The grievant was an 11 year employee at CMU holding the position of Senior Caretaker.  He normally worked 6:00 AM to 2:30 PM.  On October 19, 2006, he worked his normal shift and volunteered to work that evening to help clean up after a home CMU football game.  When the grievant was not seen by his supervisor working with the rest of the clean-up crew, the supervisor went looking for him.  The supervisor found him in his truck a distance away near a work shed the University owns.  The grievant was asleep and found at about 10:45 PM.  The grievant admitted immediately that he had accidentally fallen asleep waiting for the game to end and told the supervisor to dock him for his overtime pay up to that point and he would go over and start working.

The employer ultimately discharged the grievant explaining that they believe he deliberately we to the Varsity Softball Complex Area to “coop – up” and go to sleep.  The grievant explained that he went there to get his tools he would use from the shed and then go over to help clean up after the game had ended.  The grievant was a long term employee with only one prior written reprimand which was not for sleeping on the job.

There were two interesting issues regarding this case.  First the employer attempted to distinguish that this event was a deliberate act on the part of the grievant warranting discharge verses an inadvertent act which may result in a lesser discipline.  Secondly, the employer attempted to argue that there was no “just cause” language in the contract.  They went on to argue that because of no such language the arbitrator could not rule on the penalty issued or substitute his judgment for that of the employer.  In their argument they were trying to limit the arbitrator’s authority to only be able to rule on the grievant’s guilt or innocence of the action.  This is the very reason each contract should have some reference to “just cause” or discipline for “cause” language. 

In this case the arbitrator found that there was a reasonable explanation presented by the grievant for being at the location where he fell asleep.  The arbitrator concluded that the grievant’s action was an inadvertent one and that the employer failed to prove his act was deliberate.  This led the arbitrator to have to rule upon the penalty that was issued and the employer’s argument of no “just cause” language in the contract.

The employer’s Guide for Discipline was placed into evidence in this hearing.  It set out “progressive discipline” steps and did refer to “just cause.”  It went on to discuss a “common law” definition of “just cause” as “Appropriate Discipline” as follows:

Was the disciplinary action related to the seriousness of the offense, to the employee’s record, and to the employee’s level of responsibility within the University?  Generally, minor offenses and repeated occurrences should result in more severe disciplinary action.

The contract does not have a clear “just cause” reference stated the arbitrator.  However, he did note that in Section 17-4 it states that an employee may submit a grievance at the third step if he considers the discharge to be “improper.”  He also noted that in Section 16-2 it calls for the reinstatement of an “employee found to be unjustly suspended or discharged” (emphasis added).