Alaska Employment Law

Arbitrator Robert Landau has denied the grievance of an Alaskan utility worker who lost his job for fighting with his supervisor.  The employee alleged that his attack was provoked, and excused, by his supervisor’s pattern of harassment.  Landau did grant the employee’s related grievance concerning a seniority award.  In the course of the opinion, Landau resolved a number of other issues commonly seen in arbritrations.

Landau held:

Burden of proof:

In discipline cases under a collective bargaining agreement, the employer bears the burden of proving just cause for disciplinary action and that the level of discipline imposed was appropriate. The union or employee bears the burden of proving any affirmative defenses, including provocation or disparate treatment, and any mitigating factors.  In cases where the employee’s alleged offense would constitute a serious breach of law or would be viewed as moral turpitude sufficient to damage the employee’s reputation, most arbitrators require a higher quantum of proof, typically expressed as “clear and convincing evidence.”  While in rare cases some arbitrators have applied the criminal law standard of proof “beyond a reasonable doubt,” most arbitrators have found that the “beyond a reasonable doubt” standard has no place in an informal dispute resolution process like labor arbitration.

This case involves an alleged unprovoked assault by an employee on his supervisor at the workplace. Because this is a serious charge of misconduct for which the employee was discharged, the arbitrator finds that a higher standard of proof should be required. However, because this is not a criminal proceeding and the Grievant is not subject to criminal penalties or incarceration, the criminal law standard of proof beyond a reasonable doubt is inapplicable and the appropriate standard of proof is the “clear and convincing evidence” standard.

Defense of provocation:

An employee who responds to the words or actions of another employee with violence is viewed as the aggressor and may be disciplined for his actions.  Provocation, however, may be a mitigating factor in determining the severity of discipline.  The mitigating factor of provocation cannot be used, however, if the employee has had time to cool off; discipline is usually mitigated only if the employee’s response is immediate. 

Seriousness of fighting:

There are few examples of misconduct in the workplace that are more serious than an employee physically attacking his supervisor in front of other employees.

Employee’s record:

[The employee’s] 30 years of employment is a valid mitigating factor. However, [the employee] has a prior disciplinary record that includes three suspensions between 1999 and 2002. While the Union argues that [the employee’s] previous discipline is more than five years old and should be disregarded, the Union cannot have it both ways by crediting [the employee’s] 30 years of service while ignoring his prior discipline. The prior disciplinary suspensions, which involved insubordination and making a false statement, are significant enough that they effectively offset any mitigation based on [the employee’s] longevity on the job. Although the Union may be correct that, given [the employee’s] age and length of service, his discharge amounts to “economic capital punishment,” it is equally correct to observe that [the employee] committed what could properly be described as a “capital offense” by physically assaulting his supervisor at the workplace in front of other employees.

Past practice:  

A “past practice” is a pattern of prior conduct consistently undertaken in recurring situations so as to evolve into an understanding of the parties that the conduct is the appropriate course of action.  The basic elements of past practice are (1) clarity and consistency of the pattern of conduct; (2) longevity and repetition of the activity; (3) acceptability of the pattern; and (4) mutual acknowledgment of the pattern by the parties.

IBEW Local 1547 & Golden Heart Utilities,  36 LAIS 96, 108 LRP 27009  (Landau, Rob’t, Arb. Feb. 12, 2008)(citations omitted)

Jake Metcalfe, Local 1547’s General Counsel, represented the union.  William Schendel represented the employer.