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Prior Records and Discipline

A worker's prior record on the job can be a two-edged sward. If it's bad, it can inflict serious, even fatal, employment wounds on someone who gets into new trouble on the job. But, if it's good, it can be a much-welcome weapon that can be used to trim back an employer's hope for disciplinary action.

Documenting a clean record may help minimize discipline

Logic tells us that a worker's past record should have little impact on discipline decisions flowing from a new incident, but that's just not always the case. From an employer's point of view, anything that can be found to support disciplinary action in arbitration is something worth trying. In the face of such tactics then, unions have no choice but to take the opposite tack: be sure the arbitrator is aware of your member's clean record. It just might help the worker minimize the damage from his or her current scrape.

While a worker's past record offers no guarantees, good or bad, on what will happen if a case goes to arbitration, the following examples give a sense of how arbitrators may respond.

Missing Tools

Three employees were given three-week suspensions when the employer found missing tools in their lockers. The arbitrator reinstated the workers because he didn't believe they had unlawfully taken the tools, the tools were still on company premises, and all three of the grievants were long-time and respected employees with unblemished work records.

Poaching Deer

A long-time railway employee was fired for carrying a gun onto company property and shooting a deer out of season, during working hours. He and another employee were out on the railway right-of-way when they shot the deer and brought it home on their railway truck. The arbitrator put the fired hunter back to work because the other man was just suspended for five days, and the grievant was able to document 12 years of spotless employment.

Traffic Accident

A foreman was dismissed after a traffic accident. In arbitration the company said the termination was not just because of the accident, but because the foreman had violated a seat belt rule as well. The company hadn't cited the seat belt issue at the time of termination, however. The arbitrator noted that the worker had a spotless accident record and no disciplines over 16 years on the job, the seat belt change inadmissible this late in the process, and the accident alone was not just cause. He ruled the discharge improper.

Sleeping on the Job

A machinist was seen sleeping on the job and was fired. During the hearing, the company raised an earlier misconduct problem for which the machinist had been disciplined. The arbitrator ruled for the company, noting that the supervisors who testified against the worker had no reason to lie about what they saw and he had been warned and suspended earlier for sleeping on the job. The arbitrator said that the other misconduct did not weigh heavily in his final decision.

Clocked Out Without Permission

A worker was fired for clocking out on completion of an overtime assignment instead of following a requirement to check for further assignments. The arbitrator reduced the penalty to a three-day suspension, noting that his prior discipline record consisted only of an oral warning for taking extended breaks, and the employee did not refuse an assignment but only clocked out and went home.

Carelessness

An auto mechanic was fired under the "carelessness an negligence" rule because a car he was working on accidentally slipped into reverse as it was being lowered on a grease rack. The company raised three other infractions to back up its case against him. The arbitrator put him back to work because the particular model of car had a history of transmissions slipping from neutral into reverse, and the company "cherry picked" previous reprimands and failed to cite others. The arbitrator said the company appeared to be "saving" some of the prior record for future disciplines should it be necessary.

Two-Year "Wipe Clean" Clause

An employee was fired for poor workmanship. At the arbitration, the employer reviewed the worker's entire 20-year record in an effort to show it was not a one-time event. The arbitrator sustained the discharge, despite a two year "wipe clean" contract clause which said that old disciplines could not be used to justify a later discipline decision. He felt the recent record was sufficient to uphold the company's action.

A telephone operator was dismissed after complaints that she improperly disconnected calls of two customers. The arbitrator reduced the penalty to a 30-day suspension, noting that in the two years following a previous incident, she handled thousands of calls without a problem. He said that prior disciplinary actions should have been from her file.

When handling cases where prior records can come into play, be careful to consider the following principles:

Check for time limits on use of prior disciplinary actions.
Bring good prior records to the attention of the company and the arbitrator.
Bear in mind that prior record is always a secondary reason for an employer to take action against a worker.
Make sure that the prior disciplines were fro the same or similar offense.

--George Hagglund. The writer is professor emeritus of labor education at the University of Wisconsin-Madison.

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