Pocket Guide to Just Cause: Discipline and Discharge Arbitration (1st ed., 2010)
$20.00
By Bonnie Bogue and Katherine Thomson
1st edition, 2010
1909 in stock
Description
Cause or just cause for discipline or discharge is a requirement in most collective bargaining contracts and public sector personnel or civil service rules. But how is cause defined? How do hearing officers and arbitrators assess whether discipline or discharge should be upheld? How should representatives for employers, unions, or employees prepare and present a disciplinary case?
The answers are in this Guide, which provides:
- A description of the “tests” that arbitrators apply to decide whether an employer had just cause for discipline or discharge;
- An explanation of how statutory law and collective bargaining agreements may limit the arbitrator’s traditional discretion;
- Advice to practitioners on how to evaluate a case, decide whether to settle a case, and if not, prepare for a hearing;
- Information on common remedies with an explanation of how statutory rights affect remedial awards;
- A description of the various statutory schemes for disciplinary hearings that govern the different sectors of public employment in California.
The guide is generally applicable to both arbitrations and civil service disciplinary hearings. Designed for use by labor relations representatives, union representatives, and lawyers, it provides a breadth and depth of coverage not available elsewhere at such an affordable price.
Table of Contents
Contents
I. Introduction | 1 |
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A. “Just Cause” — The Origin of the Principle | 1 |
1. “Just Cause” — The Definition | 1 |
Appellate review standard. | 2 |
De novo review standard. | 2 |
2. Employment At Will vs. Negotiated Just Cause | 3 |
B. Merit Systems vs. Negotiated Just Cause | 4 |
Local government. | 6 |
State. | 6 |
Schools and colleges. | 7 |
Universities. | 7 |
C. Non-Negotiated Disciplinary Appeal Procedures | 7 |
1. State Civil Service Employees | 8 |
2. California State University Employees | 9 |
3. University of California Employees | 11 |
Staff employees. | 11 |
Academic employees. | 12 |
4. Community College Employees | 13 |
Academic employees. | 13 |
Classified employees. | 14 |
5. K-12 Public School District Employees | 16 |
Permanent certificated employees. | 17 |
Probationary certificated employees. | 18 |
6. Local Government Employees | 18 |
7. Trial Court Employees | 20 |
II. Just Cause — The Tests | 21 |
A. Elements of Just Cause | 21 |
B. Factors Arbitrators Use to Determine Proof of Misconduct | 22 |
1. Reasonableness of the Rule or Standard of Conduct | 23 |
2. Notice to the Employee of the Rule | 23 |
3. Notice of the Disciplinary Consequences | 24 |
4. Notice of the Charges | 24 |
5. Timely Action on the Charges | 25 |
6. Adequate and Fair Investigation | 25 |
7. Opportunity to Respond to the Charges | 26 |
8. Proof of the Charged Misconduct | 26 |
9. Equal Treatment for Similar Misconduct | 27 |
10. Double Jeopardy | 28 |
C. Factors Arbitrators Use to Determine Just Cause for the Level of Discipline | 28 |
1. Progressive Discipline | 29 |
2. Seriousness of the Misconduct | 29 |
3. Similar Penalty for Similar Misconduct | 30 |
4. Length of Service | 30 |
5. Prior Disciplinary Record | 31 |
6. The Employer’s Degree of Fault | 31 |
7. Other Mitigating or Aggravating Circumstances | 32 |
8. Post-Discharge Misconduct | 32 |
D. Negotiated Limits on Arbitral Discretion | 33 |
1. Limits on Arbitrator-Ordered Remedies | 33 |
2. No-Fault Attendance Policies | 33 |
3. Limits on Evaluating Employee Performance | 34 |
4. Last Chance Agreements | 34 |
E . External Law — Effect on the Arbitrator’s Discretion | 35 |
1. Authority to Apply External Law | 36 |
2. External Law Limits on Arbitrator’s Discretion | 37 |
III. Before Arbitration | 40 |
A. Predisciplinary Due Process | 40 |
B. Filing the Grievance | 43 |
C. Processing the Grievance | 44 |
D. How to Avoid Taking the Grievance to Arbitration | 45 |
1. Settling the Case | 45 |
2. Mediating the Grievance | 46 |
3. Last-Chance Agreements | 47 |
E . Deciding Whether to Arbitrate | 48 |
1. The Union’s Decision to Arbitrate | 48 |
Evaluating strengths and weaknesses. | 48 |
Effect on the bargaining unit. | 49 |
Duty of fair representation. | 49 |
2. The Employer’s Decision to Arbitrate | 50 |
Evaluating strengths and weaknesses. | 51 |
F. Costs of Arbitration | 51 |
G . Preparing for Arbitration | 52 |
1. Developing a Theory of the Case | 52 |
2. Witnesses and Documentary Evidence | 53 |
3. Surprise and After-Acquired Evidence | 54 |
IV. The Hearing | 56 |
A. Hearing Procedures | 56 |
1. Advocates | 57 |
2. The Record | 57 |
3. Statement of the Issue | 57 |
4. Opening Statements | 57 |
5. Stipulation | 58 |
6. Witnesses | 58 |
7. Documentary Evidence | 58 |
B. The Employer’s Case | 59 |
C. The Employee’s Defense | 59 |
D. Evidence | 60 |
1. Relevanc | 61 |
2. Foundation | 61 |
3. Hearsay | 61 |
4. Opinions and Speculation | 62 |
5. Leading Questions | 63 |
6. Offers of Settlement | 63 |
7. Privileged Communications | 63 |
8. Privacy and Medical and Personnel Files | 64 |
E. Closing Arguments | 65 |
F. Award or Decision | 65 |
V. Remedies in Discipline and Discharge Cases | 66 |
A. Types of Remedies Arbitrators Award | 67 |
1. Rescind Discipline and Reinstate With Full Back Pay | 67 |
2. Rescind Discipline and Reinstate With Partial Back Pay | 68 |
3. Rescind Discipline and Reinstate With No Back Pay | 69 |
4. Award Back Pay Without Reinstatement | 69 |
5. Reinstate With Conditions or Last-Chance Agreement | 70 |
6. Reinstate With Disciplinary Transfer or Demotion | 70 |
B. Award of Interest, Costs, and Damages | 71 |
1. Interest on Back Pay | 71 |
2. Damages | 72 |
3. Attorney’s Fees and Costs | 72 |
C. The Effect of External Law on Remedies | 73 |
1. Procedural Due Process Rights | 73 |
2. Unlawful Harassment | 74 |
3. Reasonable Accommodation — Disability | 75 |
4. Reasonable Accommodation — Religion | 75 |
5. Family and Medical Leave Act | 76 |
6. Drug and Alcohol Issues | 77 |
D. Arbitrator’s Post-Award Jurisdiction over Remedy | 77 |
VI. Evidentiary and Remedy Issues for Certain Conduct | 79 |
A. Drug and Alcohol Offenses | 79 |
B. Workplace Violence | 82 |
C. Sexual Harassment | 83 |
D. Absenteeism | 84 |
E. Discrimination or Reprisal for Union Activity | 86 |
F. Insubordination | 87 |
G. Off-Duty Misconduct | 88 |
H. Dishonesty, Theft, and Falsification | 88 |
I. Refusal to Cooperate in Investigation or Arbitration | 89 |
1. Union Representation | 90 |
2. Self-Incrimination Defense | 90 |
VII. Table of Cases | 92 |
VIII. Bibliography | 96 |
IX. Index | 99 |
Additional information
Weight | 0.625 lbs |
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Dimensions | 10 × 6 × 0.5 in |
Institute for Research on Labor and Employment, UC Berkeley
California's number one resource for employer/employee relations