By Lee Hornberger
Introduction
This article will discuss how arbitrators, treatises, and courts have reviewed employer use of due process before imposing discipline on an employee under a collective bargaining agreement (CBA). The consensus is that employers should provide notice, conduct a fair and thorough investigation, and allow employees a meaningful opportunity to respond before imposing discipline. The pertinent due process questions include: Was the employee given a meaningful opportunity to tell the employee’s side of the story before discipline was imposed? Was there an adequate check against the possibility of an incorrect decision? Are the due process principles imbedded in the CBA?
—————
• St. Antoine, “The Common Law of the Workplace” (2d ed. 2005)
Concerning due process, St. Antoine, pp. 206 and 217-219, states:
§ 6.13 Notice of Charges and Hearing
Just cause requires that an employee being disciplined or discharged be given notice of the charges against him or her and a meaningful opportunity to be heard. …
§ 6.19 Remedies for Due Process Violations in General
When a due process guarantee of the contract (either one that is an inherent part of just cause, or one arising out of a specific contract provision) has been violated in a significant way, most arbitrators conclude that the violation will affect the degree of the penalty or other adverse employer action, and some arbitrators conclude that the violation will nullify the penalty entirely.
• Elkouri & Elkouri, “How Arbitration Works” (8th ed. 2016)
Elkouri & Elkouri, p. 15-49, states, “Industrial due process … requires management to conduct a reasonable inquiry or investigation before assessing punishment.” The issue of due process and following correct procedures can impact on just cause and the amount of discipline, if any, that should be approved or imposed. Id. at 15-47 to 15-50. Arbitrators will, in many cases, refuse to uphold the employer’s action where the employer failed to fulfill some procedural requirement specified by the CBA. Id.
• Abrams, “Inside Arbitration” (2013)
Abrams, p. 211, states:
… [T]he concept of “due process” is inherent in the just cause provision.
… [a]arbitrators prefer seeing evidence that management … offered the accused employee the opportunity to contribute before the investigation hardened into a decision. A discharge followed by an investigation obviously puts the cart before the horse. An employer need not keep an employee at work, but there is no obvious reason why it cannot suspend the employee pending investigation.
• Nolan, “Labor and Employment Arbitration” (1999)
Arbitrators “often overturn otherwise valid discharges where the employer has denied the employee those [due process] protections.” Nolan, pp. 205 to 206.
—————
Federal courts of appeal
Federal courts have held that due process applies to “just cause” discharge cases. Federated Dep’t Stores v. United Food & Commercial Workers Union, Local 1442, 901 F.2d 1494, 1496 (9th Cir. 1990), held that the arbitrator appropriately determined due process to be a component of good cause for discharge. Federated Dep’t Stores said,
“In Chauffeurs, Local Union No. 878 v. Coca-Cola Bottling Co., 613 F.2d 716 (8th Cir.), cert. denied, 446 U.S. 988 … (1980), the Eighth Circuit … noted that ‘arbitrators have long been applying notions of “industrial due process” to “just cause” discharge cases.’ Id. at 719. In Coca-Cola Bottling Co., the arbitrator found that despite the employee’s dishonesty, the lack of procedural fairness afforded to him by the company fell short of the just cause standard. … Coca-Cola Bottling Co. did not provide the employee an opportunity to tell his side of the story prior to termination. Drawing upon scholarly articles which studied arbitration awards, the court found that an arbitration award that interpreted just cause to include due process ‘drew its essence’ from the agreement. Id. at 719-20. See also Super Tire Eng’r Co. v. Teamsters Local Union No. 676, 721 F.2d 121 (3rd Cir.1983) (enforcing an arbitrator’s award where employee was reinstated because he was not given a warning before his discharge for drinking alcoholic beverages during working hours), cert. denied, 469 U.S. 817 … (1984). We agree with the Third Circuit that because it is not unusual for an arbitrator to apply due process notions to just cause, the arbitrator derived his decision from the essence of the collective bargaining agreement.”
Chauffeurs, Local Union No. 878 v. Coca-Cola Bottling Co., 613 F.2d 716 (8th Cir.), cert. denied, 446 U.S. 988 (1980), said,
“ ... arbitrators have long been applying notions of ‘industrial due process’ to ‘just cause’ discharge cases. As Professor Summers noted, ‘[o]n the bare words “just cause” arbitrators have built a comprehensive and relatively stable body of both substantive and procedural law.’ Summers, ‘Individual Protection Against Unjust Dismissal: Time for a Statute’, 62 Va. L. Rev. 481, 500 (1976) (footnote deleted). Professor Summers also commented that the retention of the bare ‘just cause’ language in newly negotiated agreements is an indication of the widespread acceptance of arbitrators’ due process interpretations. Id. at 505. To a similar effect are the comments of Professor Getman: To enhance its chances of winning at arbitration, a company needs to establish careful disciplinary procedures consistent with arbitration awards defining the concept of just cause. Arbitrators generally insist on equal punishment for the same offense, and they require that employees be given advance notice of company rules and a chance to explain their behavior before they are disciplined. Getman, ‘Labor Arbitration and Dispute Resolution,’ 88 Yale L.J. 916, 921 (1979) …”
—————
Michigan Court of Appeals
An employer’s procedural violations can justify the arbitrator modifying discipline even when the underlying misconduct is proven. Michigan Association of Police v. Pontiac, 177 Mich. App. 752, 759-760 (1989), states:
“It is accepted that an arbitrator, if not specifically limited by the terms of the collective bargaining agreement, is free to fashion a remedy which considers the relative faults of the parties. See Zeviar v. Local No 2747, Airline, Aerospace Allied Employees, 733 F.2d 556 (CA 8, 1984) (employee reinstated but with only half of lost wages because she was also at fault), and Air Line Pilots Ass’n, International v. Eastern Air Lines, Inc, 632 F.2d 132 (CA 5, 1980) (reinstatement without full benefits upheld). In Brotherhood of Railway, Airline Steamship Clerks v. Kansas City Terminal Railway Co, 587 F.2d 903, 906-907 (CA 8, 1978), cert den 441 U.S. 907 … (1979), the court, quoting Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 233 (CA 5, 1970), stated the test as ‘not whether the reviewing court agrees with the Board’s interpretation of the bargaining contract, but whether the remedy fashioned by the Board is rationally explainable as a logical means of furthering the aims of that contract.’ …”
—————
Labor arbitration awards
Arbitrators have found that notice of charges, a fair investigation, and an opportunity to be heard are procedural due process protections inherent in the just cause standard.
Arbitrator Creo stated at Washington Penn Plastics, Performance Products Division, 2025 LA 19 (2025),
“… the issue of notice of charges, a fair investigation of the alleged infractions, and the opportunity to be heard as due process and procedural protections inherent in the just cause standard or as mandated by the collective bargaining agreement or law. …”
“Although the investigation may have been accurate in its factual findings and conclusions, and the Employer otherwise making a sound determination that just cause existed for the conduct of Grievant, the procedural requirements of the Agreement still must be followed. The Arbitrator does not find that a violation of procedural rights is harmless error or otherwise constitutes a de minimus violation. A due process violation of this nature that violates an express clause of the negotiated collective bargaining agreement requires remedial action.”
Arbitrator Goldstein indicated at State of Illinois, 136 LA 122, 129-130 (2015):
“[A]n employer’s obligation to a predisciplinary investigation is determined by context. … [T]he level of discipline involved is an important consideration … in determining whether the underlying investigation by the employer was fair and reasonable.”
United Parcel Service, 118 LA 1127, 1136 (Landau, 2003), sustained a grievance based on untimely notice where the CBA stated that the employer waived its right to discharge an employee if notice was not provided within 10 days.
Shaefer’s Ambulance Serv., 104 LA 481, 486 (Calhoun, 1995), indicates,
“Procedural fairness requires an employer to conduct a full and fair investigation of the circumstances surrounding an employee’s conduct and to provide an opportunity for him to offer denials, explanations, or justifications that are relevant before the employer makes its final decision, before its position becomes polarized.”
Arbitrators have declined to set aside discipline when a grievant suffers no prejudice following an employer’s non-compliance with procedural requirements. Jackson Memorial Hospital, 126 LA 723, 727 (Abrams, 2009) (declining to set aside discipline despite the employer’s failure to satisfy CBA deadlines because “there was no prejudice to the Grievant or the Union by the modest delay”); Argosy Gaming Co., 110 LA 540 (Fowler, 1998) (declining to overturn discharge where there was no showing of prejudice to the union or to the grievant by the absence of timely notice).
—————
Remedy
The arbitrator has the authority to grant an appropriate remedy when due process safeguards have been violated. Elkouri & Elkouri, pp. 18-1 to 18-14. Abrams, pp. 169 to 184.
St. Antoine states at pp. 218-220:
Ҥ 6.20 Alternative Sanctions Against Employers for Due Process Violations
“(1) When a specific due process guarantee of the contract has been violated in a significant way, but the relevant law or the contract does not permit an otherwise appropriate make-whole remedy for the employee, an alternative sanction will be imposed on the employer.
“(2) When a specific due process guarantee of the contract has been violated, but the violation is insufficient to affect the substantive rights of the employee in a significant way, an alternative sanction may be imposed on the employer.
“Comment:
“This section recognizes that positive contractual obligations are not to be ignored, even when their direct enforcement is blocked by a relevant law, or when a make-whole remedy is inappropriate because the due process violation was not sufficient to deny the employee substantial justice, or when there is a limitation on the arbitrator’s powers. The theory is that when the parties provide for a positive obligation, rather than hortatory or aspirational language, they intend to have that obligation enforceable through sanctions. In some instances, the violation is de minimis and does not require an alternative employer sanction.”
A split decision such as reinstatement with less than full back pay or some “back pay” without reinstatement, “… is not a compromise, but a clear reflection of the competing interests of the parties in the context of the case.” Abrams, p. 181.
When the parties agree to submit a matter to arbitration, they invest the arbitrator with discretion to resolve their dispute in a manner which is appropriate under the circumstances.
—————
Conclusion
Arbitral authority, judicial precedent, and treatises discuss the principle that due process is part of the just cause standard. To meet the just cause standard, employers should provide notice, conduct a thorough investigation, and allow employees a meaningful opportunity to tell their side of the story before imposing discipline. Depending on the CBA language, when procedural safeguards are ignored, arbitrators can reduce or overturn the discipline.
—————
Lee Hornberger is a senior member of Professional Resolution Experts of Michigan (PREMi), Michigan’s premier group of seasoned, invitation-only arbitrators and mediators. He is a member of the National Academy of Arbitrators and a Diplomate Member of The National Academy of Distinguished Neutrals. He is a former Chair of the Alternative Dispute Resolution Section of the State Bar of Michigan, Editor Emeritus of The Michigan Dispute Resolution Journal, former member of the State Bar’s Representative Assembly, former President of the Grand Traverse-Leelanau-Antrim Bar Association, and former Chair of the Traverse City Human Rights Commission. He has received the Distinguished Service Award from the State Bar’s ADR Section in recognition of significant contributions to the field of dispute resolution. He has received the George Bashara Award from the ADR Section in recognition of exemplary service. He has received Hero of ADR Awards from the ADR Section.
He holds his B.A. and J.D. cum laude from the University of Michigan and his LL.M. in Labor Law from Wayne State University.
His website is https://www.leehornberger.com/.
Introduction
This article will discuss how arbitrators, treatises, and courts have reviewed employer use of due process before imposing discipline on an employee under a collective bargaining agreement (CBA). The consensus is that employers should provide notice, conduct a fair and thorough investigation, and allow employees a meaningful opportunity to respond before imposing discipline. The pertinent due process questions include: Was the employee given a meaningful opportunity to tell the employee’s side of the story before discipline was imposed? Was there an adequate check against the possibility of an incorrect decision? Are the due process principles imbedded in the CBA?
—————
• St. Antoine, “The Common Law of the Workplace” (2d ed. 2005)
Concerning due process, St. Antoine, pp. 206 and 217-219, states:
§ 6.13 Notice of Charges and Hearing
Just cause requires that an employee being disciplined or discharged be given notice of the charges against him or her and a meaningful opportunity to be heard. …
§ 6.19 Remedies for Due Process Violations in General
When a due process guarantee of the contract (either one that is an inherent part of just cause, or one arising out of a specific contract provision) has been violated in a significant way, most arbitrators conclude that the violation will affect the degree of the penalty or other adverse employer action, and some arbitrators conclude that the violation will nullify the penalty entirely.
• Elkouri & Elkouri, “How Arbitration Works” (8th ed. 2016)
Elkouri & Elkouri, p. 15-49, states, “Industrial due process … requires management to conduct a reasonable inquiry or investigation before assessing punishment.” The issue of due process and following correct procedures can impact on just cause and the amount of discipline, if any, that should be approved or imposed. Id. at 15-47 to 15-50. Arbitrators will, in many cases, refuse to uphold the employer’s action where the employer failed to fulfill some procedural requirement specified by the CBA. Id.
• Abrams, “Inside Arbitration” (2013)
Abrams, p. 211, states:
… [T]he concept of “due process” is inherent in the just cause provision.
… [a]arbitrators prefer seeing evidence that management … offered the accused employee the opportunity to contribute before the investigation hardened into a decision. A discharge followed by an investigation obviously puts the cart before the horse. An employer need not keep an employee at work, but there is no obvious reason why it cannot suspend the employee pending investigation.
• Nolan, “Labor and Employment Arbitration” (1999)
Arbitrators “often overturn otherwise valid discharges where the employer has denied the employee those [due process] protections.” Nolan, pp. 205 to 206.
—————
Federal courts of appeal
Federal courts have held that due process applies to “just cause” discharge cases. Federated Dep’t Stores v. United Food & Commercial Workers Union, Local 1442, 901 F.2d 1494, 1496 (9th Cir. 1990), held that the arbitrator appropriately determined due process to be a component of good cause for discharge. Federated Dep’t Stores said,
“In Chauffeurs, Local Union No. 878 v. Coca-Cola Bottling Co., 613 F.2d 716 (8th Cir.), cert. denied, 446 U.S. 988 … (1980), the Eighth Circuit … noted that ‘arbitrators have long been applying notions of “industrial due process” to “just cause” discharge cases.’ Id. at 719. In Coca-Cola Bottling Co., the arbitrator found that despite the employee’s dishonesty, the lack of procedural fairness afforded to him by the company fell short of the just cause standard. … Coca-Cola Bottling Co. did not provide the employee an opportunity to tell his side of the story prior to termination. Drawing upon scholarly articles which studied arbitration awards, the court found that an arbitration award that interpreted just cause to include due process ‘drew its essence’ from the agreement. Id. at 719-20. See also Super Tire Eng’r Co. v. Teamsters Local Union No. 676, 721 F.2d 121 (3rd Cir.1983) (enforcing an arbitrator’s award where employee was reinstated because he was not given a warning before his discharge for drinking alcoholic beverages during working hours), cert. denied, 469 U.S. 817 … (1984). We agree with the Third Circuit that because it is not unusual for an arbitrator to apply due process notions to just cause, the arbitrator derived his decision from the essence of the collective bargaining agreement.”
Chauffeurs, Local Union No. 878 v. Coca-Cola Bottling Co., 613 F.2d 716 (8th Cir.), cert. denied, 446 U.S. 988 (1980), said,
“ ... arbitrators have long been applying notions of ‘industrial due process’ to ‘just cause’ discharge cases. As Professor Summers noted, ‘[o]n the bare words “just cause” arbitrators have built a comprehensive and relatively stable body of both substantive and procedural law.’ Summers, ‘Individual Protection Against Unjust Dismissal: Time for a Statute’, 62 Va. L. Rev. 481, 500 (1976) (footnote deleted). Professor Summers also commented that the retention of the bare ‘just cause’ language in newly negotiated agreements is an indication of the widespread acceptance of arbitrators’ due process interpretations. Id. at 505. To a similar effect are the comments of Professor Getman: To enhance its chances of winning at arbitration, a company needs to establish careful disciplinary procedures consistent with arbitration awards defining the concept of just cause. Arbitrators generally insist on equal punishment for the same offense, and they require that employees be given advance notice of company rules and a chance to explain their behavior before they are disciplined. Getman, ‘Labor Arbitration and Dispute Resolution,’ 88 Yale L.J. 916, 921 (1979) …”
—————
Michigan Court of Appeals
An employer’s procedural violations can justify the arbitrator modifying discipline even when the underlying misconduct is proven. Michigan Association of Police v. Pontiac, 177 Mich. App. 752, 759-760 (1989), states:
“It is accepted that an arbitrator, if not specifically limited by the terms of the collective bargaining agreement, is free to fashion a remedy which considers the relative faults of the parties. See Zeviar v. Local No 2747, Airline, Aerospace Allied Employees, 733 F.2d 556 (CA 8, 1984) (employee reinstated but with only half of lost wages because she was also at fault), and Air Line Pilots Ass’n, International v. Eastern Air Lines, Inc, 632 F.2d 132 (CA 5, 1980) (reinstatement without full benefits upheld). In Brotherhood of Railway, Airline Steamship Clerks v. Kansas City Terminal Railway Co, 587 F.2d 903, 906-907 (CA 8, 1978), cert den 441 U.S. 907 … (1979), the court, quoting Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 233 (CA 5, 1970), stated the test as ‘not whether the reviewing court agrees with the Board’s interpretation of the bargaining contract, but whether the remedy fashioned by the Board is rationally explainable as a logical means of furthering the aims of that contract.’ …”
—————
Labor arbitration awards
Arbitrators have found that notice of charges, a fair investigation, and an opportunity to be heard are procedural due process protections inherent in the just cause standard.
Arbitrator Creo stated at Washington Penn Plastics, Performance Products Division, 2025 LA 19 (2025),
“… the issue of notice of charges, a fair investigation of the alleged infractions, and the opportunity to be heard as due process and procedural protections inherent in the just cause standard or as mandated by the collective bargaining agreement or law. …”
“Although the investigation may have been accurate in its factual findings and conclusions, and the Employer otherwise making a sound determination that just cause existed for the conduct of Grievant, the procedural requirements of the Agreement still must be followed. The Arbitrator does not find that a violation of procedural rights is harmless error or otherwise constitutes a de minimus violation. A due process violation of this nature that violates an express clause of the negotiated collective bargaining agreement requires remedial action.”
Arbitrator Goldstein indicated at State of Illinois, 136 LA 122, 129-130 (2015):
“[A]n employer’s obligation to a predisciplinary investigation is determined by context. … [T]he level of discipline involved is an important consideration … in determining whether the underlying investigation by the employer was fair and reasonable.”
United Parcel Service, 118 LA 1127, 1136 (Landau, 2003), sustained a grievance based on untimely notice where the CBA stated that the employer waived its right to discharge an employee if notice was not provided within 10 days.
Shaefer’s Ambulance Serv., 104 LA 481, 486 (Calhoun, 1995), indicates,
“Procedural fairness requires an employer to conduct a full and fair investigation of the circumstances surrounding an employee’s conduct and to provide an opportunity for him to offer denials, explanations, or justifications that are relevant before the employer makes its final decision, before its position becomes polarized.”
Arbitrators have declined to set aside discipline when a grievant suffers no prejudice following an employer’s non-compliance with procedural requirements. Jackson Memorial Hospital, 126 LA 723, 727 (Abrams, 2009) (declining to set aside discipline despite the employer’s failure to satisfy CBA deadlines because “there was no prejudice to the Grievant or the Union by the modest delay”); Argosy Gaming Co., 110 LA 540 (Fowler, 1998) (declining to overturn discharge where there was no showing of prejudice to the union or to the grievant by the absence of timely notice).
—————
Remedy
The arbitrator has the authority to grant an appropriate remedy when due process safeguards have been violated. Elkouri & Elkouri, pp. 18-1 to 18-14. Abrams, pp. 169 to 184.
St. Antoine states at pp. 218-220:
Ҥ 6.20 Alternative Sanctions Against Employers for Due Process Violations
“(1) When a specific due process guarantee of the contract has been violated in a significant way, but the relevant law or the contract does not permit an otherwise appropriate make-whole remedy for the employee, an alternative sanction will be imposed on the employer.
“(2) When a specific due process guarantee of the contract has been violated, but the violation is insufficient to affect the substantive rights of the employee in a significant way, an alternative sanction may be imposed on the employer.
“Comment:
“This section recognizes that positive contractual obligations are not to be ignored, even when their direct enforcement is blocked by a relevant law, or when a make-whole remedy is inappropriate because the due process violation was not sufficient to deny the employee substantial justice, or when there is a limitation on the arbitrator’s powers. The theory is that when the parties provide for a positive obligation, rather than hortatory or aspirational language, they intend to have that obligation enforceable through sanctions. In some instances, the violation is de minimis and does not require an alternative employer sanction.”
A split decision such as reinstatement with less than full back pay or some “back pay” without reinstatement, “… is not a compromise, but a clear reflection of the competing interests of the parties in the context of the case.” Abrams, p. 181.
When the parties agree to submit a matter to arbitration, they invest the arbitrator with discretion to resolve their dispute in a manner which is appropriate under the circumstances.
—————
Conclusion
Arbitral authority, judicial precedent, and treatises discuss the principle that due process is part of the just cause standard. To meet the just cause standard, employers should provide notice, conduct a thorough investigation, and allow employees a meaningful opportunity to tell their side of the story before imposing discipline. Depending on the CBA language, when procedural safeguards are ignored, arbitrators can reduce or overturn the discipline.
—————
Lee Hornberger is a senior member of Professional Resolution Experts of Michigan (PREMi), Michigan’s premier group of seasoned, invitation-only arbitrators and mediators. He is a member of the National Academy of Arbitrators and a Diplomate Member of The National Academy of Distinguished Neutrals. He is a former Chair of the Alternative Dispute Resolution Section of the State Bar of Michigan, Editor Emeritus of The Michigan Dispute Resolution Journal, former member of the State Bar’s Representative Assembly, former President of the Grand Traverse-Leelanau-Antrim Bar Association, and former Chair of the Traverse City Human Rights Commission. He has received the Distinguished Service Award from the State Bar’s ADR Section in recognition of significant contributions to the field of dispute resolution. He has received the George Bashara Award from the ADR Section in recognition of exemplary service. He has received Hero of ADR Awards from the ADR Section.
He holds his B.A. and J.D. cum laude from the University of Michigan and his LL.M. in Labor Law from Wayne State University.
His website is https://www.leehornberger.com/.
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