LABOR ARBITRATORS' INFERENCE OF "PROGRESSIVE DISCIPLINE" IN JUST CAUSE CLAUSES: THE COURTS' VIEW

PERRY A. ZIRKEL

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DOI: 10.2190/2JGF-22CP-W4XN-KD6P

Abstract

It is not uncommon for arbitrators to infer a progressive, or corrective, discipline procedure as a prerequisite to or part of just cause. Often this reasoning results in a compromise, or split, award. The majority of courts have deferred to such inferences and awards by arbitrators, but a substantial minority have rejected the arbitral application of a progressive discipline requirement where it is not explicit in the collective bargaining contract. The likelihood of a court overturning such an award depends not only in the jurisdiction but also whether the parties have made their intent clear in the language of the contract and in their submission to the arbitrator.

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