Chapter 4 – Just Cause
1. Guidelines are NOT laws, so they are subject to a variety of interpretations by different arbitrators.
2. The arbitrator’s interpretation of any or all seven points is a product of the amount and quality of information presented.
- A “no” answer to any of the 7 questions usually means that the employer’s actions were not proper. Remember, this is not a law, only guidelines.
THE SEVEN GUIDELINES
1. Did management give the employee warning of the consequences of their actions?
A) The warning can be in writing or given orally.
B) Some actions are so serious no warning is necessary. Theft is an excellent example.
2. Was the employer’s rule/order reasonably related to the orderly, efficient and safe operation of the workplace?
3. Did management make an effort to determine if the employee charged did commit that offense?
A) The employee has a right to know what they were charged with.
B) The investigation is usually completed before the disciplinary action is carried out.
C) Under some conditions the employer may suspend pending an
4. Was management’s investigation carried out fairly and objectively?
A) The investigation should be handled by someone not involved in the incident.
B) It must be thorough.
5. Did the investigation obtain substantial evidence that the employee was guilty?
A) The evidence must be substantial not necessarily beyond a reasonable doubt.
6. Has management applied the rules/orders and penalties even handedly and without discrimination to ALL employees?
- This is a very important question. A “no” to this will usually mean that management will not be able to uphold its decision in the arbitration process.
- Was the degree of discipline related to the seriousness of the employee’s actions and their employment record?
A) A senior employee with a good record may legitimately receive a lesser penalty than a junior employee committing the same offense.
- Adequate warning Is the employee given adequate, oral or printed, warning as to punishments either in the contract, handbook, or other means in disciplinary the consequences of his conduct? Certain conducts such as insubordination, drunkenness, or stealing are considered so serious the employee is expected to know they will be punishable.
- Prior investigation Did management investigate the case before administering the discipline? Thorough investigation should have normally been made before the decision to discipline. When immediate action is required, the employee should be suspended pending investigation with the understanding that he will be returned to his job and paid for time lost if found not guilty.
- Evidence Did the investigation produce substantial evidence or proof of guilt? It is not required that evidence be conclusive or beyond reasonable doubt, except when the misconduct is of such a criminal nature that it seriously impairs the accused’s chances for future employment.
- Equal treatment Were all employees judged by the same standards, with rules applied equally? The same penalty, however, may not be always given since it may be a second offense, or other factors may logically suggest a different punishment.
- Reasonable penalty Was the penalty reasonably related to the seriousness of the offense and the past record of the employee? The level of the offense should be related to the level of the penalty, and the employee’s past record should be taken under consideration.
- Rule of reason Is the disciplinary action fairly administered? Even in the absence of specific provisions, a collective bargaining agreement protects employees against unjust discipline. Employees may reasonably challenge any company procedure that threatens to deprive employees of their negotiated rights.
- Integral consistency Was management enforcement of the rule or procedure consistent? The company should not selectively enforce codes of conduct against certain employees.
Of first importance in any case are THE FACTS – the exact facts and all the facts. As you prepare, let the witness tell his/her own story. If you shut them off and insist on getting only answers to specific questions, you may screen out some important point. You cannot possibly anticipate all the facts in every case.
After getting the story, you will then have to ask questions to sift through the relevant aspects, to emphasize important features, to fill the gaps and to help the witness see the outline of the total case, as you develop it from the facts before you.
If the witness can understand your theory of the case, he/she may tell you facts which otherwise might be inadvertently overlooked or (consciously and mistakenly) discarded as immaterial. In other words, vou must get your witness to give you assistance which is valuable because it is intelligent.
In questioning the witness you must be a friendly but nonetheless searching cross-examiner. It is your task to learn all the bad as well as the good points of the case to marshal the evidence intelligently, to prepare arguments properly, and avoid unpleasant surprises at the hearing. Advance knowledge may enable you to weaken the effect of your adversary’s cross-examination by explaining or minimizing unfavorable facts or to neutralize some of his/her direct evidence by anticipating it in your direct examination.
Witnesses in arbitration can hardly be objective about their case. Consciously or otherwise, the good points will be exaggerated, the bad minimized. Self-interest or bias may lead to fabrication or omission. Infrequently there may even be a deliberate invention of a story which has little or no foundation in fact. Early investigation will save the advocate a great deal of woe in some cases.
In any case, you must find a way to make your witnesses realize how important it is that they confide in you so that you will not be faced with any surprise at the hearing. A fact is much more damaging if it catches you by surprise. If you know about a damaging fact in advance, you may be able to explain it and take the sting out of it.
Not only must the witness be frank with you; you must be frank with the witness. Some advocates assume an optimistic attitude, apparently intended to encourage the witnesses in the early stages of the case. There is danger, however, in too much optimism. An objective recognition of the problems involved in the case is not only the ethical approach but also, in the long run, the best insurance against disappointments and dissatisfaction for your witnesses.
Any weaknesses in a case should be discussed candidly so that the witnesses willunderstand the difficulties. Sometimes this understanding will increase their helpfulness in the preparation of the case. At other times they may be brought to recognize the advisability of a compromise settlement. Furthermore, if the case should go to arbitration and be lost because weaknesses were glossed over, the failure will seem incompatible with any earlier enthusiasm and optimism of the advocate.
Take Good Notes!!! Some advocates fail to take detailed notes. They either make a few cryptic notations, understood only by themselves, or depend entirely on their memories. This is dangerous and unwise. No advocate has a memory good enough to guarantee recall of all the necessary details at the right moment. Moreover, it is useful to preserve an accurate record of the facts while they are fresh in the minds of the witnesses. Then, too, the person who confers on the case at the outset may not be available later. The records in the file should, therefore, always be in such condition that any advocate called into the case on short notice can understand the case quickly and fully by studying the file.
All witnesses should be interviewed as early as possible. Begin by asking the witness how he/she happened to know what he/she relates. Find out where the witness came from, where the witness was going, what the witness was doing at the moment of the occurrence and exactly where he/she was with respect to what was seen or heard. It is also important to ascertain whether there were any intervening objects, stationary or moving, so that you may determine whether the witness could have actually seen or heard what he/she saw or heard.
Sometimes it may be important to obtain a signed statement from the witness. If the witness prepares a statement in their own handwriting, there is less likelihood that it will be repudiated. If it is not the witnesses handwriting, have the witness sign a statement that he/she has read each page signed or initialed, and the fact it reports are true.
The importance of obtaining such statements in certain cases cannot be overemphasized. Employees may leave or be discharged before the hearing. They may lose interest, or become hostile. They may be too concerned about a new job to come to the arbitration hearing willingly. A friend today may become a foe tomorrow. A witness who shows interest at the time an event occurs may sometimes lose interest later.
Final preparation for the hearing should include a review of all documentary evidence in the case, not only those exhibits which you intent to offer in evidence but also those which the opposing party may offer. The exhibits should be arranged for ready use at tile hearing. And you will need four copies of each at the hearing: one for the arbitrator, one for the opposing party, one for the witness, and one for yourself.
If there are only a few exhibits, they may be arranged in a folder in the order in which you expect to use them at the hearing. Another folder should hold correspondence and other documents which you do not intend to use but for which a need may arise at the hearing. If they are not too numerous, the simplest arrangement is to keep these documents in chronological order.
It may sometimes be helpful to prepare special exhibits. It may be desirable, for instance, to enlarge photographs. In a case which involves extensive testimony by accountants based on voluminous records, the advocate should prepare visual aids such as balance sheets, operating statements, comparative statements and summaries.
Complicated cases need, and those of substantial importance deserve, even more detailed preparation.
Final Interview of the Witness
No matter how careful the preliminary preparation, the thorough advocate will not go to the hearing with final interviews. The advocate should interview all the witnesses who are available, to preview the facts to which each will testify on direct examination, or about which they may be asked on cross-examination.
The advocate should also prepare to deal with the weaknesses of the witness as distinguished from the weakness of the testimony. Does the witness have an ulterior motive for testifying? A friendship with another party? A bias? What is the nature of the witness’s position? Is there any other factor which may influence the testimony?
If the witness has something in his/her background which may be subject to attack, the advocate cannot afford to spare the witnesses feelings in the interview and then subject the witness without preparation, to a far less friendly probing at the hearing. The advocate must go over the facts so that the witness will not, under the influence of the shock, excitement, or embarrassment during the hearing, suppress a truth to “protect himself,” and ruin his own credibility and your chances of success.
The advocate must impress upon the witness the importance of telling the truth so that the advocate can make the effect of any attack milder by preparing for it.
2. Think before you speak.
3. Answer the question.
4. Do not volunteer information.
5. Do not answer a question you do not understand.
6. Beware of questions with double negatives in them.
7. You only know what you have seen or heard.
8. Do not guess.
- Be as specific or as vague as your memory allows,, but do not be put in a position contrary to your true recollection.
10. Do not explain your thought processes.
11. In testifying about conversations, make it clear whether you are paraphrasing or quoting directly.
12. In answering questions calling for a complicated series of events or extensive conversations, summarize them where possible.
13. Never characterize your own testimony.
14. Avoid all ad objectives, superlatives and absolutes.
15. Do not testify as to what other people know or told you unless you are asked specifically for such a statement.
16. If information is in a document which is in an exhibit, ask to see the document and read it in its’ entirety before responding.
- Do not let the examiner put words in your mouth.
18. Do not answer a compound question unless you are certain that you have all parts of it in your mind.
19. Pay particular attention to any introductory clauses preceding the guts of the question.
20. If you are interrupted, let the lawyer finish his interruption and then firmly but courteously state that you were interrupted, that you had not finished your prior answer to the previous question and then complete that answer.
21. If you are caught in an inconsistency, do not collapse.
22. Do not adopt an examiner’s summary of your prior testimony.
23. If you are finished with an answer and the answer is complete and truthful, remain quiet and do not expand upon it.
24. If an objection is made to the question, listen to the objection very carefully.
25. Avoid any attempt at levity.
26. Avoid even the mildest obscenity and avoid any ethnic slurs or references which could be considered as derogatory.
27. If the examiner appears totally confused about your answer, do not attempt to educate him.
28. If you do not remember something, so state.
29. Every witness makes mistakes. Do not become upset if you find you have made one.
Credits: Council #4 Labor Education Department
UCONN Labor Education Center, Thanks to Mark Sullivan & Wayne Marshall