You Be The Judge (again)

[Turkeytop]

Grievor #1
Male, age 32

Job Title -
Machine operator

Rate of Pay -
$21. 45/hr

Seniority -
4 years

Employee Record -
Several attendance related issues. The boss says "He's a good worker when he's here, but we
can't rely on him to be here.

Nature of grievance -

Improper discharge

Remedy requested
Reinstatement with no monetary loss and no loss of seniority.



Grievor #2
Male, age 26

Job Title

Machine set up person

Rate of Pay

$23.72/hr

Seniority

2 years

Employee Record

Several attendance related issues. Employee had also been counseled but not disciplined for allegations of sexual harassment of a female employee.

Nature of grievance -

Improper discharge

Remedy requested
Reinstatement with no monetary loss and no loss of seniority.

The employer

Employs 87 people at its metal stamping and fabricating shop. On the day of the incident, Grievor #1 left his department without permission to look for Grievor #2. The two had a loud, verbal altercation and before long the two of them were down on the floor throwing punches at each other.

Like most employers (except hockey teams) this employer has a zero tolerance policy for fighting. The foreman fired both of them.

In its investigation of the incident, the employer learned that the two employees had done a drug deal in the plant that day and, somehow, Grievor #1 believed he had been cheated.

Both employees filed grievances. Do they succeed?

[Rate This]

Grievor #1
Male, age 32

Job Title -
Machine operator

Rate of Pay -
$21. 45/hr

Seniority -
4 years

Employee Record -
Several attendance related issues. The boss says "He's a good worker when he's here, but we
can't rely on him to be here.

Nature of grievance -

Improper discharge

Remedy requested
Reinstatement with no monetary loss and no loss of seniority.



Grievor #2
Male, age 26

Job Title

Machine set up person

Rate of Pay

$23.72/hr

Seniority

2 years

Employee Record

Several attendance related issues. Employee had also been counseled but not disciplined for allegations of sexual harassment of a female employee.

Nature of grievance -

Improper discharge

Remedy requested
Reinstatement with no monetary loss and no loss of seniority.

The employer

Employs 87 people at its metal stamping and fabricating shop. On the day of the incident, Grievor #1 left his department without permission to look for Grievor #2. The two had a loud, verbal altercation and before long the two of them were down on the floor throwing punches at each other.

Like most employers (except hockey teams) this employer has a zero tolerance policy for fighting. The foreman fired both of them.

In its investigation of the incident, the employer learned that the two employees had done a drug deal in the plant that day and, somehow, Grievor #1 believed he had been cheated.

Both employees filed grievances. Do they succeed?

No way. I’ll bet there is something in the handbook or the contract about drugs or alcohol on company property and the penalty is probably discharge. It’s hard to appeal that.

[MotorCityRadioFreak]

Grievor #1
Male, age 32

Job Title -
Machine operator

Rate of Pay -
$21. 45/hr

Seniority -
4 years

Employee Record -
Several attendance related issues. The boss says "He's a good worker when he's here, but we
can't rely on him to be here.

Nature of grievance -

Improper discharge

Remedy requested
Reinstatement with no monetary loss and no loss of seniority.



Grievor #2
Male, age 26

Job Title

Machine set up person

Rate of Pay

$23.72/hr

Seniority

2 years

Employee Record

Several attendance related issues. Employee had also been counseled but not disciplined for allegations of sexual harassment of a female employee.

Nature of grievance -

Improper discharge

Remedy requested
Reinstatement with no monetary loss and no loss of seniority.

The employer

Employs 87 people at its metal stamping and fabricating shop. On the day of the incident, Grievor #1 left his department without permission to look for Grievor #2. The two had a loud, verbal altercation and before long the two of them were down on the floor throwing punches at each other.

Like most employers (except hockey teams) this employer has a zero tolerance policy for fighting. The foreman fired both of them.

In its investigation of the incident, the employer learned that the two employees had done a drug deal in the plant that day and, somehow, Grievor #1 believed he had been cheated.

Both employees filed grievances. Do they succeed?

What kind of workplace gives a slap on the wrist for sexual harassment allegations? Ridiculous.

They have no case if there is a written policy against fighting. Even if there wasn't, that's gross misconduct in any workplace I have ever been.

[Calvert DeForest]

I think the fist fight on company property would seal it. That's over the line. If that's the way these guys wish to resolve their differences they can take it outside and throw punches on their own time. If the company has sufficient evidence of illegal drug dealing on the premises, over.

Sounds like a "drug deal gone bad"....as if there's ever such a thing as a "good" drug deal.

[TC Talks]

Sounds like #1 instigated the fight. He will not succeed.

If there is anything concrete pertaining to the drug dealing, #2 could be released. He may escape the fighting issue if he claims he was attacked.

[Calvert DeForest]

Sounds like #1 instigated the fight. He will not succeed.

If there is anything concrete pertaining to the drug dealing, #2 could be released. He may escape the fighting issue if he claims he was attacked.

True. Employee #2 could claim self-defense in the fight. Both would be gone for buying and selling the dope should the evidence sufficiently prove such a deal took place in the plant.

[km1125]

I don't think whoever was DEFENDING themselves in the fight should be fired for the fight. It's unclear who actually started the fight. #1 left his post to go have the "discussion", which elevated to a "verbal altercation" and then escalated to "throwing punches at each other"

They both could be fired for the drugs, if that is indeed proven and not just speculation.

[Turkeytop]

The Company has no written rule against fighting. There is a generally accepted principle that fighting is unacceptable in any workplace. It is very rare but not unheard of for an arbitrator to give someone a second chance when they have been fired for fighting.

The Company has a sexual harassment policy. In the case involving the grievor the alleged victim was reluctant to file a formal complaint. She said she didn't want the guy fired. She just wanted the harassment to stop. The foreman, a female member of management and the shop steward met with the alleged harasser. Without naming the complainant, they confronted him with the allegations, which he denied. They told him, if his denials were truthful, he had nothing to worry about. But if there were any future complaints, substantiated by an investigation, they will be dealt with very seriously.

The harassment stopped after that.

The issue of the drugs is immaterial to this case. I just threw that in as an illustration for one more reason why the employer didn't want either of these guys coming back to work.

The men were fired for fighting. The Employer can't after the fact, alter the grounds for the discharge. It would be like cop giving you a ticket for a defective headlight and then in court saying you also made an incorrect left turn.

The Company would need to convince an arbitrator that fighting, on its own, was sufficient grounds for the discharge.

[TC Talks]

Well, based on this it seems they are both gone.

[Robert Faygo]

The Company has no written rule against fighting.

Like most employers (except hockey teams) this employer has a zero tolerance policy for fighting. The foreman fired both of them.

I am thoroughly confused. They have no written rule but at the same time have a zero tolerance policy?

Help me out here.

[Turkeytop]

The Company has no written rule against fighting.

Like most employers (except hockey teams) this employer has a zero tolerance policy for fighting. The foreman fired both of them.

I am thoroughly confused. They have no written rule but at the same time have a zero tolerance policy?

Help me out here.

It's firmly established in arbitral law, there is zero tolerance for fighting in any workplace except on the hockey rink, where it is encouraged.

No employer has a written rule that you can't piss on the boss's shoes.. But I don't believe anyone could get away with it.

[Robert Faygo]

Ok.

But which of the above rules / policies does the actual employer actually have on their books? A zero tolerance policy that employees know about or no written rule at all about fighting? This is a critical point and the heart of whether or not their grievances hold any water at all.

[Turkeytop]

I can't believe there is an employee anywhere who believes it's OK to fight at work, simply because there isn't a rule posted somewhere..

It is such a well established principle it would make more sense for employers who enjoy a good fight to post a notice telling everyone that fighting is a good thing, just like the NHL.

It's impossible to anticipate everything an employee might try to do and make a rule about it.

[Robert Faygo]

So this isn't actually a real thing but instead an argument against fighting in hockey?

[Turkeytop]

So this isn't actually a real thing but instead an argument against fighting in hockey?

This is an actual case I handled. I don't care what they do in hockey because I don't watch it

But, in all my years working for the Union, it was rare to get someone reinstated who had been fired for fighting. When it did happen the arbitrator usually substituted a long suspension. If I could have gotten it down to a five minute penalty, with pay, I'd have felt like a winner.