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July 22, 2014
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Labor Arbitration

Labor Arbitration Institute

Conference Reporter provides weekly, not-to-be-missed insights from highly regarded arbitrators on hot issues and advocacy strategies. The arbitrators are the faculty members from Labor Arbitration Institute's conferences held around the country. Conference Reporter contains their best advice and insights on the legal and arbitral principles presented.

March 27, 2014

Serious Offenses - Weak Arguments

At this month's conference in Seattle, a well-known labor arbitrator listed out union defenses which he has heard in theft and other serious offense cases. Each of the numbered statements below was a union argument, followed by the arbitrator's reaction and additional material.

1. The employer doesn't have a rule.
The employer was discharging the grievant for theft. The union's defense was that this employer did not have a rule on taking tools from the plant, when other employers do.

This is a stupid defense. An employer does not need to have a rule on everything. There are certain things for which you definitely do not need a rule. One of these is that an employer's property belongs 100 percent to the employer.

2. Not the employer's property.
This argument was made in another case. As part of his duties, this police officer would make routine visits to the local hospital. And he would occasionally purloin, without permission, various items belonging to the hospital.

The union argued that he can't be discharged because he didn't steal from his employer.

That's a pretty weak defense. Theft is a serious offense, whether it's from the employer, the employer's customers, or another organization that has a work connection to the employer.

3. The man's locker is his castle.
This defense harkens back to the Magna Carta. It holds that the king could not disturb a peasant's home, any more than the castles of the noblemen who forced the king to sign the Magna Carta - the first bill of rights. This is the forerunner to the 4th Amendment of the US Constitution which prohibits warrantless searches.

In a labor case, this defense is inapplicable. The locker belongs to the employer. The castle or cottage belongs to the homeowner.

4. The employer didn't go to law enforcement or the prosecutor, so it can't be that serious.
When a union advocate makes this argument, some employers say, "Okay, if you want us to go to the prosecutor, we will."

In other words, the union wants to be careful here.

There are two situations related to this.

The Prosecutor Declines to Press Charges
First, the union argues that when management did refer the case to the prosecutor, the prosecutor declined to press charges. Therefore, the union feels that the employer must also dismiss the case.

This union argument is misplaced for two reasons. First, grievances under a contract are different than cases under the criminal code. They are two separate forums and independent of each other. Secondly, each has a different burden of proof. A prosecutor might decline to take the case because the burden of "beyond a reasonable doubt" is a high burden and he/she doesn't have the evidence to meet it. In an arbitration case, the employer's burden is preponderance or clear & convincing, which is considerably easier to meet.

So, to answer the union's defense, the employer does not automatically lose. The employer can win the case, if the evidence persuades the arbitrator.

A Jury Acquits the Grievant
Now, the grievant has been adjudicated at the highest standard. Can the employer still move to discharge? The answer is yes. Assuming the charge is the same in both forums, the employer may be able to prove what the prosecutor could not. Secondly, the employer could raise a different charge.

I have this case now. The criminal court found this police officer innocent, but the employer moved to discharge anyway. The crux of the employer's case is that the officer did nothing to inform the shipper of the property left sitting by the side of the road. 

You are receiving Conference Reporter because you subscribed and/or you have attended a Labor Arbitration Institute conference. If you prefer NOT to receive these weekly insights, you may unsubscribe using the link at the bottom of the email. We hope Conference Reporter will be of value to you in the coming months.


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