April 2007 - Associated General Contractors of California

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I N D U S T R I A L R E L A T I O N SThe “Just Cause” Standard in Discharge GrievancesBy Mark ReynosaIn the adjudication of discharge grievances, the burden ofproof always lies solely on the employer. Both labor agreementsand public policy apply similar standards with these grievances.By far the most prevalent standard is “just cause.” Understandingthis standard is essential in determining your defensible positionand minimizing the risk associated with an adverse decision bythe arbitrator. As a practical matter, when deciding a dischargegrievance, arbitrators use six separate tests to determine if the“just cause” standard had been satisfied.The first test of the “just cause” standard is written notice. Anemployer must give a discharged employee written notice thathe/she has been discharged as required by most labor agreements.Written notices are often lost because project managers/ superintendentsare not aware of the requirements; therefore, policies areoften erratically or selectively enforced. In addition, fromthe date of hire, an employee is entitled to have knowledgeof what standards are expected and what the punishmentswill be if these expectations are not satisfied. Updatedemployment policies and procedures, complete with a list ofconsequences for non-performance, and a signature page willassist your defensible position and establish preliminary notice.The second test is relatively self-explanatory: a rule must bereasonable. In other words, does a direct linkage exist betweenthe rule and the effective operation of the business? As a rule,policies and procedures driven by health and safety concerns,industry standards or a business necessity are reasonable, andtherefore defensible.Because employment decisions should be based on fact,arbitrators tend to examine the third and fourth testscollectively. The third test is that investigations must bethorough and timely. A case may easily be lost because aninvestigator missed a relevant fact entirely, or the facts theypresented were dated (i.e. disciplining an employee for aproblem a month after the incident). The fourth test is thatinvestigations must be fair and impartial. Both sides of theissue need investigation; always allow the accused to presenttheir side. To create a defensible position, the investigationprocess, and subsequently any decisions made, must be freefrom bias or pretext, and consideration must be given tomitigating circumstances.Passing the fifth test mandates that the proof presentedmeets specific criteria. Proof must be adequate, pertinent,recent, and relevant. Witnesses must be reliable, credible,and able to provide first hand accounts of the facts, nothearsay evidence/testimony. Any documents presented mustbe current, dated and signed. Circumstantial evidence isinadequate. Here, our level of success will be determined byour ability to present multiple forms of irrefutable evidencethat validates our positions.Finally, the sixth test for the “just cause” standard is anemployer’s even policy of treatment and punishment. Historically,arbitrators in the construction industry will evaluate the employer’spast application of policies and punishment to determine if theyare consistent. Any punishment imposed must suit the offenseand cannot be arbitrary or capricious. With this in mind,arbitrators view harsh and disparate treatment as a serious issueand are more willing to rule against an employer in a case wherethey believe the discharge was unjustified.In conclusion, a failure to meet any one of the aforementioned“just cause” standards may constitute sufficient grounds for anarbitrator to rule against an employer in a discharged grievance.With all grievances not being equal, it is recommended thatmembers with any grievance, including discharged grievances,contact the Industrial Relations Department, North at(925) 827-2422 or South at (626) 608-5800, to clarify the issueand the remedies sought, to prepare a case to support yourinterests, to anticipate arguments by the Union/grievant andprepare responses, to evaluate prospects (strength andweaknesses) of success, and to review options.Mark Reynosa is Field Services Manager, Industrial RelationsDepartment, Northern California.20 VOLUME 37, NUMBER 4 — APRIL 2007THE VOICE OF THE CONSTRUCTION INDUSTRY
S A F E T Y C O R N E RWhat Should You Expect From YourWorkers’ Comp/General Liability Loss Control?By Bo BradleyLet’s start with looking at youraccident records over the last fewyears. Are the accidents and costsassociated with those accidentsactually decreasing each year (notartificially through reducedrevenues or a decrease inworker-hours)? If they are aboutthe same or have increased, whyhaven’t the loss control servicesyou are receiving made adifference? What can you do tomake a difference? A workingrelationship with your broker and your carriers is vital!When it comes to loss control, a working relationship betweenthe client and the broker is crucial in ensuring yourneeds are fully met by your workers’ compensation and generalliability carriers. Be sure that your broker and insurance carriersclearly understand your needs as they pertain to the specificlines of insurance they are providing. Your firm is paying apremium that includes moneys set aside for risk controlservices. Be sure to fully utilize these services.There are several services that should be available to youfrom your insurance loss control departments. Your brokershould serve as your informational resource for items such as:• Best Management Practices• Legal• Liability• Risk Control• Safety Engineering• Quality Assurance• Industry Activities/impact issues• Regulatory mandate updatesYour broker should provide you with executive coachingand/or consultative services to your owners, senior managers,risk managers, safety directors and human resource directors.They should assist you in identifying or coordinatingprofessional development activities or personal strategicplans for safety personnel.From your carriers you should decide from the onset thefrequency of loss control visits, schedule an IIPP review, trainingneeded, etc. Once a policy is written, AB 110 makes it illegal forcarriers to charge extra for loss control services.Find out which loss control person is assigned to your firm.What are his or her credentials? Is he or she a constructionspecialist? If not, do you really believe this person will be able tounderstand your field operations and the risks involved? It isrecommended that your safety professional accompany the losscontrol representative at least on the initial visits until he or sheis comfortable with the qualifications of that loss controlrepresentative. Be sure to get a written report for each visit.You should also know what office will be handling the claims. Dothey have claim representatives that have construction background?This is important so that the claim representative can understandthe nature of the work, what is required of the worker and how theycan get them back to work quicker.It is recommended that the team (team consisting of loss controlrepresentatives, the safety personnel, claims representative, etc.)meet at least quarterly and communicate and track the site visits,results, claims, etc. If you find that you have so few claims (kudos toyou!) that it’s not necessary to meet so frequently, you can reduce itto twice a year. It is not recommended that you meet less than that.Bo Bradley is AGC of California’s Director of Safety, Health &Regulatory Services. Also contributing to this article were:Bruce Beardsley, Arthur J. Gallagher & Co.; Donovan Jackson, Willis;and Rick Church, AON Risk Services.THE VOICE OF THE CONSTRUCTION INDUSTRYAssociated General Contractors of California 21
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April 2007 - Associated General Contractors of California

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