Throughout this paper, I will identify the issues raised in the assigned scenario and describe what arguments I would make if I was representing the union in arbitration and if I was representing the employer in arbitration.
From the union's perspective, the issues raised in the assigned scenario are wrongfully accusing employees of theft; termination of employees without a just cause; Bonnie's termination is severely harsh in comparison to her 10 year model record of employment; denial of the rights of the employees to have union representation at a disciplinary hearing, and failure to provide evidence of employees' wrongdoing.
"Less is not more" as it pertains to raising issues during arbitration. Like a good advocate, I would try to raise as many issues as arguably possible. However, I am of the realization that qualitative issues trump quantitative issues. Like a pit bull, I would go for my opponent's jugular, and push the envelope as much as I can. Of course, I would endeavor to neither compromise my integrity or the legal code/code of ethics (as an attorney).
As the saying goes, "first things...first!" Therefore, I would allow the proper procedure to run its course: shop steward/griever communicates with the manager (in question). If unable to reach a resolution, a union official communicates with a higher manager. If still unable to reach a resolution, the union president would communicate with an executive. If all attempts at reaching a resolution to this point fail, then the employer and I would appear before an arbitrator as per our contractual agreement on Grievance and Arbitration: if the parties are unable to resolve any grievance, either party may submit the issue to the Arbitrator for final and binding resolution.
After the four steps 'dance' illustrated in the above paragraph, I would let the 'dogs loose' by arguing that the employees did not steal the shirts. I would underline this argument with the failure of the employer to provide evidence via a camera recording or employees' confession to refute my claim. Thus, I would be able to assert that the manager breached the contract, in particular, the Just Cause: no employee may be disciplined or discharged without good cause. I would emphasize not only the act of the breach but the harshness, too. For example, I would accentuate the model record of employment that Bonnie had maintained over a period of 10 years while waving her personnel file as an appropriate prop. Hammering the nail, I would declare that based on the evidence it can only be concluded that the employees, especially Bonnie, were terminated with extreme prejudice. For good measure, I would throw in 'the denial of requested union representation' by the manager at the disciplinary meeting although the employer has a legitimate defense (will be discussed, later).
In reference to the employee handbook containing the provision stating that theft is a terminable offence that was given to Clyde but not given to Bonnie because of her earlier date of hire; I would deem it negligible because of the following reasons. First, the collective bargaining agreement is a contract whereas an employee handbook is not a contract. Of such, management reserves the right to change the handbook's material at anytime as per the disclaimer in the front and back of the employees' handbook. Therefore, in the view of the union, an employees' handbook is null and void since it's not a provision of the collective bargaining agreement. On the other hand, theft is against the law and ignorance of the law is not an excuse for breaking the law. Howbeit, the preceding sentence is moot because the employees are not guilty of theft. If not, management will have to make a case against my position by first providing undeniable evidence supporting its claim.
From the employer's perspective, the issues raised in the assigned scenario are the employees were caught stealing, and theft is a just cause for termination. For theatrical (but strategic) effect, I would present the employee handbook containing the provision stating that theft is a terminable offence; given to Clyde upon his hire. As for Bonnie, I would stress the criminality of the offence - 'stealing is against the law' - a criminal/prosecutable act was committed on the company's premises as witnessed by the management upon viewing a camera recording.
More so, Clyde's termination is not severely harsh because of the long paper trail since his recent hiring. Like in the game of baseball, 'three strikes you're out' is relevant in Clyde's case. In addition, management reserves the right to reach a decision on disciplinary matters despite the absence of a requested union representative as per labor law. For example, management is allowed to reach a decision even although the investigated party (the fired employees) refused to participate without union representation at said disciplinary meeting. Anyway, it could be averred that the union representative wasn't immediately available because he didn't contact us until the following day.
Like the union's counterpart, management's advocate would apply the "Less is not more" model as it pertains to passionately raising issues during arbitration. I would mirror my adversary in all aspects described in the third paragraph of this paper.
After the four steps dance described in the fifth paragraph, I would effectively argue the issues raised in paragraphs six and seven, respectively.
The Arbitrator would more than likely rule in the favor of the union because of the lack of evidence: neither camera recording nor employees' confession. Thus, the Arbitrator would be forced to give the union the benefit of the doubt. Someone might counter that Clyde's termination would hold up even if Bonnie is reinstated because of her lengthy model employment in comparison to Clyde's unsuccessful and short employment record. To the contrary, Clyde and Bonnie would be 'in the same boat' (nope, not the getaway carJ) because the lack of evidence makes his checkered past not relevant to his reinstatement in his occupation. The late great Barrister Johnnie Cochran would put it best: "if you don't have the evidence to show... then you have to let my clients go."
In conclusion, I identified the issues raised in the assigned scenario and described what arguments I would make if I was representing the union in arbitration and if I was representing the employer in arbitration.
Karl A. Mitchell
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