Alaska Employment Law

Anchorage arbitrator Robert Landau has issued two opinions in discharge arbitrations.  Both arose in Outside arbitrations.

Burden of proof:  Landau holds the employer to a clear and convincing standard in certain discharge cases.

where an employee is discharged for improper or reprehensible personal conduct that, if sustained, could detrimentally affect his future employability, most arbitrators, including this arbitrator, have held that management must prove its case by more than a mere preponderance of the evidence, namely by clear and convincing evidence.  A heightened standard of proof is also justified in discipline cases where the employee has a lengthy and satisfactory record of service. 

In a case where the employee had 33 years of satisfactory service and was fired for verbal altercations with a customer, Landau, thus, required clear and convincing proof.  Landau sustained the grievance, i.e., reversed the discharge.  He also held that the customer’s cell phone video and written statement were excludable from arbitration under the CBA, which barred witnesses who hadn’t testified at a third step hearing from participating at the arbitration.  

ATU Local 1700 & Greyhound Lines, 126 LA 522   (Landau, Robert, Arb. Oct. 16, 2009)

Severity of discipline: Landau sustained the grievance, and reduced the penalty, of a negligent employee where the employee’s failure (to close a water valve) wasn’t repeated and was only one of several causes of a shutdown, the employee had 31 years of satisfactory work history, and the employer hadn’t discharged a similarly-situated employee.  Landau reduced the sanction to 24 hours off without pay. 

U S Magnesium & USW Local 8319, 126 LA 1572 (Landau, Robert, Arb. June 15, 2009)

Landau’s resume, with a comprehensive list of his published opinions, is here.