Attorney Ian Russell Wins Reinstatement/Back Pay for Low-Wage Worker Represented by SEIU Local 509

A neutral arbitrator agreed with Attorney Ian Russell that Bridgewell, Inc. lacked just cause to terminate a low-wage driver for a first-time offense of improper cell phone use. SEIU Local 509 negotiated a collective bargaining agreement that provides for just cause protections against employe discipline. Just cause is widely recognized to require that an employer apply progressive discipline, meaning that discipline should follow an incremental process (counseling, then warning, then suspension) before imposing termination.

Arbitrators generally agree that termination for a first-offense is a narrow exception to the rule of progressive discipline or just cause, and applicable only in cases that involve serious, irreparable misconduct. Conduct falling within this narrow exception includes theft, violence, and patient abuse.

In this case, Bridgewell fired the employee who used his phone while driving. The Arbitrator agreed that Bridgewell had a clear and unambiguous rule prohibiting this conduct and that the employee engaged in this conduct. Nonetheless, he determined that a discharge was an excessive penalty for a first-offense.

The Arbitrator wrote:

Nothing in the Agency's rules establishes a "zero tolerance" for such obviously disciplinable conduct. Nothing in the Agency's rules establishes that the penalty for a first violation of such rules mandates immediate discharge. There is no practice of the Agency discharging employees for their first violation of the rules against texting while driving. I conclude that use of a cell phone while driving is conduct which an employer can correct through the application of progressive discipline.

He reversed the discharge, reduced the discipline to a 5-day suspension, ordered Bridgewell to reinstate the employee and to make the employee whole for the wages and benefits he lost as a result of the improper termination.