By David Worley
I
n Federal Bureau of Prisons (130 LA 1745 (Szuter, 2012), a one-day suspension was overturned entirely based on the lengthy delay that elapsed between the time of the infraction and the time of the discipline. While the arbitrator concluded that just cause existed to discipline the employee for the infraction, he also concluded that the contract was violated by the 15 month delay in completing the investigation.
The arbitrator found that the grievant had explicitly violated a workplace rule when he impeded an investigation by tipping off a coworker (who was the subject of that investigation).The grievant was accused of obstructing the progress of an investigation of a co-worker. While the arbitrator found just cause existed, the discipline was nevertheless improper because of the unjustified delays. The CBA stated that all parties “endorsed the concept of timely investigations” but recognized that “circumstances and complexities of individual cases will vary.”
The arbitrator explained that the purpose of discipline was that it be corrective rather than punitive, and a long, unreasonable delay would preclude any corrective purpose. A delay of fifteen months was improper on its face, but could be rebutted by a showing of extenuating circumstances by the employer. However, the employer simply argued the delay did not harm the grievant.
The arbitrator, in interpreting the CBA and relevant decisions, found that the burden was on the employer to show the delay was for good cause, and not for the grievant to show they have been unjustly harmed. The employer made no showing to rebut the prima facie unreasonable delay as demonstrated by the 15 month elapsed time. Thus, he concluded that the discipline was “not for the efficiency of the service and not in compliance with the Master Agreement.”
The arbitrator noted that apart from the CBA language arbitration case precedent holds that the timeliness of an investigation is a part of the due process required by the “just cause” requirement. He summarized that case precedent:
Recall the Master Agreement incorporated the due process elements of just cause tradition in Art 31(a). Arbitral treatises make the timeliness of investigation “black letter law.” The elements that make up due process with respect to investigations are notice of the specific accusations; an opportunity to respond before the discipline; fairness of the process and timely employer action. “Again, no one would seriously argue that it is sound practice to drag one’s heels in making an investigation.” “Most arbitrators agree that an employer’s action in disciplining or discharging an employee must be timely — taken without undue delay after the incident or incidents relied upon by the employer in justifying its action.” Also: “[T]he strength of the case for discharging an employee decreases as the length of time since the misconduct involved increases.” Although the treatises expect that no serious person would defend this sort of delay, an entire jurisprudence has developed in federal sector arbitration in which disciplinary action taken by the Bureau of Prisons was overturned because of the length of time between the incident(s) and the date when disciplinary action was imposed.
So, while this contract has some nonspecific language regarding timeliness, the general concept of just cause also imposed a timeliness requirement as part of fundamental fairness and due process.
