April 1999 Legal Update

LEGAL UPDATE
By: Louis D. Stober, Jr., Esq.
CSEA REGIONAL ATTORNEY

DISCIPLINE FOR DISCIPLINE'S SAKE?

Recently, I arbitrated a case that demonstrates how important due process is under the Disciplinary Section of the Collective Bargaining Agreement. In this case, an employee was disciplined on charges that he "acted improperly" and the major reference to dates and times was: "various, a.m. & p.m." In addition, the one date the County specifically referenced was the wrong date.

At the arbitration, I argued that the employee's due process rights were violated because the charges were too vague to form a defense. Furthermore, even when the County put on witnesses to testify as to what was intended in the charges, they could not specify dates or times of incidents. Finally, since more than one year had elapsed since the alleged incidents, I argued that the County was prohibited, under Section 10-7(b) from recharging the employee.

The arbitrator held: "There is no doubt that the charges against the Grievant … lack specificity and there is insufficient evidence to establish that either the Grievant or the Union were ever provided with enough detail regarding the charges against the Grievant. In fact, testimony by both of the County's witnesses indicated that although they believed the Union and Grievant knew exactly what the charges were about, nothing more specific than what was contained in the Notice of Personnel Action was ever provided to either the Union or the Grievant."

In holding for the employee and dismissing the charges, the arbitrator stated: "The bottom line is, the Grievant was denied his due process rights and, therefore, there exists no just cause for finding him guilty of misconduct or imposing any form of discipline in this case. The lack of specificity in the charges as well as throughout the entire process and also reflected in the testimony and documentary evidence presented at the arbitration hearing is sufficient to establish that the Grievant and the Union were denied information essential to mount a proper defense in the Grievant's behalf."

As you can see, unless the County puts you on proper notice of what you are being charged with, the charges will not stand. This decision re-confirms the mandate that all employees charged under Section 10 receive proper due process and no one will be required to defend themselves against charges of misconduct or incompetence unless the County spells out the charges in sufficient detail to allow a proper defense to be prepared. Furthermore, if more than one year as elapsed since the incident[s] forming the basis of discipline the County will be prohibited from re-charging you unless the charges would, if proven in a court of competent jurisdiction, constitute a crime. If you believe you are in a similar situation, contact your union representative immediately since there is only a limited period of time to appeal any disciplinary action.