Absenteeism and Incompetence: The Role of the Courts
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Description
Issues of absenteeism and incompetence are largely matters for arbitration and collective bargaining with, as Sam Kaynard points out, some assist from the NLRB. I propose in my remarks to discuss the role of the courts, focusing on whether the courts have created any impediment to management and union efforts to deal with these problems across the bargaining table or in the arbitral forum. I will conclude with some general observations on the problems addressed by my distinguished colleagues on this panel. There are several conceivable points of intersection with the courts: (i) judicial review of arbitration awards; (ii) judicial review of NLRB orders; (iii) litigation under Title VII of the Civil Rights Act of 1964, the Rehabilitation Act, the Age Discrimination in Employment Act, and a host of other federal and state anti-discrimination statutes; (iv) judicial expansion of the rights of employees in nonunion settings; and (v) judicial elaboration of the exclusive bargaining agent's duty of fair representation to all bargaining unit employees. In the brief time allotted, I propose to focus on the last two areas. With respect to the first area, I note only that after the Supreme Court's Steelworkers Trilogy, particularly United Steelworkers of America v. Enterprise Wheel & Car Corp., judicial oversight of arbitration awards is quite limited. As former Michigan Law School Dean Ted St. Antoine has written, the arbitrator is the parties' carefully selected private contract reader and dispute resolver whose award "should be treated as though it were a written stipulation by the parties setting forth their own definitive construction of the labor contract." Thus, it is not surprising that a court would rule, as the Third Circuit did recently, that an arbitrator does not overstep his authority in finding a discharge lacking in 'just cause" because post-discharge psychiatric evidence revealed that the employee had been suffering from emotional distress, even though the employer was unaware of the worker's problem at the time of the dismissal. ''Just cause" is an open-ended, malleable concept, the content of which is derived only in part from explicit contract language or the settled understandings of the parties. Real content is poured into the concept only during the arbitration itself. I do not treat developments under the antidiscrimination statutes because they will be covered in tomorrow's session of the Conference. These statutes do not, by their terms, prevent labor and management from taking effective measures to deal with absenteeism and incompetence. Each permits discharge for legitimate business reasons not motivated by any of the proscribed bases of discrimination. I realize, of course, that as a practical matter the costs of even baseless litigation may dampen management resolve to act, and that often the cases present "mixed motive" problems similar to those confronting the NLRB under its Wright Line doctrine. Having dwelled for too long on what will not be discussed, I turn to the rights of nonunion employees and the duty of fair representation issues.
Source Publication
Proceedings of New York University 35th Annual National Conference on Labor
Source Editors/Authors
Richard Adelman
Publication Date
1983
Recommended Citation
Estreicher, Samuel, "Absenteeism and Incompetence: The Role of the Courts" (1983). Faculty Chapters. 481.
https://gretchen.law.nyu.edu/fac-chapt/481
