elements of just corns the accepted and agreed on Elements of just cause agreed on among the arbitration profession the professions were here the disputes as they go up the ladder and He came up with something called the seven tests of just corns And he applied it to all the cases that he heard And he would either put it in the decision and then talk about each principle or he would sometimes attach Boiler plate seven tests of just cause at the end of his decision Well unions were pleased with this development because now for the first time they had a checklist They had a list of what is just cause and what isn't just cause It was something that helped them to prepare cases and to present cases So unions were have been were enthusiastic about the door goody or the door goody seven tests Unfortunately, the arbitration profession was mixed in reaction to Dorothy after all in the way he was a competitor of theirs They're all competing to get cases from unions. Dougherty comes out with seven tests Some of them didn't want to go along with it simply out of pride But others also objected to the seven tests on a few more more realistic reasons for example Dougherty had said in his seven tests that employer that Could not win a discharge case in arbitration Unless the employer could prove that he carried out a full and fair and objective investigation Which sounds good However, many arbitrators said well really that's I'm not you're telling me that I have to overturn the case The case just taken to me of an employee who I'm convinced stole ten thousand dollars worth of merchandise from the employer They have all kinds of witnesses That he stole this merchandise he admitted it in his interrogation You want me to turn To put this work of back to work with back paper Because you're able to show me that the employer did not do a full investigation The employer only interviewed three of the six possible witnesses the employer did not review the entire Background and record of the employee before it made its decision Well arbitrators don't didn't agree with that They said if the employer can come from arbitration hearing and present solid proof of misconduct serious misconduct I'm gonna find the employee guilty and I'm gonna take the appropriate action I'm not gonna bond them myself with how the particular investigation took place And they rejected Dorothy it turned against Oregon another problem with Dorothy's tests He doesn't mention progressive discipline as a requirement of just cause but by the 1960s and certainly by the 70s and 80s almost all unions had won the concept had it had one agreement to the concept that Discipline must be progressive now Discipline is not with the goal of punishing an employee Like a criminal punishment discipline is to rehabilitate to improve Consequently, it's it's necessary that an employer apply discipline in a progressive manner Starting with a low penalty going to a middle penalty and then not only then if the employee continues to offend moving to a long suspension or discharge Dorothy's tests also for one reason or another. I don't know why he doesn't mention the concepts of Extenduating and mitigating circumstances Now some of you understand have been through this and some haven't but over the years we have Proven we have established within labor relations the concept that when an employee makes a disciplined decision He's supposed to consider all the circumstances of the case not just what happened on June 19th 2020 but the background of the employee the accuser The the influence is on the employee why the employee might have done what he or she did was there a medical problem Was this employee an excellent worker? Are there really good things about this employee that should be considered before determining what level of discipline is appropriate? But do I wish test don't give the employee arbitrator That option and they deny the union therefore the ability to win cases that it could have won other ones When I said about writing a new handbook on just cause I first I was going to just explain to order these seven tests But when I discovered or realized that that his tests are flawed I decided to rewrite the seven tests and I did that and I have seven principles of just cause Which we're going to discuss tonight, and I think that these seven principles. I'm firmly convinced You can take to the bank these principles are accepted within the labor relations world by both employers and by unions and by arbitrage And my suggestion to you is that you and when you investigate a grievance that you apply You look at it when you look through the seven tests or seven principles If you can find two or three principles that appear to be violated those are what you should center on Complete your investigation develop your evidence and present your case focusing on the one two or three principles Which are violent some lawyers and union representatives have a different view their view is that? All right, there's seven principles of just cause I'm going to present an argument that the employer has failed each of the seven principles If I don't do that, I'm not doing my job And they then they hit they hit two or three the good ones And then they go through the other four or five, but they have no Support no evidence and they're making kind of foolish arguments or frivolous arguments But when you do that it's like throwing stuff against the wall you hope it sticks But when you do that you make an unconvincing presentation you you are saying to the arbitrator I'm not really convinced that anyone of these is very strong. I'm hoping that all seven together are strong Arbitrated then concludes you don't have faith in your place my advice my experience 45 years or whatever it is It's a pick your one two at the most three points three arguments Develop them present them and rest your case So with that is back man Bianca can we put up this to your nutshells the seven Basic principles of just cause in a nutshell Sure, and I also just want to note that Sound is much better But if you can just be mindful about staying close to the mic Thank you. All right So this screen is a nutshell of the seven principles of just cause that I have argued to you Apply and have been accepted by the labor relations community number one Employers must inform employees of workplace rules Number two employers may not penalize employees for violating previously unenforced rules Number three employers must follow due process Number four employers must have substantial proof of misconduct five employers must treat employees equally sex Next slide Bianca the next slide has six seven and six and seven. I think you see it. No, I don't see it Well, that's okay. I'm just going to read it out. I don't see it on my screen number six Oh, there it is sex employers must apply progressive penalties. That's the progressive This is then we were just talking about and number seven employers must take account of mitigating extenuating and aggravating circumstances now each one of these principles deserves discussion and Is something that you might be able to win a case on But we're going to go into go into each one with some detail. Hopefully we can do it by the 8 o'clock 815 and leave some time for questioning although I do Usually I take about three hours for this workshop. So let's see what happens. All right number one fair notice Fair notice in detail says an employee may not be punished Violating a rule or standard whose nature and penalties are either self-evident or have been made known and This is a common-sense principle an employee should not be you should not you should not be able to punish a worker Or violating the rule that that worker didn't know have any reason to know about that rule does not explain to the worker was not given to the work obviously that's unfair and It obviously is not just cause To do so We used to win cases on fair notice because in a lot of case Players just put out the rules and have hazard manner or they announced them in departmental meetings And then we would we would make the argument that employee this particular employee was never Given talk about the rule in question and we would sometimes win the case in reaction We now know that and what employers do now is is they write up all the rules with them in a handbook And they distribute that handbook to the employee the first day of hire or very quickly there after and then just so off the case for themselves They asked the employee to sign a receipt saying that he or she has received the handbook so That has taken away our ability to win many cases on fair notice now sometimes employees say well Yes, I may have gotten the handbook and maybe in the handbook, but I'm a very poor reader and I don't really understand handbooks very well and Consequently, I had no idea about this rule. I say you're talking a rule about drug I had no idea that I'd be tested when I returned from vacation What happened while I was on vacation? Well, the rule says Explains that it's just maybe a four-page rule and this worker didn't happen to read it Can we win that case? Is that a case? Is that a situation where? We have proven that the employee did not have notice of the rule in question Unfortunately, the answer is no almost all arbitrary arbitrators take the position that Employee is expected to read and understand written materials that All Explanations of rules given in the department meeting otherwise If a worker is not a good reader or doesn't understand what he's reading he or she is expected to get help From either another worker shop steward or the supervisor in question He's not supposed to just say well, I'm not a good reader. So I'm not gonna I'm gonna take the handbook and put it in Consequently my advice is if you have an employee in your department who's not a reader doesn't read Maybe he's a little bit lazy or she's a little lazy in that situation. My feeling is that the steward has a responsibility to be proactive and To get ahead of the game by calling the worker aside asking if the worker has read the handbook Is there a section of the handbook that you're having trouble with is there a section of the handbook? You want some help with and then explaining what the rules require Now you might say I'm a student. That's a job of a supervisor and in a certain sense, you're right But in a practical sense and in a sense of saving somebody's job My view is that you should be part of The rules to your members now One of the ways that This rule pops up When you represent somebody in a disciplinary interview and as you all know Employers are expected and they do Minutes just due process will see that the disciplinary interview is a requirement of just once but When you get called as the steward if a worker is called in for a disciplinary interview And if that worker has the presence of mind to request his or her steward and you're called in as the steward You're gonna show in and you're gonna probably ask the employer What are we what are we here for what is the nature of the of the investigation? And then you're probably gonna say I would like to have a private course with this employee So I can prepare and help this worker prepare for the examination. These are your rights And this is what all unions advise of their union representatives when you meet with that worker You'll go many things and we'll talk You'll explain to the worker the need to say cool not to lose control Not to lie outright Who committed possible Violations and you'll go over perhaps a raft of things to help that worker deal with the examination And when you do that you might also tell that worker that it's very likely that the first question That the employee will ask during that interview if they will turn to you and they will say to you Now you are aware are you not? That we have a company rule Against leaving the premises without permission of a supervisor and the worker is expected to answer that question Now most workers would say yes Yeah, I know you have that rule and then the employer will follow up and he will say and you know That the company deals harshly with people who violate that rule And they want to work and say yes to that question because that satisfies fair notice now They have to work and knew the rule and he knew the punishment At least the punchman could be severe and that's really all the employer has to do He doesn't have to give the precise punishment that will be applied But he has to indicate whether it's a heavy punishment or light punch But once the employee has admitted those two facts, he's heard this case In fact, you might say he's very much hurt his case Because he's admitted two of the necessary elements of Josh Carter's My advice for you as a steward in that situation is to say to the worker You don't have to answer yes to those questions You need to quantify that you might you may it may be better for you to quantify your answer You might want to answer that yes, you know, there's a rule But no, you did not know it was subject to a stiff punishment And in fact, was your understanding that the rule wasn't even being enforced in your area or your department That is you're not admitting that you were aware of the rules that the rule is active and is being forced This is good advice in dealing with the first Requirement of just course Let's move on to the next element of just course the next principle number two active enforcement Punishment may not be imposed for conduct that the employer has tolerated for a prolonged period Now this principle actually relates to the first principle fair notice if A employer doesn't enforce a rule for quite some time One message is that employer sending to the workforce The employer is sending a message that the rule doesn't apply any longer Well, we no longer are applying this rule or we're taking this rule off. That's the clear suggestion when you don't enforce Clear violations of a rule. You're telling workers the rule is no longer enforced Consequently you have violated both rule principle one and principle two And in that situation the proper remedy When employee is Can establish that he had reason to believe that that the rule was not enforced He didn't know about the rule the rule was not enforced Then the proper remedy for that worker is fold back his regent statement And fold back pay that is to be made whole because that employee is not at fault It's not partially at fault a little bit of fault. He's not at fault when you violate a rule that you don't know about Or that you have reason to good reason to believe. Let's go back. Good reason to believe Is not in place. You have not committed this kind of Um, we also call this principle another term that you might have heard about. It's called lax enforcement lax enforcement An employer who is guilty of lax enforcement cannot take action against an employee And we win a lot of cases on lax enforcement In particular in two situations That I see it One is when a new company a new lawyer takes over a facility Company's sold a new manager comes in a new owner comes in When that new owner or new manager comes in he goes over the he starts he takes a look at what the What how rules are being enforced in the workplace and he's upset He he realizes that there are several rules or important concepts Principles that are not being enforced in the workplace lateness absenteeism Following all procedures lockout rules whatever it is safety rules so constantly He determines as a new employer. He's going to do what? He's going to he's going to write the ship. He's going to fix everything in one fell swoop and from now on I'm in charge every rule on the handbook is going to be enforced 100 In that situation employees are caught up in a net. They're pulled in there. They're penalized. They're punished In a situation where they had good reason to believe the rule Was not in place the rule had not been Had not been enforced for a significant period of time several months at least And consequently it was it was reasonable for that employee To believe the rule was wiped out erased off the books The second time I see this Big a big problem with this principle is when an employee Has submitted some violations or some bad work Safety violations and perhaps has signed a last chance agreement A last chance agreement is a document between the Union the worker and management The employer has enough evidence. He thinks or she thinks to find the worker but agrees to hold back To give this employee a second chance for And to as long as the employee does not commit any further violations of Of company policies and perhaps That might be for a period of time of six months or one year or sometimes two years And sometimes we we sign these last chance agreement because we have no other choice Because we know the employer has enough evidence to sustain a discharge So now the employee comes back to work having signed a last chance agreement Well to some supervisors, that's the equivalent of coming back to what on the employee's back A target a bullseye The supervisors in the shop look at that employer and they know that they can get this employee. They can they can Force him out. They can fire him for the most minute smallest violation of any company rule That's how they read the last chance agreement so consequently They come come down on that worker and they take action against that worker thinking they're going to be able to sustain a discharge However, in that situation, they might oftentimes pick a rule that has not been enforced an old rule The rule that's dead the rule that no one pays attention to and they're going to apply that to that worker If they're going to fire that worker they're going to be a hero to management Well, we'll win that case because that's a situation of lax enforcement that worker is guilty that employee was guilty of lax enforcement It's not fair in any way to punish that worker providing a rule that has not been enforced How do you win a lax enforcement case? What do you have to prove? two things mainly One you need to prove that there are widespread violations on the rule in the shop Not one violation or one person or two people but widespread five, 10, 15, 20 second you have to prove that the employer Was aware of those violations Employer saw the violations observed the violations that was told about the violations And then three you have to establish that no action was taken because of those violations And that's three three points that you need to prove one widespread violations two no action taken and three Two the employer was aware and three no action How do you prove widespread violations by in the workforce? Well, this is a little tricky Because to prove that to an arbitrator to some neutral who's coming in doesn't it's not in the shop It's not familiar with the shop to prove to this arbitrator that have been widespread violations Take that rule leaving the premises without Notice of or permission How do you prove to the arbitrator that hundreds of workers or scores of workers have been doing this over the last year or two years? The only way real way is for somebody to use take a stand And to either say I observed the violations. I saw my fellow employees doing this Or two For someone to take the stand and say I committed those violations I committed those same violations. I did it right under the nose of my foreman He said nothing to me and in a sense admitting your own misconduct or In a situation where you are describing the misconduct of other workers It's a little touching Because those workers those other workers may be a little concerned that you are bringing their name into somebody else's case And you are exposing the fact that they also violated it will maybe even more times than this worker What can you say to those workers that would prevent them from from being really upset with you and the union? well To answer that we might draw their attention to another principle of just cause under the due process requirement Which says that employers must take action promptly after the discovery of misconduct so What that means is that if you take the stand at an arbitration And you describe misconduct that occurred six months a year ago Can the employer now say wow? I that's new to me call those workers in interview them interrogate them get them to admit that they Left the premises without permission or whatever it was and then take action Well, the answer is no that would be a violation of due process Because you're taking action against a worker for what that worker did six months ago Ten months ago a year ago that violated due process So in a sense as we can say that when we bring your name up in this operation when we point out that Other workers including you or other workers have committed the same violation. We are not putting you at risk Because the employer knows that he can't act against you Because he would be violating due process and we'll win that case and you will win that case But if you're having your contract A clause that requires the employer to take action Within x number of days From the day that the employer discovers in this condom and some unions have a 10-day clause Employee must take action within 10 days five days 10 days two weeks, whatever Of discovering that the employee Violated a rule of regulation. That's great. I hope that everybody can get that kind of language And you know that kind of language that obviously If we were to go to an operation and present evidence that Other workers violated a rule six months ago three months ago. They're safe We have we have perfect contract language Now it's also true that when you Go to a arbitration and or go to the employer in the agreements process And you inform the employer that other employees have been violating a rule without penalty It is possible that the employer will react to that By informing you that well, okay, you got me on this Uh, I'll put that worker back to work because Uh, you have established that that we have lacked discipline But I will issue a rule tomorrow And I will notify those that the workforce that's now on this rule will be enforced 100 percent So for example, suppose you have a rule that breaks are 15 minutes The workers have been taken 15 or 20 minutes Now a worker is punished for that Is brought in for punishment. Maybe he's on a last chance agreement and consequently he's They got that bullseye on his back. He's brought in and we bring in his defense We bring out the fact that workers have been taken 15 or 20 minutes over and over for the last six months last year well It is likely that in that situation that the employer is going to say All right, you win this case But I will issue a notice on the bulletin board tomorrow that any person who exceeds 10 minutes by even The smallest amount will be subject to significant discipline from now on this could happen Now when that happens, of course, the rest of the workers they turn against the union They may say you to save a worker one worker a you have cost us all a The benefit of non enforcement of a rule that we've been shorted so you need to take that into account and In this situation is why you do not make a lax enforcement argument in some situations to avoid Getting the rest of the department or the work was Legitimate On the other hand If you are defending a worker who has been discharged has been discharged Providing a lax and forced rule Unit of situation you your job in the union you have to do we talk about discharge We have a high duty to represent people who have discharged 100 percent Making all possible arguments Even if it might lead to some discomfort or some upset by some of the In the case of a discharge I think we have to make the argument of lax enforcement and then take the consequences To take that truth from what I've seen you make the argument the employer posed a notice for now on All breaks will be enforced at 10 minutes Two weeks later. He's back to the old the old policy 20 minutes to 15 minutes 20 minutes So it's not as hard as you think All right, that's Okay, again, I would just say a couple people are saying there's still a lot of feedback So, um, I don't know what we should do, but maybe just try to be still I think I'll How about if I bring the sound down a little bit like that? Let's try that. Is that better? It sounds good for now to on my end at least By the way, let's go back on lax enforcement one more one more point to me Number three Um So the question comes up. Okay. The employer has not enforced a rule Um Can that mean that the employer is stuck? Because he didn't enforce a rule for two years or five years he can't Decide to enforce it And the answer is no that's not true An employer is allowed to reset a rule that has not been enforced He resets the rule or and I use the masculine here. I'm comfortable doing that, but it's Clumsy to keep saying he and she I'll try to do both He can we and he can she can reset the rule by Announcing to the workforce that from now on the rule will be enforced if the employer posts that notice The employer is allowed to enforce the rule even though the rule had not been enforced and we cannot make a lax enforcement defense However, what I've seen is within as I said earlier within a few weeks or a couple of months the employer will be back to where he was Uh, and then at that point we're back to if we can make it once again We knew our lax enforcement arguments. Let's move on to the next slide Due process Are we unsubstantial proof? No due process number three due process still number three. Okay Yeah, all right due process Is a very important aspect of just cause All arbitrators or just about every arbitrator would agree that part of just cause is due process What is due process? It's a difficult somewhat ambiguous term, but it means a fair procedure Handling a case in a fair way fair procedures In the industrial world we have due process in the courts and civil courts and constitutional due process, but in the workplace due process comes down to three or four points one It requires an employer to conduct an interview or to hold a hearing before making a decision to impose discipline To take action without a hearing or without an interview Violates due process the discipline is tainted And the and the discipline has to be reduced or eliminated second The employer must take action promptly and we've discussed that That is he must if he's going to take action He's got to do it within a week of two weeks or three weeks of discovering the misconduct You third three the employer must assess charges precisely notice the issue of notice of discipline Which is which describes the charges precisely And four once assessed discipline may not be increased and we'll get to that last point. That's a very interesting point because another turn another way of Defining that last sentence is something called double jeopardy which a lot of people are confused about Well, let's start out with the most important aspect of due process Which is the need to conduct an interview or to hold a hearing before making a decision to impose discipline In other words Employers even when the employer has evidence of misconduct. He has a witness. He has a letter. He has a phone call He sees it himself Can he just call you in Hand you a discharge notice and send you on your way Can you call you at home and said we know what happened today? There was a major accident You lost a lot of product Patient was was Was in need of treatment We know you're responsible. You're fired To tend to act in this way is a violation of due process because the employer is taking action Before you have been brought in and given a fair opportunity to give what your side of the story Now sometimes employers say this is a ridiculous requirement In many cases. I know exactly what happened I have several witnesses to what occurred Why are you saying to me that I did something wrong because I didn't bring the employee in for an interview or have a mini hearing Before I took made my decision And there's some logic to it. I mean take a case where an employee punches a supervisor in the nose Okay employee the employee in the middle of the work on the work floor during work during work time There's an argument between an employer and employee The employee loses loses it and smacks the supervisor in the nose and the supervisor has to get medical attention It's an open and shut case We know what happened because when it happened it could be there's probably two or three witnesses Who saw exactly what happened? There's no dispute as to what happened Even the worker doesn't deny that he hit his supervisor in the nose Consequently, why do I have to hold a hearing? This is the employer's argument to you at the grievance at the step two step three grievance meeting What is your response? Your response is yes, you do know what happened. We're not disputing what happened You know what happened But that is not all you need to know to this to determine what is the proper penalty in the case To determine the proper penalty in a case you need to know not only what happened, but why it happened You don't know why it happened. All you know is that this worker Struck his supervisor. There may have there may be reasons for that action that explained What happened now? There's nothing the employee can say or show that gets him completely off the hook You strike your supervisor. You're gonna have some level of punishment But you you may be able to show facts that explain that That make you less responsible than it looks for what happened less guilty than it looks Less in need of a discharge. In other words, do you have to be discharged? You may not be as guilty as it looks. You may be a person who lost it momentarily It's something which you should not have done, but there was a reason why it happened Uh, there was there was a lot almost a logical reason why it happened and and constantly this must be taken into account There may have been misconduct on the part of the supervisor that precipitated your reaction If that's true, that's called an extenuating circumstance You may have a medical condition that For which You which caused you to lose control of your decision-making abilities In which case you are You are at fault because you should be taking the proper medicines to avoid that but you're not guilty of the same type of aggression or assault that the employer assumed at first so We make the point to the employer that you need to conduct an interview In all discipline cases. There's no even when you are absolutely certain of what happened um Now in a due process case when you prove due process to an arbitrator You don't necessarily expect that he's going to reinstate the employee With full back pay. In other words, he's going to say well, you didn't have your interview Consequently, I'm going to wipe everything out And make you completely whole no because in many of these cases in most of these cases, perhaps You committed some type of misconduct It's just that the employer acted abruptly acted without consideration of of your rights as a to give your side of the story And in those situations what you what most arbitrators will do is reduce the penalty So if we have a discharge for striking a supervisor in the example we discussed We would be we would probably be happy And we would expect not to have the employee reinstate with back pay. He punched the supervisor in the nose But we would hope that your arbitrator would Would change the discharge to what a suspension a short suspension sure one day five days one week two weeks But more likely a long suspension Eight weeks 10 weeks Even six months in some cases In that situation have you have you you consider that you've lost the case You have a guy who is discharged for striking a supervisor You've got him reinstated He's got a let's say not a six month suspension, but let's say a one month 30 day suspension That's a severe suspension. That's a that's very difficult for the employee to to live through But that doesn't necessarily mean that you've lost the case. So you haven't done a good thing You've kept you've helped that employee to keep keep his job Um And that's the most important thing and in those cases I I would categorize that as a win for the union It's also true that in many of these cases even during the period of suspension The employee can file for unemployment benefits and we're very successful at the unemployment office when it comes to suspensions getting employees Benefits for suspensions and that's a whole other story The last point on due process, I'm going to skip the requirement to Take action promptly we've covered that I'm going to skip the requirement to list charges precisely But the last point is interesting once assessed discipline may not be increased. What are we getting at here? We're getting at a situation where a supervisor imposes a penalty on a worker A five day suspension a one day suspension and then Goes back to his office or her office thinks about it Makes a couple of phone calls speaks to somebody in human relations and realizes that That penalty was much too lenient That perhaps they were influenced by the fact that they liked that worker or whatever Calls that worker back in that day or the next day explains that I was too easy on you. I did not take into account the fact that you have prior misconducts. So consequently, I'm going to have to change that One day suspension to a 30 day suspension Well, sometimes they might say we're going to change the 30 day suspension to a discharge In other words, they've increased the penalty based on reconsideration We call this double jeopardy and that is accepted definition of double jeopardy in the workplace double jeopardy outside the workplace such as In the criminal courts Is a is a different question a different way of looking at things in the workplace double jeopardy means imposing one level of discipline reconsidering And imposing a much higher penalty That is a violation of just courts. We win a lot of cases on that On double jeopardy. Let me give you a couple of examples a bus driver is driving his her bus And uh, she hits she comes to an intersection. She hits the brakes too hard The passengers are thrown forward one passenger in particular hits her head against a column And there's a little blood She complains of course to the to the bus company. The work was called in He admits what happened The company says well, this is very serious. You are negligent in the way you break not only were you negligent You caused injury to a customer You're going to be given a 30 day suspension. That's our highest penalty second to discharge in this workplace Okay The worker serves begins to serve his or her suspension her suspension Two weeks later. What happens? The customer dies from the blow suffers a hematoma blood clot and dies Well, now the worker was called back in and the employer says, uh, well this case has changed We thought you had caused us a light accident to a One of our customers turns out you killed the customer This this is uh, you know, we have lawsuits now going to come at us from the family for Causing the death of of an individual through negligence It's a bit the the press is making a tremendous case about this in the in the town I I cannot keep you in this situation. You killed a customer I'm going to have to let you go Well, there's a logic to that this I mean you killed the customer, you know That's about as bad as you can do But uh from the point of view of labor relations, we're going to win that case in most You know, we're not going to win it in every arbitrator because there's such a subjectivity among arbitrators One arbitrator may do x another operator may do y so I can't guarantee that you've been among We have a solid argument to make we get a veteran arbitrator Not a brand new arbitrator a veteran arbitrator who has studied labor relations We're studied the rules of just cause And has understood the precedence of those rules We get that kind of an arbitrator. We're going to have we're probably going to get a reinstated Because double jeopardy was violated that worker was given a penalty and that worker Understood that penalty to be a final penalty when you gave that penalty the 30 day Suspension you didn't say this is tentative or this is temporary You didn't say we're giving you a 30 day and then we'll look at the case down the line You said we're giving you a 30 day suspension and that's that And you went and and you prepared to go back to work and you would have gone back to work So consequently is it's unreasonable to You had a reasonable expectation that that was a final decision And we should win that case and get that worker reinstated another case Their work workers are playing cars during a break And they are playing poker and they're betting money on their game. They have money on the table Okay Supervisor walks into the break room and sees money on the table This is a violation of company rule 26. No gambling on the premises supervisor You know goes nuts screams a little bit and tells uh and reads the riot act to those five employees and tells them If they ever do this again, they are out the door The workers say okay, and they go back to work At five o'clock those workers are called in And the supervisor says, you know, I've thought about this. I've talked to human relations. I was too easy on you I'm giving you each five day suspensions. This is a serious rule. We've had problems with this rule in the past and uh I should have given you a suspension to begin with We're going to fight that on the grounds of double jeopardy because once again Did we given a penalty? We understood reasonably that that was a final penalty Um consequently you are not able to increase that penalty just because you review Employees records or look at the history of that of how that rule has been applied What does this mean practicality practically practically when you have a An employee and you're investigating agreements. Somebody comes to you I Suggest that you ask this worker. Okay. You have you've been given a Some discipline for unsafe behavior. Let's say you are a forklift operator You're not supposed to run the forklift backwards. It's only supposed to run it forwards You want it for you want it backwards? They see you and uh They give you a five a five day suspension and a three day suspension Okay, the case looks bad. But now I ask you I'm your steward. I'm investigating just between you and me Has this ever happened before? Oh, well, no first. I ask you this when your supervisor saw you running the forklift backward Did he say or anything to you at the time did he chew you out? Do you reprimand you on the shop floor? Because if he did if he reprimanded you on the shop floor And then later imposed The suspension we have an argument for double jeopardy Because you were chewed on the shop floor and you went back to work You thought you had a reasonable belief that the discipline was over. It was final Consequently it's double jeopardy to increase that discipline now. What can an employer do who who uh, does that mean that? An employer always has to hit you with the most heavy possible discipline It cannot possibly go through a deliberation process. No You can be Observed engaging in misconduct. You can be reprimanded You can even be sent home But and it but and the employer can preserve its rights how by saying to you i'm sending you home I want you to come in tomorrow. We're going to discuss it further. We're going to discuss it with human relations We'll see what happens We're going to review the case again tomorrow now when When the employer does that Okay, you you understand you should understand that this case is not over This case is ongoing. This investigation is ongoing And it may lead to a harsher penalty a higher penalty It would not be reasonable for you to cover the conclusion at that point that you have received final discipline and that's what Kicks off double jeopardy. You have to have a reasonable belief that you have been given final discipline so Let's consider that whenever we investigate cases has What is the history of the discipline in in this particular case? Let's go to the next slide Now we have to move faster substantial proof Charges must be proven by substantial incredible evidence Well, this is a big topic What is good evidence? What's bad evidence? What is sufficient evidence? I can say this The short circuit the discussion employer must have credible evidence Employers may not take action based on rumor Based based on implication based on guesswork. They must have witnesses and they must have They must have documents that can prove their case One of the biggest things you're going to do as a steward in investigating a case Is to demand all the employer's evidence And the the state of the labor law the labor board is very bad right now in washington the nlrb in particular They've issued a lot of decisions against unions In many areas of our union rights The one area where they have not taken a lot of active action on is union right to information We pretty much have the same rights to information now as we had before trump I recommend that a union submit a written request for information in every discipline grievance And we do that at this immediately at the same time that we file the grievance. We either attach It's called an RFR request for information We attach it to the grievance or we submit it within a couple of days Within that request for information. We are demanding All of the employer's evidence We want we want in particular Any the names of any witnesses who the employer is aware of or who the employer interviewed If the employer conducted interviews, we want to have copies all notes taken during that interview If the employer obtained a statement from a witness, we want a copy of that state If the employer has photographs That relate to the misconduct we want copies of those photographs If he has voice any kind of voice documentation, we want copies of those If the employer commissioned an investigator An investigation before he or she took action We want a copy of the investigators report If the employer has received a recommendation from the investigator or some other party Recommending particular type of action Suspension or discharge or whatever it is we want a copy of the recommendation We are entitled to all of those records And we'll get those through the request for information And if we don't get it from the employer immediately, we'll take those Request to the NLRB in the form of an unfair labor practice and we'll probably do pretty well On those charges Now one of the other points I want to skip a little bit on proof A topic that comes up a lot in union grievances, which is hearsay hearsay hearsay is a form of proof Is a weak form of proof. It's not the best form of proof The best form of proof is eyewitness proof The second best form of proof is what's called circumstantial evidence Where you have evidence which implicates or implies A implies B that's circumstantial not as good as eyewitness, but not not not not worthless The third type of proof is hearsay proof hearsay proof is evidence against a worker Which comes from an outside party But a party who is not willing to subject himself or herself to cross examination Who is not willing to testify in person at a grievance meeting or at arbitration hearsay is anonymous Evidence it's not fair evidence. Why isn't it fair because we're not given an ability To confront the accuser To find out why the accuser made this charge What did the accuser really see? Did the accuser have something to gain by making this charge? Is there a history between the accuser and the accuser? We have that's gone when you when an employer tries to rely on hearsay Here's how arbitrators deal with hearsay They don't completely exclude it They do allow employers to put it in if the employer has other substantial Incredible evidence they will allow an employer to put in hearsay To to to support A case which is proven otherwise But if all the evidence an employer has Against their worker is hearsay and there is no firsthand evidence and there is no Evidence, then most arbitrators will not sustain a significant penalty a discharge or a long suspension so example A worker Refuses an order by his or her supervisor disobeys an order The supervisor of course is upset fills out an incident report goes to human relations And pull worker is brought in he did not he he's questioned. He denies it. He qualifies what happened. He says that's not really what happened Nevertheless they fire him for insubordination The case is then grieved by the union and goes nowhere The union then decides to take the case to arbitration When we get to arbitration What happens Well, all the employer has to do to win the case is do what call in the supervisor to testify the supervisor's first-hand witness I gave an order the worker Thumb just knows that And did not fulfill the order in any way that's enough to win the case for the employer However, what may happen often happens is that for one reason or another the supervisor does not show up to the arbitration Why is that? could be many reasons Supervisor could have been fired in the meantime happens a lot Supervisor could have quit happens a lot Supervisor could have retired after all we're talking sometimes about a year between Agreements and an arbitration supervisor has retired And in some other cases and I used to make a joke about it But I won't but in some cases the supervisor dies in the interim In any case the supervisor is not there to give first-hand evidence What does the employer do? He doesn't give up Because he wants to win this case So nine out of ten the employer will submit will try this will submit the the incident report that the supervisor filled out When the activity occurred it's all written down signed by the supervisor. It's an incident report It may even be notarized. Some employers might even ask their supervisors to notarize Well, now the employer says i'm introducing in the absence of the supervisor died Who's who's living outside the state? I offered this Incident report as evidence of what happened What will happen in that case this the arbitrator will take the document He will accept it. We used a lot of people think he won't take it He'll accept it. He'll as an exhibit. He'll market accept it. It goes into the record But in the end when it comes time to write the decision That's the only evidence against that worker Is the incident report and since that incident report is pure hearsay Out of court statement by someone who is not making themselves available for cross examination In that situation a decent arbitrator Or a veteran arbitrator will not sustain a discharge You might have your sanity You might do it to something lesser. He will not sustain a discharge or even a long suspension Now if the worker is given a one-day suspension for this activity, he'll probably let it go by Is it you know, it's hearsay, but it's not that big a deal I'm going to I'm going to sustain the the one-day suspension or even a five-day suspension But if we're talking about a 30-day suspension or a six-month suspension or a discharge based on hearsay Most good arbitrators will not allow that to happen so This doesn't necessarily mean however that in all of these cases you win the case. Why is that? Because when you come in because when that incident occurred They call you in for your disciplinary interview. Don't forget under the due process They have to have an disciplinary interview otherwise the case is flawed on that ground So you're most employers know that now and they do bring people in now when you come in They're going to ask you. Did you disobey the order from the supervisor? If the worker admits that he disobeyed the order at the disciplinary interview And then tries to justify why he did it That worker is sunk because now when we go to arbitration the supervisor may not show up or doesn't show up But the employer has other substantial incredible evidence. What is that the admission the confession by the worker at the undisputed confession at the disciplinary interview that he in fact did refuse the direct order of the employer. We're going to lose that case Now think about that when you're representing someone at a disciplinary interview And the evidence against that worker you know is hearsay and moreover You are pretty sure that the accuser is not going to come to any arbitration that the union might go to because you know that Maybe it's an anonymous accuser. Let's say that you work for a utility company and you go in and you check people's meters And anonymous letter comes to the company accusing you as the meter of being rude or even worse harassing the customer Okay, you're now called in for the interview with your steward And they ask you did you do this? If you assure that the customer was going to come to the hearing You might answer the question and you you you might decide i'm going to have to admit that I did it and try to explain why Try to show remorse because remorse is a very valuable legal concept We will have a cases based on remorse. We'll put that aside But if you knew that this is anonymous letter that came to the company an anonymous letter There's no way in hell that person is going to show up at an arbitration the company doesn't even know who wrote the letter You know that the evidence against you is is hearsay Consequently you have enough you are you you are in a different position and they ask you did you do it? What do you you're the steward what will you advise your? Member to say in that situation think about it. I'll leave it at that for right now. Let's move to the next couple of slides all right equal treatment we Equal treatment has read it unless justified by a valid distinction Employee may not assess a considerably stronger penalty against one employee Then it assessed against another known to have committed the same or a substantially similar offense This is a very important principle. We win a lot of cases Based on lack of equal treatment. Why is that? because When you tweet people differently and you give one employee A lenient penalty and another employee a more severe penalty for the same basic misconduct What's another name for that favoritism? Favoritism goes against the very core of just cause Almost all arbitrators react viscerally to the when favoritism Presents its face during a hearing. It's wrong. It's unfair it's racist it's it's a number of things and Consequently when we are able to show favoritism unfair treatment without cause We can we oftentimes will have the sympathy of the arbitrator when we prove failure to Another name for equaled for winning equal treatment is called disparate treatment So that's another term which I use disparate treatment is what happens when you treat people differently when we prove disparate treatment We would expect that the arbitrator if he's hearing the case Would reduce the penalty. He's not going to wipe out the penalty He's going to reduce your penalty or the worker's penalty to the same level as the worker who got the special treatment Favoritism exists throughout all workplaces Even though employers constantly preach to their supervisory staff Against favoritism treat people the same they know that unions win these cases and get back pay some many times and They're constantly explaining to supervisors. You can't do that. You've got to treat people apply the same levels of punishment for the same Violations nonetheless nonetheless Favoritism is rampant throughout almost every workplace nonetheless almost every supervisor commits favoritism Why is that? A lot of factors The worker may turn out to be someone who's the best worker in the shop the other worker Consequently, they're not going to fire that worker For a rule violation for a relatively minor rule violation or even for a severe rule violation They're going to give that worker a second chance or even a third chance It may be that that worker Is a friend of the supervisor it may be that that worker is a relative of the supervisor It may be that that worker is I think that that worker has been informing on the union for 10 years They're not going to fire that worker when He commits he violates a company rule. They're going to give that worker a more favorable a lenient rule We need to bring that out if we can show that another worker got a lenient Penalty a much more lenient penalty without A valid distinction because notice if you have the rule in front of you that an employer can justify difference in treatment by a so-called valid distinction Without a valid distinction favoritism really goes to the core of due process So By the way, what is a valid distinction? What would justify giving one worker a one day suspension or a written warning and another worker a two week suspension? What would what what could possibly justify for the same this kind of let's say you a driver And you have an accident from negligence Your another driver has this almost the same accident from negligence you give one worker A written warning and you give another worker a three-day suspension. What could justify that? Well, there are some things that could justify it For example, if the worker who got the lenient penalty the lower penalty If that worker had been there for 40 years And the worker who we're representing has only been there for a week. That's a valid distinction between two workers A distinction that justifies a difference in penalty It could be that The worker who got the lenient Treatment Has a perfect record has never had any prior discipline and it's also a great employee in every respect Well, that's a valid distinction if the worker we're representing as a checkered record And uh, it's not really that cooperative A worker it may be that the worker who got a lenient Penalty came came to the disciplinary interview And confessed the admitted to the to the to the misconduct And apologized for the misconduct Through himself on the mercy of the employer promised That he would never repeat the misconduct and on top of all that Agree to go into any kind of counseling program the employer would advise Because this employee really wants to stay in the workplace to stay in this job And loves the job and loves the boss whatever and whatever So this employee has shown honest remorse The employee that we're representing He came to the disciplinary interview and pretty much gave the finger to the to the employer did not admit anything denied everything No, I didn't leave the premises No, I didn't violate the rule. No, no, no Denied everything denied. He was at work that day. So he did and we he there's no remorse here There's no regret There's no willingness to go into a program That is a valid distinction between two employees in that situation It's not favoritism to give one worker low penalty and another worker a higher penalty In order to win a case on equal treatment and we win a lot of them we have to do research a lot of research We have to go into the history of the workplace and discover At least one other employee Who committed the same type of misconduct? Got a much lesser penalty Without a valid distinction That takes work For one thing we need to get the names of all other employees who were disciplined in any respect for that type of misconduct Then we have to look at their personnel files to see what the penalty was Then we have to go through the personnel file to see if there was anything good in the file Or anything bad in the file that would in some way differentiate them from the employee that we're representing We uh We have to submit requests for information That demand the names of all other workers who were disciplined or how Who were investigated for the same offense not only employees, but former employees There may be a former employee who Was given a second chance or a third chance Our guy wasn't even given a second chance. That's this for a treatment if we can get get bring out the facts So equal treatment requires investigation requests for information and work, but it pays off it pays off Let's go to the next one number six Progressive penalties. Well, we talked a little bit about this earlier in the evening But uh, I just say this Some employees say well, we don't have to observe progressive discipline because it's not in our contract Other contracts have it written into the contract not this contract Consequently we can apply any level of discipline on any level of offense And uh, some unions buy that But uh, if we take that case up if we challenge that Uh, I in most cases we'll find that the arbitrators Don't don't agree with that They read progressive discipline into the words just cause you have the words just cause that just the same is writing progressive discipline of progressive penalties into your contract Progressive penalties mean that we start out with a low penalty and we move to a middle penalty And then we move to a severe penalty and then we move to discharge basically a four step process Allowing the employer in some cases to skip a step when the misconduct is severe Um, let's go on to the next one mitigating extenuating and aggravating circumstances Um, discipline is expected must be proportional to the gravity of the offense Taking into account any mitigating extenuating or aggravating circumstances So this we went a lot of cases on this element also Not so much the first part of the definition, but the second part mitigating extenuating circumstances Many times employers don't take into account All of the mitigating and extenuating circumstances and they move immediately to penalty and they don't consider Uh factors that Should be considered when determining whether it's necessary to impose a severe penalty After all, what is the purpose of penalties in the industry in the workplace? It's not the same as I said earlier as penalties in the criminal system in the criminal system We give a penalty on a criminal to punish him for what he did That's a big part of the reason for a penalty and for the size of the penalty Punishment is not a notion that is it got any credence in the workplace The purpose of workplace penalties is as much as possible to to to help the employee correct what he Understand what he or she did and correct their misconduct and return to work as a valuable and Employee who observes the basic rules of the workplace Rehabilitation is basic to punishment in the workplace Consequently, if there's any factor which suggests that this employee Could be a good employee could come back and could Could learn from his experience and could be a better employee And and could avoid Any repetition of what happened those are factors which need to be considered by the employer Before he determines whether he has to fire this work because firing somebody is something that firing Something you do when you have no other choice You cannot possibly rehabilitate that worker. He's hopeless. He is committed the same thing over and over and over He shows no regret no remorse That worker is hopeless. Okay, but other workers aren't don't fall into those categories. All right. What are Mitigating and extenuating circumstances There are several in each category Extend you let's talk about mitigating. Let's talk about excuse me. Let's talk about mitigating circumstances first mitigating circumstances Aspects of the employee or his or her background that suggests that that employee Does not need a severe punishment to correct what happened What would be a mitigating circumstance that would that would credibly make that suggestion? Well, one of them is long service a worker has worked for an employer for 10 15 20 years Has shown a loyalty to the workplace a dependency on the workplace And that worker can be expected To correct his or her misconduct Doesn't need to have a big penalty doesn't have to have you suspended To realize that they have to avoid repetition of the misconduct In a long-term employee may only need a written warrant that may be sufficient to to to Let a long-term employee know that they have to make a few changes And certainly at the most a one-day suspension if if if if if necessary What else what else a good record obviously an employee has a very good record That's an extenuating sort of that's a mitigating circumstance that suggests that that employee Takes pride in his or her work and will improve The fact that an employee has been disciplined in the past is not necessarily terrible If an employee has received minor discipline in the past and has not repeated that misconduct in the future that is four years ago An employee was rude to a customer the librarian Was rude to a customer. Okay, and the customer complained And the worker was called in and was given a written warning or a one-day suspension It's been four years that librarian has never repeated that rudeness has never come up again What does that show that shows that that worker can learn From a light penalty can learn from a reminder to learn from a minor Slap on the wrist when that worker gets a slap on the wrist that worker reacts favorably correctly Consequently, those are mitigating circumstances that show we don't have to come down hard on this employee What about extenuating circumstances extenuating circumstances are circumstances that come from the show that part of the reason this these events occurred Came from outside the employee. That is they were the results They were caused by other people namely management supervisors or co-employees We have a situation where yes an employee probably did something wrong The part of the reason for that was that the supervisor provoked him The supervisor was harassing him the supervisor was increasing his workload unfairly The supervisor Or another one the supervisor had failed to workers brought in For violating rules turns out the supervisor did not train that worker Or train that worker very poorly Explain the the the procedure is very poorly That's an extenuating circumstance where some of the blame goes on management If some of the blame goes on management Then the penalty that you might otherwise impose that should be lowered should be lowered because it's not all the fault of the worker The last category is in this list is aggravating circumstances We don't like aggravating circumstances aggravating circumstances allow an employer to impose a harsher penalty than would otherwise be Expected because of the employee's poor record or poor attitude And let me just finish by just saying a one or two words about attitude You can have the best case in the world on paper Then you can have the best case on the rule on documents and On cross-examination But if you have an employee if you're representing an employee who has a miserable attitude Who comes to the grievance session or to the arbitration and is and is has a miserable attitude Scornful attitude Very Hateful attitude whatever you want however you want to describe it. We're going to lose the case We're going to lose the case even if we have the best evidence in the world Arbitrators are human beings They feel this worker doesn't care about the workplace is not going to be a good employee They're not going to put someone back for two days later is going to do the same thing again or something worse So a lot of the work that we do when we prepare workers for grievance sessions And for arbitrations is grooming them to have a pleasant and a honest Approach and presentation In terms of how they dress what they say how they approach things the politeness to the arbitrator to the whatever And you might say well, you're selling out if you do that I think I think any lawyer would do that for his client And you are basically lawyers for your clients in these cases. So that finishes my presentation. We have We've gone over the 90 minute 80 minute mark. So I'm going to take a few questions though if anybody has any more strength So let me just check the q&a for now Um, and I encourage if people do want to ask questions that they try to not be so specific Try to make it something that could be useful to everyone on the call um So somebody asked what about zero tolerance policies at work such as workplace violence or sexual harassment violations Were first offenses termination and the worker was denied just caused by not getting a chance to tell their story Well, because we have a problem with zero tolerance policies ztp We hate them. We don't we don't like them because they essentially Sends an employee to capital punishment on the first offense um employers love them And uh, you know throw them around as much as they can Opposition in the union in most cases of the zero tolerance policies violate the country zero tolerance policies Allow an employer to fire a worker on the first offense And uh Just cause on the other hand requires The employer to take into account all factors Before making a decision not to make an automatic decision and just cause requires uh A progressive discipline approach With the fact understanding that in some cases Uh, there are cases where progressive discipline doesn't fit. We're an employee You know assaults another another worker co-worker and badly injures that co-worker You're gonna fire probably get fired on the first offense. There's probably nothing that could be that would justify so if an employer You know wants to issue a zero tolerance policy for a egregious assault with a weapon on another employee I don't know that we would make a big fuss about that but if a zero tolerance policy is published which imposes discharge for things like gross negligence for things like insubordination For things like safety violations or lockout violations things which are not self evidently egregious So egregious that there's no way you could expect that employee to stay in the shop Well, then we we we we we we we object and when we go to arbitration we argue to be operated This zero tolerance policy violates the just cause It's a violation of the contract Unfortunately, some unions have agreed to zero tolerance policies They agreed to it even in the contract. I have seen contracts with the contract list the following activities as justifying immediate discharge and the union has signed that contract Well, that's very upsetting. We should never a union should never never Agree to Immediate discharge it violates every concept of just cause At least they should never agree to it except in the most narrow circumstances murder substantial theft arson Etc. But as far as a broader zero tolerance policy, we should never agree if and If we've agreed then we're in big trouble because once we agree Almost every arbitrator will say you agree to it. Uh, it doesn't make sense. I don't agree with it myself Uh, it violates basic concepts of just cause but you agreed to it But if we didn't agree to it, if it's just a unilateral determination What For immediate discharge we we fight that tooth and nail. Okay. So there's another question um That says How do you feel it's from Zachary? How do you feel arbitrators will handle discharge cases surrounded coven 19 related policy violations? Is there anything that we should be looking for? Well, uh, of course, I think this comes would come under a topic Um, generally it would come up under the topic of refusing refusing unsafe work Um And there's a chapter in the handbook called refusing unsafe work. We we we've long fought for acceptance of the notion that under some circumstances an employee can refuse a job assignment If that job assignment requires him to do something which could cause serious illness or injury And if that job assignment is outside of the normal requirements of the job So the good job which are involved a risk of serious injury all the time I mean, that's the nature of the job a lot of so many construction work If you aren't working on the 20th floor, you're at risk of serious injury every minute of the day That doesn't mean you can refuse to work on the 20th floor. That's a customary part of your job but uh, it is well accepted that An employee can refuse a job assignment that could lead to serious Injury or death and it's outside of the normal risk of the job The question of course is proving that that an assignment to work in a workplace Which uh, where you could get cove in 19. Is that really outside of the normal risks of the job I think in some cases it could be but you would probably have to show one Several other cases of cove in 19 by other employees. Okay You'd have to show some evidence that those cases arrived In the workplace and not the normal daily life Because if they arrived in no normal daily life that would change the risk level You would have to show that the employee is not doing nearly what it could do to protect the work protect you in the workplace I haven't seen decisions. There's going to be decisions. There's going to be arbitration decisions on this issue I haven't seen them yet. Maybe they have been some and if they have been I would love to read them, but um You know if you take a look at that chapter In the handbook, it'll give you some ideas and it'll give you some arbitration decisions that you could cite as as precedent For refusals to work in an unsafe workplace So i'm going to combine the next couple questions that I see so is it the question is is it appropriate for an employee to be Or can an employee be disciplined for non-work related or off-site? arguments or altercations with a supervisor and the second part of the question is what role does social media play in all this Well, uh, that's a common question Can the employer discipline me for what I did outside of work? And there's a host of possible scenarios The general rule the general rule is no is that what you do outside of work is your business and not the employers That it only becomes the business of the employer if what you do affects the workplace Affects the ability of the employee to operate the workplace to make money in the workplace Then maybe yes Then if what if you if you commit some type of misconduct outside of work and it affects the workplace in a negative way Yes, then discipline can be oh It's called that's called a nexus any x us if the employer can establish a nexus between your calendar And what happened at the workplace and I'll just give you one example a worker I don't know if you remember but several years ago. There was a Period where workers were streaking were people people were like to streak in the Outside of their homes and go outside you go in the streets take off their clothes and run through the neighborhood Without any clothes on it's called streaking. I don't think it happens as much now life is more boring now, but There was a worker in one workplace who made a bet with another worker that he was uh As soon as the bell rang He was going to leave work take off his clothes and went up and down the street in front of the factory Uh without any clothes on he was going to streak in front of the workplace and he did and he was filed Uh And I went to grievance and then I went to arbitration And the arbitrator reinstated him. He says I don't approve of what you did. It was silly It was a bad taste. It was you know, some people were bothered by it probably But it didn't really harm the workplace It wasn't written. There was no discussion about it in the local newspapers At least if there was a discussion, it didn't name the name of the company. It didn't hurt the company's business or lose any business It didn't when you when you come back to work the next day It doesn't affect how you're going to be able to do your job So he reinstated that worker. I think with back pay But there are examples where a worker goes to a bar and the boss walks in one of his supervisors And the worker is pissed off and has a future money and gets into a fight And knocks the supervisor out Now that's an off cut off That's that's misconduct outside of the workplace However, does it have an effect in the workplace? Yes, because when you come back to work Are you going to be able to work with that supervisor? Is that supervisor going to be able to work with you? Probably not it's going to interfere with your As a reliable effective employee in that situation Uh an arbitrator may very well sustain a discharge So it all depends on how it affects the Uh, there's a question. Is a union member's right to fair representation violated when a union representative chooses to represent only Uh, the one employee and completely disregards another. How should that be handled? Well, certainly, uh a union If there's a several employees who have committed a the same type of misconduct roughly the same time Uh, the union should probably represent them all that doesn't mean that they represent them in the same way They should certainly file agreements as any worker who is disciplined even when their worker is in the wrong The union should if the worker wants you to file agreements file agreements I can hardly imagine a reason not not to file agreements Agreement just means we have a discussion about it at the first step. It doesn't commit the union to anything and for a union not to even file agreements I think that that would be a Chancey that worker could could file charges after all when a union doesn't represent someone fairly That work that that employee has the opportunity File legal charges against the union either at the federal labor board if we're talking about the private sector Or at the state labor board if we're talking about a public employer union And that's kind of messy for the union may even cost money after the lawyer so, uh We need to do something on behalf of all the employees, but We might take if we take one case one worker's case to arbitration or the third step Doesn't mean we have to take everybody's case to arbitration or the third step It's hard to it's hard to it's hard to uh, we have to be careful. I guess I could put it out We can't be blasé about it because for one thing the national labor relations board on the national level is showing a big interest And facilitating charges against unions. This is one of the big Trump labor board one of their big contributions We we we're not going to go against employers. We're taking them off the hook on many levels But if you come in here and show me a union that didn't file agreements when it should have filed agreements I'm going to charge that union and I'm going to haul them in here put them in legal proceedings forced them to spend $10,000 for a lawyer. I'm going to mess them up. So this is the attitude of the NLRB at this point And we don't want to give them we don't want to help them in any way do that Do you want to take a couple more? All right. Oh, it's a speaker speaker. Okay I'm going to just combine I'm just going to throw a couple at you because they're kind of short One of them is a due process question. What if the employer keeps Keep saying we are still investigating the matter at what point is the promptness not being followed? And the other question is in my internal labor study class We learned that no employer the employer is not entitled to the union's notes for evidence, which is true All right. Well, the first one is a little more general employer is investigating some type of misconduct harassment safety violation and just never And keeps investigating it keeps investigating the worker is nervous of course during this whole time. What's going to happen? And demands that I want to make a decision. Let me know what you're going to do Is there a rule about it? No, no, no, I don't I'm not sure there is I mean You can say to the employer you're you know labor relations concepts Expect you to take action promptly after you learn you're expected to conduct your investigation in the expeditious manner Just if it's you know, I don't know if a month is is is too long but six months. That's crazy and You know, and if you if you come down and pose any discipline at this point I'm going to raise this in the grievance process and in the arbitration and you're going to lose the case I mean, this is the way you could talk to an employer, but the other question wishes one The other question Yeah, the other question was You know, basically a question about like does the employer have uh, is the employer entitled or allowed to see the notes in the evidence of the union? That's a good question. That's a real good question because a lot, you know, a lot of times unions are a little bamboozled they get We have been for years hitting the employers with detail and long requests for information And anybody who reads any of my books is doing that every day So employers are upset about that and one of the ways they react Is by hitting us With equally long and detailed requests for information for records that we really don't want to give them So we have to know what the dividing line is and there is a dividing line The dividing line is that One party cannot demand from the other party Documents that were prepared Because of pending litigation or future litigation, so if you prepare a document In anticipation of litigation That's called a privilege document. You don't have to turn it over So let's let's take a look at the at the typical agreements an employee is discharged for poor attitude All right And the employer has a file this thick Of all the cases where the employee exhibited poor attitude We demand that file we want to see that file Um, are we entitled to that file? Yes, that file is relevant to the decision Both as to whether the discipline should have been imposed and how much discipline The employer Is in a tough position, you know, he says i'm not giving it to you It was prepared in anticipation of litigation and there's a rule about that Well as it turns out That's not true That document was prepared as part of daily business life To determine what type of penalty to impose on that employee litigation was not on top On top the the main issue here And when employers do investigations all the time they investigate employees They look at up and they look at what happened and then they determine the penalty There's no anticipation of litigation Consequently, we're entitled to all those records Now you have the union's grievance file Which the union begins to prepare after the union After the member files agreements or soon after soon before agreements is filed and soon after So we have a grievance file where we have our interview notes Our thoughts Some documents which we've accumulated. We don't want to give that to the employer And our our reason is that we prepared the grievance file in anticipation That would be used in a president presented at a grievance meeting or an arbitration That is litigation in the industrial world Litigation in the industrial world includes grievance hearings and arbitrations We prepared our grievance file in anticipation of litigation That is arguments about the case at grievance or arbitration Consequently The labor law precedent allows us to withhold it from you. We don't have to give it to you On the other hand, you still have to give us your grievance file Because you prepared that before grievance was filed And you prepared your grievance file as part of your determination of what penalty to impose So in that sense, we have the winning hand When it comes to those two arguments You ready for a couple more? Sure How long because the fireworks has the fireworks hasn't started here yet. And So consequently, it's a little quiet out here right now In about in about 10 minutes. We're going to have enough fireworks out there and you wouldn't hear me So everywhere um Somebody asks, uh, does the skelly here does the skelly hearing count as the Investigatory hearing uh meeting or does an investigation meeting need to occur before the skelly hearing? Well, of course, he did That term skelly hearing Is it our term of art and as I understand it, uh, and I never represented police And I guess I never will represent police, but uh In the police in the police world, uh, there are certain concepts That relate to when a policeman can be a police officer can be interrogated by internal affairs and in what way and in some situations Some there are some legal cases in different states which allow police in some situation police officers to refuse to answer questions And that relates to this skelly hearing So as far as I can go with it, I don't know the answer to all those skelly questions I never hailed it myself and it's a little it's quite confusing So you'll have to go to someone who's a specialist specialist in Of which I don't know anybody No, I do I do know somebody Okay Uh Somebody says can a union negotiate their wine garden rights away if the contract mentions that for Investigatory meetings the steward will attend can be employer block the union staff representative from doing the investigatory meeting Ah Well, I think generally the answer is yes a union can bargain away any of its rights For instance, so we all know We have a right to strike but we bargain almost every union is bargaining it away There's a no strike clause in almost every union contract We are the court the board and the court say we're allowed to bargain our Tell it to bargain away any of our rights one of our rights is to have stewards that have Representatives at wine garden meetings and to pick the representative So can we can we limit ourselves by language in the contract? Yes we can even We can probably even agree to a contract clause that says that Employee will not Does not have to bring in the union steward even if the worker requested I I guess we could agree to that So the answer is yes Oh, it's no good. It's wrong terrible If the contract does not include a grievance procedure can information still be requested that goes beyond mandatory topics of bargaining well well Generally speaking Our rights to information are very broad, but they are restricted to what's called the mandatory subject of bargaining Those things which directly relate to workers Terms and conditions of employment I mean for example, if you work at general motors and they are deciding whether to build an electric car That's not a mandatory subject of bargaining. The company has the right to determine the product we want to make So even if we file the grievance that you should be building more electric cars And then we ask for information about that decision making of course the employer wouldn't have to give it to us It's not a mandatory subject of bargaining. We're only allowed to demand information about mandatory subject of bargaining or other items that directly Effect employees terms and conditions of employment So, um, I don't know if I answered the question. I forgot what the question was um I think that answered the Good question Um in cases of member versus member harassment racial sexual etc Does the union violate its duty of representation by demanding disciplinary action be taken against the harasser? Demand that the harasser be fired for example Yeah, or disciplined in any way by the employer I have to think about that one I mean in this climate in this climate when the board is fighting charges against unions willy nilly To the slightest degree of Conflict with their members Um, I have to think about it because we don't want to be put in that situation We don't want to be faced the possibility of Having to pay back paid that to that work to that that's that person who was fired because we asked for him to be fired So I have to think about it. It's not it's not It might be something that we have to be dance around We might not want to directly Require demand that I think we have to be very careful very careful Although I suppose that there could be extreme cases where we simply have no choice John whitelaw asks how does how does unilateral changes of conditions of employment go with the fair notice with the new nlrb That's a big question. It's not directly on discipline and discharge That really relates Mostly to an article. I just wrote the labor notes Just got published. I just got my copy of the magazine today's mail Although it has been posted on labor notes about a few weeks ago, but There's been a lot of changes and developments when it comes to midterm bargaining And unilateral changes and an area of the law which had been very favorable for unions under previous administrations Obama administration clinton administration even under many republican Administrations under the trump administration under the trumply report has been totally eviscerated And has been torn apart to the point where One of the board members who was in the minority The final democrat on the board basically threw up her hands and says we're back to 1935 We're back to the period before 1935 when employers had no restrictions on Making changes during the contract during the life of the contract. So it's a great in a tough situation. We have to hope that We get a new administration in washington and that whoever comes in appoints new nlrb board members Who will restore our midterm bargaining rights? But unfortunately, that's a law fairly long process. It's not something a new president can do The first day or even the first year It usually takes about two to three years for a new president Say say such as biden to be able to get three members of the five member nrb such that they could change or reverse policy so biden may come in 2020 He may he may not be able to get control of the nrb for three or more years So we may have to live with this It's a very bad situation But you free read my article. I give you a strategy I have tried to develop a strategy to overcome The latest changes committed by the nrb It's called shut the door on management's rights So several people are asking the same question, which is how do you handle an employer who won't have dialogue during the grievance meeting? They won't answer questions. They won't state their case They only say to us present your case and then they leave the room with no discussion Lots of people I mean if it happens once or twice there's not much we can do we just take We have the option of moving the case to the next stage and eventually going moving it to arbitration and you know Just bypassing everything an employer who completely Mistreats the grievance process and that can be done in many different ways He might take away authority from his representatives to settle grievances He might refuse to settle any grievances have it's just have a policy. I will not settle any grievances until arbitration So there's very there's a number of different arbitrary ways that an employer can destroy the grievance process When it gets to be very severe We could try to file an unfair labor practice at the nrb contending that the employer's Approached agreements is over the past six months shows a lack of good faith And it's in in in resolving grievances. There have been a couple of successful cases along those lines Where we have shown that the employer is trying to bankrupt the union Trying to force us to arbitrate every case taking away all authority from their people to resolve cases And we have won a couple of those cases, but by and large it's not it's not the type of misconduct that lends itself to resolution through the ulp mechanism I think direct action demands on the employer to to to you know The way we approach any other on the job problem direct confrontation with management on the job non-cooperation informational picketing boycotting of secondary targets such as customers These are the various tools that we can use on the job to put pressure on an employer to do right by the grievance process And that's another one of my books called No contract no peace also published Somebody asked when uh, when should we make a demand for information after receiving an investigators report or at the post investigative meeting before the discipline? when's the best time to ask well We know where your entirety information As soon as the employer Imposes the penalty so as soon as the employer poses a penalty the draw opens for information I think what you're asking about and I've thought a lot about this too is Can we get information before our discipline is The disciplinary decision is made in particular They call the employee in for a disciplinary investigation. It's going to be a two o'clock We know the subject. We know what it's about. So now we submit at this point a demand for records documents statements photographs That the employer has accumulated at this early stage before has taken any action I I I I don't think we'll get it. I don't think the board would order them to supply it. I think the board pretty much feels that This is pre disciplinary activity it jeopardizes the investigation and employer ought to have an opportunity to conduct an investigation make a decision and then employee the union can challenge it so I haven't seen successful cases where unions obtain information prior to the employer Making the disciplinary decision Although we're interested we're curious we're certainly curious but uh The curious is not enough to get to to get those records Do you want to take two more? Okay Are there privacy rights when requesting uh for substantial evidence who was interviewed and what they said during investigatory interviews? well, uh It depends generally. No generally the board board law lrb law has been that witnesses Uh, you give a statement to management They know that statement is going to be used in legal proceedings and grievances and arbitration saying they shouldn't be surprised if other people find out about it On the other hand, there are situations where an employee is very nervous about The union finding out that he gave a witness statement Uh, and it might be a situation where the person who is the target who the person who Who is going to be disciplined? Is a is a very angry person someone who has? Assaulted other workers. So you're afraid if you if you tell if you tell the union If he finds out that I gave a statement against him he'll ask me or he was rude to me or he he Solicited me or whatever that he's going to beat the crap out of me. If this is a legitimate concern on your part Then the board would say in that situation the employer can Assert a confidentiality interest in the witnesses name and in that situation Cance Has to well meet can meet with demand at the union bargain with it How can we release the information that you want namely the name? Without jeopardizing the worker who gave the statement Is there any way we can do it in such a way to protect the worker who gave the statement for example Instead of giving the name to the union in general We give it to one particular person or you may we give it to the union lawyer? Because we think the union lawyer won't disseminate it to the to the bargaining unit. So It's a mixed bag. That's all I could say sometimes. Yes, sometimes Okay There's a lot of questions about this So I'll just do this and this will be the last question If a person may have violated a rule from a long time ago or a long time ago, I guess But the employer just finds out about it Much later can they have uh, can they still discipline if you know, if there was no clear date Can they audit a worker's computer and and launch an investigation for something that was like maybe say a year or more ago That they just are now finding out about Well, theoretically, yes, I would say yes I mean the rule is that an employer must take action promptly after discovering this kind if employer discovers misconduct that occurred two years ago Because all of a sudden a worker comes in says two years ago that worker assaulted me in the elevator So I just the worker just learned about it today. Can he call that worker in and question him? Yes, if that worker admits what he did, can he punish that worker? Yes If there's other evidence, uh that occurred could can you punish? I would say yes Because he's taking action promptly. He's investigating promptly taking action promptly now Sometimes in these kinds of cases we win the case because there's a concept called stale evidence evidence That is presented to an arbitrator as to what happened. It's two years old three years old We argue a lot of times don't credit that evidence. It's just too old Too old too. It's happened so far Long ago we it's not fair to us. We can't go back and check it out We can't locate witnesses people have died We're talking about something that happened two years fivers in the past, but I would not say that an employee was totally barred from going back a year two years to impose discipline Uh concerning misconduct that he just becomes aware of If you say five years, I would say no, I can't imagine an employee going back five years and imposing discipline It's too long. It's stale All right. Well, thank you so much Robert for everything. I believe so many people Have given so much good feedback about how this is super useful to them both here and on facebook I'll remind people that we will share the slideshow with participants As well as the recording will be available online and this is a first of In a series and so we'll come back We'll be back with Robert on a host of other topics that he writes about grievance arbitration and labor law and strikes and things like that And I also encourage you all I put the link to the labor notes bookstore in the chat so that you can go directly To buy the intro to just cause book As well as others that are available that robert mentioned tonight on the call Good. I enjoyed it. You know, I'm in my Retirement I have more time than I used I used I usually have I enjoy having an opportunity to interact with people And I I uh, I just wish I could see all your faces Thank you so much. Have a good night everyone. Thank you