It is often said that in the United States, employers may fire their workers for any reason, or no reason at all. However, in a unionized workplace, that power is restricted because most collective bargaining agreements (CBAs) contain a “just cause” discipline provision that is enforceable through arbitration. There are many aspects of just cause, such as the requirement for the employer to prove that the worker violated the work rule at issue, the necessity of treating similarly situated employees equally, and the use of progressive discipline. This article will focus on a sometimes-overlooked just cause component, but one that can lead to the reversal of discipline if violated — industrial due process. At base, due process is the requirement to conduct a fair and impartial investigation prior to imposing discipline.
At the outset, it is important to note that like most aspects of just cause, the employer bears the burden of proving it has afforded due process rights to a disciplined employee. For this reason, employers must be proactive in ensuring a just cause-compliant investigation, or risk reversal at arbitration. Union counsel should be aware of the various due process requirements to fairly and adequately represent bargaining unit members.
According to the oft-cited arbitrator Carol Daugherty's formative “Seven Tests” of just cause, prior to issuing discipline, the employer must “make an effort to discover whether the employee did in fact violate or disobey a rule or order of management.” Perhaps most importantly, the employer must notify the worker of the specific charges it is leveling, and give them a meaningful opportunity to be heard and give their side of the story. Most labor arbitrators also impose on the employer the obligation to gather the accounts of other witnesses with knowledge of the alleged misconduct. In addition to basic fairness, this allows some issues to be resolved short of discipline and the costly use of the grievance and arbitration process. For example, if the majority of witnesses agree that the employee did not commit the alleged act, the employer may choose to forgo discipline.
In conducting an investigation, the employer should keep an open mind about the guilt or innocence of the employee. As stated by one arbitrator, “[d]ue process during the investigation means management’s mind is open, that its position on the important question of guilt or innocence is not polarized.” In one case in Massachusetts, well-known arbitrator James Cooper reversed a discharge where he concluded that no matter what the employee said in the investigative meeting, she was going to be fired. 2011 AAA LEXIS 389.
Additionally, as noted in the treatise The Common Law of the Workplace, a full and fair investigation constitutes a “more-than-perfunctory” factual inquiry. For example, arbitrators have held that an employer lacks just cause where the employer relies upon obviously flawed evidence, and fails to interview key witnesses. In one case, an arbitrator found an employer’s investigation to be flawed because it consisted of little more than a collection of summarized interviews, and the employer did not engage in any analysis of the consistency or content of the interviews, or the credibility of the parties. In another case, an arbitrator ruled there was no just cause where the employer confused the chronology of events, took undated and incorrectly dated statements from witnesses, did not take a written statement from its key witness, and did not conduct a lengthy investigative meeting with the employee.
As with all elements of just cause, many arbitrators will remedy a lack of due process by ordering reinstatement and backpay, regardless of whether the employee committed the charged offense. This is somewhat akin to due process in the criminal context — e.g., the dismissal of criminal charges where the police failed to afford a criminal suspect their right to counsel. In the words of one arbitrator, a failure of due process “is viewed by arbitrators as a fatal defect mandating dismissal of charges and reinstatement of the employee.”
However, some arbitrators disagree on whether a due process violation alone necessitates vacatur of discipline, or whether the union must demonstrate prejudice. One arbitrator viewed the due process violation alone as causing prejudice, stating, “the Grievant was not afforded proper due process and therefore any sort of determination of his guilt under such investigatory conditions is without merit.” On the other end of the spectrum, some arbitrators will uphold discipline in the face of a due process defect if convinced that the employee committed the underlying misconduct — for example, if the employee admits to the misconduct.
In addition to these contract-based rights, it is important for unions and employers to remember the National Labor Relations Act (NLRA). While the NLRA does not explicitly require due process, it does require employers to bargain with unions prior to making changes to work rules related to discipline. For example, if the employer maintained a policy allowing employees to watch video surveillance of an incident before being interviewed, but wished to change or eliminate that right, it would have to negotiate that with the employees’ union. Also, a perfunctory or nonexistent investigation could be evidence of a pretextual disciplinary decision in an unfair labor practice case alleging anti-union retaliation. Additionally, during investigative meetings where discipline could result, under the Weingarten decision, employees have the right to union representation.
Under arbitral precedent and the NLRA, employers ignore workers’ due process rights at their peril. In sum, the following is a helpful list for maintaining a workplace that complies with industrial due process:
Conduct an investigation prior to imposing discipline.
Notify the accused worker of the charges prior to any interview.
Interview all witnesses to the alleged misconduct.
Keep an open mind.
Document witness statements.
Afford union representation to accused employees.
Negotiate with the union prior to making any changes to disciplinary or investigative policies or practices.
Dennis M. Coyne has practiced labor law exclusively on behalf of unions since joining McDonald Lamond Canzoneri in 2012. As part of his practice, he serves as counsel to numerous labor unions for collective bargaining, arbitrations, and unfair labor practice charges at the Massachusetts Department of Labor Relations and National Labor Relations Board. Coyne routinely helps unions achieve victories through settlement or litigation in various types of grievance arbitrations, such as discharge, suspension, discrimination, and complicated contract interpretation matters.