Due Process in the Discipline Process

By Florey, Peter | Dispute Resolution Journal, February 1999 | Go to article overview

Due Process in the Discipline Process


Florey, Peter, Dispute Resolution Journal


The Weingarten case raised the issue of due process rights In disciplinary actions. This, and related Issues are far from settled, says author Peter Florey. He asks whether traditional statutory remedies will spill over into contract arbitration, and invites readers to comment on their views and experiences.

"David, the plant manager wants to see you in his office. Right away!" The foreman's message has ominous overtones and implications. David has never been summoned to a meeting with a senior supervisor in the many years of his employment; he has the sinking feeling that he has been found out as the supplier of drugs in his department and suspects that his job will be in jeopardy.

David knows that he does not have much time to think of an adequate response: his foreman expects him to get moving. A thought flashes through his mind: "I can't face this alone. I need help. I need assistance and representation." He turns to the foreman: "Call my union steward! I want my union steward!"

The foreman dodges the cry for help. "David, you've got to go now. If you have a problem, tell the super!"

In the office, David repeats his demand for a union steward several times. Each time, he is met with either denial or silence. As the meeting progresses, the plant manager confronts David with reports from an unidentified informant of his drug dealings.

"David, you have been a good worker all these years, and I will give you the opportunity to resign," he says.

For the last time, David asks that his union steward be called in. When his request is denied, he signs the prepared resignation despite several circumstances he could have used as a defense-though not without prior discussion with his union steward-such as the involvement of other workers and even managers in the drug "ring" and the quiet condonation of his activities by the foreman.

After he clears out his locker and is escorted from the plant's premises, he goes straight to the union office to file a grievance. After lengthy consultations it is decided that David will seek reinstatement using only one reason: he was denied due process when he was not accorded union representation. On advice of the union, David has decided to keep quiet about the involvement of other people, including members of the bargaining unit and of supervision.

This scenario is not an isolated incident. It has been played out, albeit in many variations, over the years. It raises the issue of lack of due process in the disciplinary process. The whole question of due process was spotlighted by the National Academy of Arbitrators as early as 1958, at its 1I th annual meeting in the ground-breaking address by W. Willard Wirtz on "Due Process of Arbitration."

Due process in the imposition of discipline in the workplace was brought into sharp focus again in 1975 when the U.S. Supreme Court issued its so-called Weingarten decision' which was reviewed at its 10th anniversary in 1985.2

The Weingarten case, as depicted above, addressed the question of due process in a disciplinary proceeding in the context of the National Labor Relations Act. Arbitrators, on the other hand, had been dealing with the issue as one aspect of the "just cause" standard when a discipline is grieved under a collective bargaining agreement. The issue of due process had been raised by union representatives when management failed to heed the plea of a suspected worker for union representation in a meeting-- whether called for investigation of a suspected dereliction or for the imposition of a penalty. Lack of due process had been cited to arbitrators as a total defense to any penalty or as a mitigating factor. Although these instances did not involve Weingarten issues proper, after 1975, they were nevertheless labeled as "Weingarten rights cases."

Under the heading "Due Process in Discipline and Discharge," arbitrators' approach to the issue of due process has been distilled in The Common Law of the Workplace, a recent book authored by members of the National Academy of Arbitrators and published by the Bureau of National Affairs which summarizes the views of the profession. …

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