Discipline Education Series: Seniority as a Mitigating Factor
At this month’s conference, the arbitrators on the faculty discussed seniority as a mitigating factor. The following are excerpts from that discussion. Each topic below represents the views of that arbitrator.
Differences among Arbitrators
At every conference, all of the arbitrators are experienced, yet we give different weight to seniority as a mitigating factor. You will see this as we discuss actual cases.
Simply put, there is a difference of opinion. And we bring our personal values to the process. Today, I am older than I was yesterday — and tomorrow, hopefully, I will be one day older than I am today. And I make no bones about this: I value seniority a great deal.
I was just speaking with an audience member in the utilities industry. He has an employee facing serious discipline. And the employer is arguing that the grievant is a short-service employee; he only has 10 years.
Folks, 10 years is not a short service employee. That is one-third of a working life. And in some industries, it can even be more than a third, depending on layoffs, shutdowns, transfers, etc. But in any setting, 10 years is not a short-service employee.
Analysis in a Case
We use the metaphor of the bank. The more years of service, the more credits the employee has in the bank. The employee can draw on those credits. This metaphor is just another way of saying that the employee has performed adequate or good service for x number of years. And the larger the number, the more the employer has to take that into account before issuing discipline.
Second, look at the rest of the workforce. Where does the employee fall on the seniority ladder? For example, if the median is 15 years, then seniority is a strong mitigating factor for that group. Above that, it is an even stronger factor. Below that, it is a weaker factor.
Third, where on the timeline does the employee receive the discipline? Take the following two extremes (these are not uncommon cases). The grievant has 18 years of experience; the first 15 have been good, but in the last 3 years, he has received progressive discipline and now discharge. Or the other extreme: the employee had a rocky start, works well for 10 years, and then goes back to his old ways. He has 18 years of service, too, but it becomes a spotty record. Seniority counts for more in the former case.
Management can argue that a long-service employee should know better. In some instances, such as safety violations, this argument is persuasive.
A similar category is when the rule violations undermine the employment relationship: striking a supervisor, stealing from the employer, or engaging in other egregious conduct such as sabotage. Arbitrators generally agree that seniority does not save an employee who commits a violation in these 3 categories.
The other argument I hear is that seniority is not a factor when it’s a zero-tolerance offense. But that’s not a good argument. The test is just cause - not zero tolerance. If you want zero tolerance, get the union to agree to that in the CBA and make it a cardinal sin with discharge on the first offense. You just heard two arbitrators say that 25 years, 30 years, and wow, 46 years is a very long time, and that an employee who strikes a co-worker with an open hand goes back to work without backpay because of his seniority. That is how they interpret the just cause standard. I may not come out the same way, but their analysis is perfectly valid.