Arbitrator Rules Employer Cannot Terminate 1199SEIU Member Without Notice That She Faced Termination And Cannot Rely Upon "Shadow" Personnel File

Just because an employee has been disciplined in the past does not mean that an employer has the right to terminate him or her for a subsequent offense. Attorney Ian Russell persuaded an arbitrator that "just cause" language requires an employer to document performance issues and to notify an employee that termination will result from future misconduct. The arbitrator here reinstated the employee under a collective bargaining agreement negotiated by 1199SEIU United Health Care Workers East.

In this case, the employer issued written warnings and a one-day suspension to the employee. None of the disciplines promised termination for subsequent misconduct or otherwise suggested that the employee had been placed on a "final warning" or "last chance" status. The arbitrator agreed with the Union that the employee reasonably did not believe that her employment was in a perilous state. He wrote, "She could not reasonably have known that discharge for a subsequent charge reconciliation error would be the next step of progressive discipline following a suspension of only one day."

The arbitrator further concluded that the supervisor improperly maintained or relied upon notes about alleged previous counselings, where such notes were not maintained in a personnel file or otherwise disclosed to the grievant. In a forceful rebuke, the arbitrator ruled that the employer's covert human resources strategy violated due process under the contract.

In this case the Hospital denied [Grievant] the opportunity to review the notes which [her supervisor] took at the counseling sessions and then placed in her “shadow” personnel file. It denied her the contractual
right to submit a written answer to [her supervisor's] notes. And it denied
her the contractual right to have the Hospital’s Personnel Director review any answer which she was contractually entitled to file.

The arbitrator ordered the employee to be reinstated and awarded back pay and benefits, and to convert the termination to a 10-day suspension.