Introduction

Some of the most commonly adjudicated issues in workplace arbitration are situations in which employees have been subjected to disciplinary action (e.g., fired or suspended).  To understand how arbitrators approach disciplinary cases, it is helpful to distinguish between cases involving organized (i.e., unionized) workplaces and cases where no collective bargaining agreement exists in the workplace.  This separation is necessary because collective bargaining agreements almost universally contain clauses specifying that employers can only discipline employees for ‘just cause.” A just cause standard affords employees certain protections and generally assures that they cannot be disciplined without notice, satisfactory proof of misconduct, and fair treatment. In a non-represented situation workers have much more limited opportunities to challenge employer-imposed discipline. Unrepresented workers generally are considered to be at-will employees and are usually subject to termination at the discretion of their employers, except for reasons prohibited by law.

Discipline and Discharge Under Collective Bargaining Agreements

It has been noted many times that protection from unjust treatment in the workplace may be the main motivation and benefit of working in a unionized setting. This protection is the result of a commonly bargained clause in contracts that recognizes management’s right to run the business and to discipline or discharge employees but also provides that those actions must be for “just cause.”

“Just cause” is typically not defined in labor agreements. Collective bargaining contracts may have specific provisions stating that certain “cardinal offenses” such as theft will be considered just cause and, thus, grounds for immediate termination without warning. The broader meaning of “just cause,” however, can be gleaned from tens of thousands arbitration awards throughout the economy. Many authors and publications have attempted to condense those decisions into a definition, formula, or theory of just cause.

In its simplest form, just cause is a matter of fairness. First and foremost, there must be satisfactory proof that the employee engaged in the act upon which the discipline is based. For example, if the proof is insufficient that the employee committed a violation, discipline cannot stand. Arbitrators rarely apply a quantum of proof as stringent as the criminal standard of proof beyond a reasonable doubt, opting instead for a lesser standard such as requiring the employer to prove misconduct by clear and convincing evidence or by a preponderance of evidence.

If the evidence is sufficient to demonstrate that the employee is “guilty” of the conduct alleged, then the next question, generally speaking, relates to whether the penalty is for just cause. Disciplinary penalties can range from verbal warnings to termination. A variety of factors can influence whether the penalty imposed by the employer was proper, depending on the circumstances of each case. An analysis of just cause discipline can include the following questions:

• Is the rule reasonable?
• Was the rule clear about the employer’s expectations and the consequences of violating it?
• Did the employee have notice of the rule?
• Was the penalty reasonably related to the seriousness of the offense?
• Was the penalty consistent with discipline to other employees in similar circumstances?
• Is the violation mitigated by or aggravated by the past record of the employee?

“At Will” Employees

In terms of broad legal rights, at-will employees are subject to termination at any time for any reason (good, bad, or otherwise), except where the reason for discharge is inconsistent with a statutory right such as freedom from discrimination based on race or gender. The “at will” concept is based on the notion that absent from a contract, an employee is free to end an employment relationship at any time. Thus, employers are viewed as having the corresponding right.

With increasing frequency, some employers require an employee as a pre-condition of employment to agree to submit any statutory claim about her or his employment to arbitration rather than pursuing that claim through administrative agencies or litigation.

These pre-dispute agreements recently have garnered much attention in legal circles and court actions. With reference to their fairness, critics view them as mandatory rather than voluntary. For example, legislation has been introduced in some states to outlaw “mandatory arbitration.”

Apart from employer-sponsored (or required) arbitration, employees who are terminated are typically left to challenge the action on the basis of a statutory right before an agency and/or through litigation. To address situations in which no statutory claim is advanced, however, some courts on a state-by-state basis have entertained and created exceptions to the at-will doctrine.