Termination too severe for grievants' involvement in fight
This matter arose when the two grievants - an Inspector and a Leadman, respectively - were terminated for fighting on the job. The incident arose when the Leadman made a disparaging comment about the Inspector's use of a telephone. Both grievants suffered injuries in the ensuing altercation. The Union argued that termination was not justified, as the Employer improperly deviated from a long-standing policy of implementing progressive discipline for on-duty physical altercation. If the Employer sought to change the long-standing practice, it should have notified the Union and engaged in negotiations on the matter. The Union also claimed that the Employer improperly failed to consider the grievants' long, discipline-free careers when determining the level of discipline to implement. The Employer took the position that the seriousness of the grievants' misconduct, coupled with management's obligation to maintain a safe work environment, justified the penalty of termination.
As for the Union's past practice claim, the Employer asserted that the evidence submitted by the Union was "irrelevant", as those cases did not involve injury to employees. Finally, the Union was aware, since at least 1989, that employees would be discharged for fights that resulted in injury. The Arbitrator ruled that termination was too severe a penalty. Evidence supported the Union's assertion that verbal or physical altercations did not automatically result in termination. Furthermore, the decision by the new chief executive to punish violent confrontations with termination - while reasonable - was not properly communicated to the Union or the workforce, held the Arbitrator. He stated that "under accepted arbitral principles, the Company was obligated to inform its workers that its former practice of progressively disciplining employees involved in altercations would not continue, and that workers so involved would henceforth be subject to discharge." Finally, the Arbitrator concurred with the Union that the grievants' prior long, discipline-free records served as mitigating factors. Accordingly, the employer was directed to reduce the termination's to three-day suspensions, and make the grievants whole.
Summary Of Labor Arbitration Awards, Report No. 469 April 1998 (469-1) Aircraft Braking Systems (OH) and United Auto, Aerospace and Agricultural Implement Workers Of America Local 856 Arbitrator: George W. Van Pelt Aug. 28, 1997
From Summary Of Labor Arbitration Awards, Report No. 469 April 1998
Workplace Violence - a loaded gun pointed at the employer....
The current internet web page of Braun Consulting Group has vital information on violence in the workplace and offers concrete suggestions on how to confront this ugly specter.
These recently published sound files on the internet feature comments by Robert Braun. The six minute sound file discusses an emerging threat to employers and employees alike. . . violence in the workplace. . . and offers some solutions to prepare for this frightening reality.
A sample of the topics addressed are;
"When does off the job violent conduct create liability for the employer?"
"What steps should the employer be taking...?"
"...you still have (as an employer) an affirmative obligation to NOTICE what is going on, and do something about it..."
Your comments and feedback while visiting our website are welcome, as always.
|
Document Pitfalls and Disasters
Although documentation is often an employers best defense against legal liability, there are instances when dashing off "something in writing" can doom you in court. Following are some tips, and typical scenarios:
Too Many Memos: Be careful what you write and don't write too much.
Example: An over 40 employee marched his employer into court for age 3discrimination, waving a memo written by the company's CEO, summarizing a management meeting. The memo referred to older employees as "blockers" who prevented younger workers from being promoted. It also stated there was "too much deadwood" in the company and the organization needed more employees in the 30 to 40 age range.
Company's defense: the meeting the memo summarized occurred 1 yr. after the employee' s termination. It was not written by the managers who participated in the termination decision.
Court: Sorry Charlie. Even though the comments in the memo didn't relate to the employees termination, and had been made after his discharge, they still reflect managerial viewpoints toward older workers, and make the existence of discriminatory motive more probable. (Ryder v. Westinghouse Electric Corp., 3rd Cir., No. 96-3414)
There's That E-mail Again! Here's one to think about - A retailer on the verge of bankruptcy intercepted an e-mail message sent by a senior-level executive at a rival company, and used it to thwart the competitors attempts to steal its management talent. The e-mail urged company managers to "be predatory" about hiring employees from the faltering retailer; encouraged raids in departments "where the loss of people would hasten the company's weakened state"; and stated that "the taking of their people accomplishes two things, makes it even harder on them to do business and assists us with the constantly challenging hiring situation." Using the e-mail message as the basis for its decision, a bankruptcy court judge ordered the rival retailer to stop shopping for the company's managers.
Insurance Form Fiasco: At a meeting to enroll employees in a group insurance program, an employee completed an application and submitted it to her supervisor to be faxed to the insurer. Unbeknownst to the employee, the supervisor did not send in her application because he thought she was going to be fired. When the employee later submitted a claim, only to be rejected, she sued her employer for negligence, among other things.
Two courts ruled in the employees favor on the negligence claim, rejecting the employers argument that it had no contractual obligation to forward her application.
Reasons: a contractual relationship between a employer/employee existed because the employment relationship existed. The service of forwarding the application his ordinarily provided to an employee by an employer. The employer accepted the application with the intent of forwarding it to the insurance carrier. The employer knew the employee was relying on it to do so. Also, the company knew that failure to forward the application would result in a lack of coverage.
(Champion Billiards Cafe, Inc. v. Hall, MD Ct. App., 685 A. 2d 901)
Document Dichotomy: It pays to remember - documents can either work for you or against you, depending on whether they show good faith decision-making on your part, or whether they support an employees contention that you acted with inappropriate intent. Don't allow a document to drag you into court; document objective, factual information free from words and actions which can infer bias or other inappropriate behavior.
(Excerpted in part form "Personnel Legal Alert", Vol. 9 No. 18, Feb 16, 1998)
Braun Consulting Group
* Insurance * Labor
*
Personnel
|
|
