One of the primary purposes of collective bargaining is to modulate the relationship between employer and employee. Central to the established labor-management relationship is the contractual agreement by and between employees — via their representative labor organization — and their employer. In its essence, a collective bargaining agreement (or contract) is the expression of how the parties wish to conduct the employment relationship and sets forth those rights and responsibilities the employees and employer have deemed to be critical to their interests. 

Why is Discipline a Feature of Collective Bargaining?
In general terms, labor arbitration cases are viewed as falling into one of two major categories: contract interpretation or discipline & discharge. In actuality, though, all disciplinary cases brought to labor arbitration are ultimately matters of contract interpretation, since the rules that must apply are framed by the terms of the parties’ collective bargaining agreement and their bargaining history.

Matters of employee discipline are among the principal features of collective bargaining. This is because disciplinary action affects many of the most closely held interests of both the employer and employee. Most prominent are the employer’s right to impose disciplinary action to ensure efficiency and economy of operation, mitigate risk, and maintain order in the workplace; and employees’ equally vital interests in continued employment and the benefits to be gained thereby, in fair treatment and in clarity of expectations. 

Collective bargaining is uniquely suited to ensuring these reasonable interests, expectations and rights are accounted for. Employees and employers exert their respective power throughout the collective bargaining process, first by agreeing to mutually acceptable contract terms and then by applying and enforcing those terms in the course of doing business. Their agreements and actions reflect their mutual and disparate goals, their considerations of the characteristics of their industry, the political and social environment in which they operate, the peculiarities of their own labor-management relationship and their shared priorities. 

In his book, Discipline: Policies and Procedures, James R. Redeker, a recognized lecturer and legal practitioner in the field of labor-management relations, wrote: “When an employer offers work for pay and an employee accepts pay for work, a contract is established which consists of the perceptions of each of the other’s rights and expectations and an acceptance of the responsibility to fulfill those expectations. If the commitment or understanding of either party is lacking, mistaken or incomplete, the contract is destined for breach, and an unproductive and antagonistic atmosphere is almost a certainty. Consequently, the establishment of a harmonious and productive relationship would seem to depend, in the first instance, upon the conscious awareness of each party of the expectations, responsibilities, and rights of the other. Such an awareness is produced most frequently by the clear statement and delineation of these rights and responsibilities in either written company policies or a negotiated labor agreement. The absence of such writing leaves to chance the true nature of the bargain struck…”¹

Here, Redeker points to an indispensable benefit which accrues to parties involved in collective bargaining, namely the security of knowing what to expect, despite their disparate interests or desires. Employees are clear as to the expectations and standards to which they are held and under what conditions their employment may be sustained or thwarted. Employers are clear as to what they must provide in return for employees’ service and under what conditions they may justifiably impact individuals’ employment via disciplinary action. Parties who have codified within their collective bargaining agreements those terms and conditions they deem mutually agreeable gain additional benefits:

• Standards and processes for disciplinary action are clear and are likely to be be viewed as fair by both parties.  
• Adherence to the negotiated standards is predominant; arbitrary or discriminatory disciplinary practices are less likely to prevail. 
• Employee confidence in collective bargaining as a means for supporting for their needs in the workplace is strengthened.
• Employers have the ability to manage the work and the working environment as needed, without undue hindrance. 
• Parties are assured of the ability to resolve disciplinary disputes and appeals (via their negotiated grievance procedure).
• Policies, rules and expectations can be tested and revised as needed based on feedback emitted from the labor-management relationship.

How is Discipline Treated Within the Collective Bargaining Context?
Within the context of collective bargaining, employers and employees understand they have a mutual obligation to honor all of the agreements that have been made. They also understand that their respective interests are best met when the rights of each are respected.

A determination as to whether disciplinary action taken against a represented employee was proper or improper cannot effectively be made without considering all applicable contract terms. This is how the collective bargaining system accounts for the interests and priorities of those most affected by the disciplinary action and the circumstances which gave rise to it. It ensures an employee or employer will not be deprived of rights to which they are entitled under the terms of their collective bargaining agreement, and upon which they have a lawful right to rely. As such, parties are compelled to consider several factors, including:

• The status of the employer (whether a private entity or government agency) and that of the impacted employee (e.g probationary, regular, full- or part-time, etc.).
• Whether there is proof that a valid rule or expectation has been breached.
• Nature of the conduct.
• Impact on the workplace.
• Impact to the employer’s interests.
• Consequences and costs of the activity.
• Whether the action was deliberate, negligent or inadvertent.
• The rules, policies or expectations in existence. 
• Requirements of the collective bargaining agreement. 
• Equity in enforcement of rules, policies or expectations.
• Clarity, relevance and communication of the rules.
• The employee’s work history.
• Actions of management. 
• Due process requirements.
• Applicable employment and anti-discrimination laws and policies. 
• Other considerations peculiar to the, sector, industry, environment, or the parties’ labor-management relationship.

Those factors deemed most important for their particular relationship and circumstances are typically outlined in the parties’ collective bargaining agreement. 

The quality and effectiveness of the terms to which the parties have agreed are often tested when employers act on their right to impose disciplinary action, as parties may disagree as to the interpretation or application of relevant contract terms. Most often, these disputes are resolved between the parties using the grievance procedures outlined in their contract. Occasionally, matters must be submitted for adjudication by a neutral third party. Under the terms of most collective bargaining agreements, this will be a qualified arbitrator selected by the mutual agreement of the parties.

Arbitrators recognize that disciplinary provisions in a collective bargaining agreement do not expressly contain, or attempt to contain, all contractual requirements that must apply to disciplinary action. As with any other contract interpretation case, the disciplinary action under appeal must be considered in light of the whole instrument, since relevant points of consideration may be tied to rights and obligations expressed elsewhere in the contract. Examples include provisions affecting an individual’s employment status, due process requirements and obligations of the employer. Even where parties have not articulated specific approaches or philosophies regarding the administration of discipline, they would nonetheless have expressed, in the course of their collective bargaining interactions, those rules and standards they deem acceptable. In other words, the parties’ bargaining history becomes the standard against which the appropriateness of a particular disciplinary action is measured.

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1 Redeker, James R., Discipline: Policies and Procedures (1983)

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