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Often without attribution, the arbitration literature includes statements about how “most,” “many” or “some” arbitrators decide discipline and discharge cases. Elkouri & Elkouri is probably the best known source of such generalizations. Although statements like these are often consistent with conventional wisdom, empirical support is seldom provided. To illustrate, consider the first of three examples taken from the National Academy of Arbitrators’ The Common Law of the Workplace: Because industrial discipline is corrective rather than punitive, most arbitrators require use of progressive discipline, even when the collective agreement or employment contract is silent on the subject. Based on personal experiences, this statement rings true. But is it? Our new study of 2,055 discipline and discharge cases includes 454 decisions in which the arbitrator found just cause for a lesser discipline due to the presence of one or more mitigating factors. Using these data, Table 1 reports the results of two different tests of the referenced progressive discipline generalization in the Common Law of the Workplace. The first test involved computing the percent of the 454 decisions that mention a listed mitigating factor. (See Table 1, column 3.) In the second test, we computed the percent of all mitigations cited (810) that note a listed mitigating factor. (See Table 1, column 4.) As both tests show, the “lack of progressive discipline” was a major mitigating factor that lead to disciplinary reductions in 27.09 percent of all cases and in 15.19 percent of all mitigations cited. According to both tests, the dominant reasons arbitrators gave for reducing discipline were “punishment too severe for offense” (33.92 percent of all cases and 19.01 percent of mitigations cited) and “good work record” (32.60 percent of all cases and 18.27 percent of mitigations cited). Regardless of the test-measure used, the rank ordering of the relative importance of each mitigating factor remains the same.


Reproduced with permission. Bloomberg Law, Copyright 2022 by The Bureau of National Affairs, Inc. (800-372-1033)