Arbitrating Discipline and Discharge Cases - Chapter 7 - Fundamentals of Labor Arbitration
Rocco M. Scanza and Jay E. Grenig both serve on the American Arbitration Association's labor panel.
Rocco M. Scanza is an attorney, arbitrator and mediator of labor and employment disputes. He is also the executive director of Cornell University's Scheinman Institute on Conflict Resolution, where he teaches courses in workplace alternative dispute resolution. Mr. Scanza was formerly a national vice president at the American Arbitration Association. He graduated from Queens College in New York City and Loyola Law School of Los Angeles. He lives and works in Ithaca, N.Y.
Jay E. Grenig is a professor of law at Marquette University Law School. He has served as an arbitrator or mediator in over 2,000 labor and employment disputes. A member of the National Academy of Arbitrators, the American Law Institute, and the Order of the Coif, Mr. Grenig is also a fellow of the College of Labor and Employment Lawyers. He formerly chaired the Labor and Employment Law Section of the Association of American Law Schools and served as a consultant to the National Commission on Employment Policy. He has written or co-written numerous books and articles.
Originally from Fundamentals of Labor Arbitration
The traditional rule is that a contract of employment for an unspecified term is terminable at will by either party. This means that either the employee or the employer can end the employment relationship any time they please for any reason not prohibited by law or for no cause at all.
Most collective bargaining agreements reject employment-at-will. They provide that the employer may discipline or discharge employees only for “just cause,” “reasonable cause,” “proper cause,” or “for cause.” Under the just cause standard, an arbitrator must decide whether the facts support the employer’s accusation that the employee committed the offense. Second, the arbitrator must determine whether the employee was accorded due process. Third, the arbitrator must decide whether the employee’s offense is sufficient cause for the disciplinary action taken by the employer.
7:02 JUST CAUSE CLAUSES
The principle of just cause normally arises from a clause in the collective bargaining agreement. In some jurisdictions, just cause has been found in the implied covenant of good faith and fair dealing, or from statutory protections—particularly those applicable to public employees. In some situations, just cause may be implied from past practice, disciplinary policies, or statements in employment handbooks. In collective bargaining agreements with a just cause provision, the clause may take two forms: It could be a simple general statement, such as, “The employer may discipline or discharge an employee only for just cause.” Alternatively, the cause could list misconduct for which an employee can be disciplined or discharged. For example, it could say, “The parties may agree in their collective bargaining agreement that an employee may be disciplined for just cause only for specific, enumerated offenses.”
7:02 Just Cause Clauses
7:03 Seven Tests of Just Cause
7:04 Other Views of the Just Cause Standard
7:05 Progressive Discipline
7:06 Proof of Misconduct
7:07 Review of Penalty
7:08 Due Process
7:09 Public Policy