In the past two months, conferences were held in Los Angeles, Oakland and Miami Beach.  In this edition, we summarize three of the most interesting presentations.


Workplace Threats

The faculty could not agree on the penalty in a fairly routine or ordinary case.  The grievant was an 18-year employee.

The grievant told his supervisor:  "If you don't quit picking on me, you'll wish that you had never met me."

The context for this statement was the supervisor simply walking by the grievant's work station, and criticizing the grievant for not inspecting more of the job.  The grievant responded by saying that he was working as fast as he could.  The supervisor said that he was a better employee than that, and could do better.  This is when the grievant made the alleged threatening statement.

There were many more facts in the case, but we focus on just one aspect of the faculty's discussion.

In the actual case, the union advocate made several arguments at the hearing.  First, the grievant was an excellent worker, a point conceded by the company.  Second, there was no physical act so all of the words are subject to interpretation.  Third, the words are vague because the grievant could have (must have?) meant that he would file an EEOC charge, a grievance, or just let others know.

The company argued that the supervisor's version of events is more credible and while he did not fear for his safety, the words amounted to a threat of physical assault.  The company rule was clear:  "All employees shall not threaten or attempt to do bodily injury to others."

Management issued a 30-day suspension.

In three cities, the panel split:  8 arbitrators would uphold the 30 days, and 5 would reduce it to a 1-week suspension or less.

What was fascinating about the discussion was not the arbitrators' rationale for the penalty, but the comments about the threat.  These comments can be useful to advocates, who present a workplace threat case.


Arbitrator #1:  The grievant could have explained what he meant, just by referring to the EEOC.  He didn't and it became a promise of potential harm.  (Upheld the 30 days)

Arbitrator #2:  The air hangs heavy with a threat. (Upheld the 30-days)

Arbitrator #3:  In veiled threat cases, I look at the size of the individuals and whether the victim perceived it to be a threat.  (Reduced to 1-week)

Arbitrator #4:  The day is long gone, when veiled threats could be ignored.  We have entered an age of zero tolerance, and I can no longer give the grievant the benefit of the doubt.  (Upheld the 30 days)

There were many comments by the arbitrators on all of the facts in the case, and we cannot reprint them all in this space.  But we close with an insightful comment made by one of the five Arbitrators who voted to reduce the penalty:  "This case would never have gone to arbitration if management had selected a 5-day suspension.  And arbitrators know that."



The Penalty

Arbitrators often say that the penalty must be reasonable, or that the penalty must fall within the range of reasonableness.  Arbitrators who use the word, *range*, are giving the employer some flexibility.

But here are some other points that are just as important.

If half of the reasons for the discipline falls, so does half the penalty.  An example illustrates this point.  In this real case, the employer alleged that the grievant committed a felony and off-duty misconduct.  This was all true, except that the prosecutor charged out a felony and plea bargained the felony down to a misdemeanor.  By the time it got to the hearing, the only charge left was the off-duty misconduct.  Management argued that the citation of the felony was still there, but the arbitrators on the faculty took a very practical view.  The employer (a public agency) had a rule on commission of a felonies and a rule on unprofessional behavior, including off-duty misconduct.  The grievant was only convicted of a misdemeanor.  The only thing left was the off-duty misconduct, so the discharge must be reduced to a lesser penalty.  Some faculty explained that "half" of the penalty would be a short-term suspension.  

Choose one penalty and stick with it.  In this case, the supervisor gives the grievant a 1-day suspension.  A few days later, a higher-up manager rescinds the 1-day suspension and imposes a discharge.  The union cries double-jeopardy.  Technically, it is not double jeopardy because the grievant has not been tried twice for the same offense.  Instead, it is just a confused management structure.  Many arbitrators will only uphold the 1-day suspension because, if the supervisor had authority to issue it, that action is conclusive.  It is a rare case in which the higher-up's decision is upheld.

Consider a related example.  Assume the grievant had already served the 1-day suspension, and management now wants to reverse that decision, so it can discharge the grievant.  Management even insists on paying the grievant for his 1-day suspension, so they can essentially start over.  This does look like double-jeopardy.  But it's not necessary to impose or refer to this criminal law principle.  Management's do-over is simply a denial of due process (fundamental fairness).


Ask the same question, assuming the facts went the other way.

Lawyers use the analytical tool, all of the time.  If you change the facts to go the other way, would you still feel the same way?

Here are two examples in labor arbitration.

At the hearing, the management advocate wants to introduce evidence, usually in the form of a sworn affidavit, but could also be live testimony.  The evidence is that the grievant's co-workers got together, or on their individual accord, and decided they didn't want to work with the grievant after what he did (and for what he is now being discharged).

The management advocate feels strongly that this evidence is relevant because it goes to the issue of whether the grievant can be a productive employee.  One arbitrator calls a recess, and brings the advocates into the hall.  The arbitrator then asks the Management advocate:  If you had polled the grievant's co-workers and they voted to keep the grievant, would you have introduced this testimony?

Most management advocates stop there, and withdraw the evidence.  If not, the arbitrator tells the advocate that this is not a popularity contest, but a contract dispute as to whether the grievant violated the employer's rules and should be discharged under the just cause standard.

The next example is best explained through an actual case.  A social worker was charged with neglect of duty.  She essentially lost a file on her desk.  The file dealt with a foster child in the agency's care.  She had done everything she was supposed to do with this file, but it went missing for a month.

During that month, a terrible thing happened.  The child was killed by a non-relative.  There was nothing the social worker could have done to prevent the death, nor did the social worker do anything which even indirectly contributed to the circumstances surrounding the death.  Management gave the social worker a 1-day suspension for job neglect.

A few arbitrators on the panel upheld the discipline because it was minor and based sufficiently on the facts.  But the majority would not, because of the supervisor's answer to this question:

Would you have disciplined the social worker if the file had not been lost for 30 days?  The supervisor said no, and management's case fails.

In both of these examples, the arbitrators are saying:  Look at the case from the other evidentiary angle.  Try out the reverse or a companion example, and see if your argument is just as persuasive.



Upcoming Conferences

Seattle:  April 25, 2008
Chicago:  May 1-2, 2008
Las Vegas:  June 23-24, 2008
Washington DC:  July 24-25, 2008
Detroit:  August 14, 2008

Please check our website for the fall programs.