Defending Workers Against Discipline
Editor's note: The author is working on a new handbook on defending workers against discipline. Here are some excerpts.
Q. Can we submit a grievance for a nurse’s aide who resigned from work after her supervisor falsely accused her of patient abuse, threatened to discharge her, and suggested that she quit?
A. Yes. Under a theory called “constructive discharge,” a resignation extracted by duress or coercion is considered equivalent to a discharge.
Retracting a Resignation
Q. When a supervisor demoted a worker, the worker lost it and declared, “If that’s how you feel about me, I quit.” That night she called the union and said she had made a big mistake. Management says a quit is a quit. Can we grieve under the just cause standard?
A. Yes. An employee who quits her position because of emotional stress can retract the resignation if she gives prompt notice by telephone, fax, or email and if the employer will suffer no significant harm by permitting the employee to return.
Applying Rules Off-Duty
Q. Does a work rule prohibiting the use, sale, or possession of controlled drugs apply when an employee is off-duty?
A. Generally, no. Company rules do not apply to off-duty conduct unless expressly stated. Even if the rule says it applies off-duty, the union can challenge the rule as unreasonable if the prohibited conduct does not have a demonstrably adverse impact on the workplace.
Q. A worker failed a drug test. Can the employer fire him without an interview?
A. No. Under due process principles, the employer must give the employee a chance to explain why he was taking the banned substance and why he should not be punished.
Q. An employee threatened another worker. Two hours later, his supervisor said, “If you do that again, you will be in a bag of trouble.” The next day, human relations called the worker in and suspended him for a week. Can we defend on the grounds of double jeopardy?
A. Yes. A worker cannot be disciplined twice for the same conduct. The first notice was a verbal reprimand. The worker viewed it as final and continued working. The matter should have ended there.
Q. Personnel fired a driver after an anonymous customer sent a letter containing graphic descriptions of sexual misconduct. Do we have a chance at arbitration?
A. Yes. An employer cannot justify a discharge solely on the basis of hearsay. If the driver consistently denies the charges, and the complainant does not appear to testify, an arbitrator is likely to order reinstatement.
Snake in the Truck
Q. A driver drove his truck into a guard rail. He claimed he saw a large snake on the passenger seat and grabbed it with both hands to avoid being bitten. Impossible case?
A. No. When a discharge is based on circumstantial evidence (no witnesses), the evidence must eliminate reasonable explanations advanced by the employee. If the driver gave the snake explanation from the get-go, and stayed with it consistently, he should prevail at arbitration.
Lie Detector Test
Q. An employee suspected of theft declined to take a polygraph test. Can the employer cite her refusal as evidence of guilt?
A. No. Arbitrators disfavor polygraph tests. They almost never hold refusals against employees.
Q. The company discharged a five-year worker for sleeping on the job. Two years ago, a worker with 20 years’ seniority was given a one-day suspension for the same offense. Does the difference in service time justify the difference in penalties?
A. No. Differences in seniority do not justify wide divergences in penalties.
Dog Ate It
Q. Management says it lost the paperwork that explains why it issued a lenient penalty two years ago. Is this sufficient to avoid a finding of disparate treatment?
A. No. An employer cannot escape a finding of disparate treatment by asserting that paperwork has been lost or misplaced.
Pick Your Poison
Q. The company fired a worker who was seen smoking marijuana in her car. Six months earlier a worker who drank beer on the job was given a five-day suspension. Isn’t this disparate treatment?
A. Yes. There is no acceptable basis for imposing substantially harsher penalties on employees who commit drug offenses than on employees who commit similar alcohol offenses.
Erasing Disparate Treatment
Q. If an employer suspends an employee for sleeping on the job, is it barred from firing future offenders?
A. No. An employer can erase past leniency by making a clear and unequivocal announcement to the workforce that it intends to discharge employees for all such offenses in the future.
Q. Our contract has a four-step progressive discipline policy. An employee with 20 years’ service committed four offenses and was discharged. But in an earlier case, management gave a 22-year worker with four offenses another chance. Can we raise disparate treatment?
A. Yes. The employer surrendered its right to insist on a lockstep application of the progressive discipline provision. If mitigating circumstances are considered for one employee, they must be considered for all.
Q. The company manual says any violations of safety policies “shall result in termination.” Is this penalty binding in arbitration?
A. No. Arbitrators frequently rule that zero-tolerance policies are trumped by contractual just-cause clauses.
Robert Schwartz is the author of several labor law handbooks published by Work Rights Press and available from Labor Notes, including The Legal Rights of Union Stewards.