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(Source: Conference Reporter Newsletter 03/21/2019)

If you were advising someone on investigating their first case, it should include the following points.  The advice is from a long-time labor arbitrator who is the umpire under several national agreements.  It is from a lecture that he gave this month in Chicago.

1.  This is what I recommend:    The decision to discharge must be based on a meaningful, more than perfunctory investigation.   This means the employer must conduct a good faith investigation before reaching a decision.

2.    A meaningful investigation is one that is not controlled by emotion.  Decisions should not be based on an immediate reaction to whatever happened.  Instead, the employer slows down, talks to a few people and tries to find out what truly happened, and makes a decision with a cooler head.

In one industry, they put the employee on what they call a 24-hour cool.  Both parties want emotions to subside for a bit and people get some distance.

3.   Do not decide to discharge and then go look for evidence to justify the decision.

4.   A meaningful investigation does not mean you have to talk with everyone who was on the plant or office floor.   I hear this union argument all the time; there were 78 people and the employer only spoke with 12.  I tell the union that not all 78 have to be interviewed.  

You have to talk with enough key witnesses to constitute proof.  Witnesses that have knowledge of the circumstances.  And of course talk to the employee who is about to be disciplined.  Too often, the employer skips talking to the future grievant.   Then, in the grievance process or at the hearing, they learn about some mitigating circumstance.  

It should be noted here, that the employer can always go back later and talk with some of the 78.  You can do this even after issuing the discharge.  The test is a good faith effort.

By the way, it should not surprise you:  among the 78, the number who didn’t see anything, or were distracted, or thought it was too noisy, or weren’t paying attention, is very high.

In summary, an employer has to do enough investigation to convince itself that something happened.

4.    The person who decides can also be the person who does the investigation.  I know this is controversial.  I get the union argument that HR did the investigation and turned over its findings to the manager, and the manager — without talking with anyone — made the decision to discipline or discharge.  I don’t think it’s necessary for the manager to do the investigation.  What is necessary is that there’s a good faith attempt to find out what happened.

5.    Let’s assume there has been a procedural error (such as a non-existent investigation) committed by the employer.  But there is enough proof that the grievant committed the misconduct and warrants discharge.  There are a few arbitrators who will reinstate the grievant.  Most will not.  I will not overturn a discharge based on proven misconduct when the employer commits a due process violation.

There is a middle position.  The arbitrator can issue “front pay.”  The grievant is paid for his lost wages between the date of discharge and date of the arbitration award.  But the grievant remains discharged and does not go back to work.

Another middle position is to just convert the discharge to a long suspension.  In both cases, the arbitrator is telling the employer to follow the procedural guarantees in the contract or in the Due Process doctrine.

6.  If you represent the union, do more than just point out the procedural error or Due Process violation.  You need to explain how the grievant was affected by the error;  how he was prejudiced by the error;  what would have happened if the employer had followed the Due Process provision or doctrine?  

7.  If you are the employer, you want to talk about how the grievant was not prejudiced.  This can include attempts after you made the discharge decision to cure or rectify any shortcomings in the initial investigation.

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