Arbitrators' Decision-Making: Evaluating Workplace Discipline
/The Balancing Act of Disciplinary Review
When reviewing workplace discipline cases where some misconduct has been established, arbitrators face the challenge of determining whether the employer's chosen penalty fits the offense. This analysis involves weighing numerous factors to ensure that discipline serves its proper purpose—to correct behavior rather than merely punish, except in the most serious cases.
Evaluating Past Behavior and Employment History
One of the most influential factors in arbitration decisions is the employee's work history. Long-tenured employees with previously unblemished records often receive more favorable consideration than those with short service or problematic histories.
As one prominent arbitrator noted in a recent case: "Although it does not guarantee a job forever, lengthy good service is normally considered a mitigating factor in a discharge case." The importance of this consideration stems from the recognition that a long record of good service demonstrates an employee's capability to meet expectations and suggests that misconduct may be an aberration rather than a pattern.
However, arbitrators increasingly make distinctions about when length of service deserves weight. For instance, in cases involving moral turpitude, harassment, or deliberate safety violations, some arbitrators give less weight to employment longevity. The reasoning holds that certain behaviors are so fundamentally incompatible with continued employment that even decades of service may not mitigate their severity.
When considering past disciplinary records, arbitrators typically examine whether previous incidents are relevant to the current case and how recently they occurred. Many labor agreements establish specific timeframes after which prior discipline can no longer be considered—often ranging from one to three years. Once this timeframe has passed, these prior incidents should be treated as if they never occurred.
Procedural Fairness and Due Process
Industrial due process remains a cornerstone of disciplinary review. Arbitrators frequently overturn discipline—even when misconduct is clear—if employers fail to provide fundamental procedural protections.
These protections typically include:
Conducting timely, thorough, and impartial investigations
Providing specific notice of allegations before making disciplinary decisions
Allowing employees to present their side of the story
Providing access to evidence being used against them
Offering appropriate representation during investigatory meetings
The importance of these procedural protections cannot be overstated. Discipline administered without proper investigation or opportunity for defense undermines not only workplace justice but also labor relations more broadly.
When employers violate an employee's right to union representation during investigatory meetings (known as Weingarten rights), arbitrators often take corrective action. While the National Labor Relations Board typically issues "cease and desist" orders rather than reinstatement when such violations occur, arbitrators frequently order more substantial remedies, including reinstatement or reduced penalties.
Consistency of Rule Enforcement
Arbitrators place significant emphasis on whether workplace rules have been consistently communicated and enforced. Employees must know both the rules and potential consequences of breaking them before being held accountable.
When employers have previously overlooked similar violations, arbitrators often find that employees could reasonably believe such conduct was permitted. This principle applies even to conduct that might seem obviously inappropriate. As one arbitrator explained: "Where rules are not enforced but violations thereof are accepted by management, employees are lulled into believing that such rules are not serious."
Employers can reinstate strict enforcement of previously lax rules, but only after providing clear notice of their intention to do so. Without such notice, employees caught in the transition may have discipline reduced or overturned entirely.
Related to consistency is the issue of disparate treatment. Equal treatment of similar offenses stands as a basic principle of workplace justice. When employees who commit similar infractions receive dramatically different penalties without justification, arbitrators frequently reduce the harsher punishment to create consistency.
The Nature and Context of Misconduct
Arbitrators typically distinguish between two categories of workplace infractions:
Performance-related issues: Including tardiness, absence, careless work, and minor insubordination—generally requiring progressive discipline rather than immediate discharge
Serious misconduct: Including theft, violence, serious safety violations, and harassment—potentially justifying summary discharge even for first offenses
Even when addressing serious misconduct, arbitrators evaluate contextual factors. Did management contribute to the situation? Were there extenuating personal circumstances? Did the employee acknowledge wrongdoing and show remorse?
When management shares responsibility—perhaps through inadequate training, unclear instructions, or provocative behavior—arbitrators often reduce penalties accordingly. Similarly, when supervisors' conduct provokes employee misconduct, this typically serves as a mitigating factor.
Post-Incident Behavior and Rehabilitation
An emerging trend in arbitration involves consideration of an employee's actions following the incident. This factor proves particularly significant in cases involving substance abuse, emotional outbursts, or judgment lapses.
Employees who demonstrate genuine efforts at rehabilitation—completing treatment programs, accepting responsibility, or showing meaningful change—may receive reduced penalties. Conversely, post-discharge misconduct or dishonesty during proceedings may confirm the appropriateness of termination.
Some arbitrators apply a balancing test examining whether the employee's misconduct occurred under the influence of substances, whether their work record was otherwise clear, whether they're successfully participating in rehabilitation, and their length of employment.
Special Considerations: Last-Chance Agreements
Last-chance agreements represent a specialized approach to workplace discipline, particularly for employees with recurring problems. These agreements establish clear conditions under which employees may continue employment despite serious or repeated misconduct.
For such agreements to be enforceable, arbitrators typically require:
Union involvement in negotiating terms
Clear timeframes and conditions
Explicit description of consequences for violations
Consideration from both parties (typically the employer foregoing immediate termination)
When enforcing last-chance agreements, arbitrators generally limit their review to whether the employee violated the agreed terms rather than reassessing the underlying conduct or appropriate penalty. However, employers must still comply with their obligations under these agreements, including providing specified support or reasonable accommodation.
Notice and Warnings
Fair discipline requires that employees receive adequate notice of expectations and potential consequences before serious penalties are imposed. This principle applies differently depending on the nature of the offense.
For performance issues and policy violations, employees should generally receive prior warnings that continued problems could lead to more serious consequences. The absence of such warnings often leads arbitrators to reduce or eliminate penalties.
For obviously wrong conduct—such as theft, violence, or harassment—prior specific warnings may not be necessary. However, even in these cases, employers must have clearly communicated their policies and potential consequences.
Conclusion
Successful grievance representation requires understanding how arbitrators approach disciplinary review. By recognizing these key factors, union representatives can better advocate for appropriate discipline that serves corrective rather than merely punitive purposes.
When discipline appears excessive even though some misconduct occurred, careful analysis of these factors can provide avenues for securing more proportionate outcomes. Understanding arbitrators' decision-making processes empowers unions to achieve workplace justice even in challenging cases.
