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How and why labor arbitrators decide discipline and discharge cases. An empirical examination.

A statistical analysis of over 2,000 discipline and discharge arbitration decisions and the rationale given in those cases in which the discharge penalty was mitigated. Concepts such as the quantum of proof and reliance (or citation) of the “seven tests” of just cause are examined. Theodore J. St. Antoine examines The Common Law of the …

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The authors posit that there has been a shift, from (a) Arbitrators’ deference to an employer’s imposition of discharge absent arbitrariness or abuse of discretion to (b) the de novo review of whether the penalty was unfair, arbitrary or capricious (i.e., unreasonable) from the arbitrator’s perspective.

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An assessment of the relevance of the procedural due process criteria of Arbitrator Carroll Daugherty’s seven tests for just cause, and the “harmful error” standard of the Federal Civil Service Reform Act.

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An introduction to three articles: 1) “harmless error” vs. due process under the Dougherty seven tests; 2) the assertion that substantive due process requires “fairness”; 3) procedural due process and the Due Process Protocol.

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A survey of Academy members, concerning the circumstances under which they will mitigate discipline based upon the denial of due process.

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An examination of pre-disciplinary due process, due process in the arbitration hearing, and court rulings in cases where the arbitrators’ decisions were based upon due process alone, and did not address the merits. Recommendations are offered to arbitrators regarding the resolution of due process arguments.

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Investigatory due process and arbitration

Three of Arbitrator Carroll Daugherty’s seven tests of just cause pertain to predisciplinary due process, also referred to as investigatory due process. The three are (1) an effort to discover whether the employee committed the infraction (2) a fair and objective investigation by the employer, and (3) substantial proof of guilt by the official imposing …

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Arbitral discretion: The tests of just cause

Dunsford posits that Carroll Daugherty’s “seven tests” of just cause are misleading in substance and distracting in application, and disputes that the tests are part of the “common law” of arbitration: the tests were developed in the context of the railroad industry and ought not govern in the private sector, where arbitration hearings are de …

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