by Barry Goldman
Somebody screwed up. That much was clear. A batch of parts that was supposed to go through process A was instead sent through process B. The parts had to be scrapped. The job was delayed by several days. The customer was furious. The boss called in the manager who was in charge of the plant at the time of the mix-up. The manager appeared at the meeting along with a representative. The boss asked for an explanation. The manager and his representative made their arguments. The boss determined the manager was at fault and imposed a two-week suspension without pay. The manager appealed the suspension, and the case went to arbitration.
At the hearing, the manager’s lawyer argued that the plant rules require an employee to be given 24 hours written notice before an investigative interview. Here, there was no written notice. The boss merely called the manager and told him to come to his office. Since the company failed to comply with the notice requirement, the lawyer argued, the investigative interview was improper, and the discipline was invalid.
The company argued that the manager had effectively waived the notice requirement. By appearing at the investigative interview with a representative and participating in the meeting, and by failing to request an adjournment or to raise the issue of notice, the manager had tacitly agreed to proceed without the notice required by the plant rules.
The purpose of the notice requirement, after all, is to ensure the employee has an opportunity to appear and present his case. The idea is simply to get everyone in the same room at the same time with the same agenda. Since the employee did appear and did present his case, the purpose of the rule was served. To invalidate the discipline on the grounds that the notice provision was violated would elevate form over substance.
The manager disagreed. The plant rules are there for a reason. They cannot just be swept aside whenever the company finds them inconvenient. The boss called the manager in to his office, and the manager went. He couldn’t simply refuse. If he had refused, he would have opened himself up to a charge of insubordination – refusal to obey a direct and lawful order from a superior. No one asked whether he waived the notice requirement. The subject never came up. Therefore, there was no waiver of the notice requirement in any meaningful sense. There is nothing unfair or improper about requiring the company to obey its own rules.
This isn’t really a case. It’s a tiny fraction of a case – a one-fact hypothetical. The idea is that it can serve as a simplified model of a judicial decision. Something like the role C. elegans plays in biology. The plant rules say an employee should be given 24 hours notice before an investigative interview. The manager wasn’t given any notice. What should happen? I haven’t said anything about whether the manager was harmed by not being provided notice of the investigative interview. Is there something he would have done differently if he had more time to prepare? I also haven’t said anything about whether he really is responsible for the mistake. I haven’t said anything about his previous record of service or his previous record of discipline. And I haven’t said anything about the appropriateness of the penalty. What has the company done in similar cases in the past?
I also haven’t mentioned that the people who run the plant are not the people who write the rules. The boss and the manager are “charged” with knowing the rules. That is, they are presumed to have read and understood them, but that is a legal fiction. In the real world, the folks in HR are likely to have some familiarity with the rules. The folks in the plant are not. It’s very likely no one gave any thought to the notice provision until the manager’s lawyer started to prepare his case.
All we have is a one-fact hypothetical. There is a rule. There has been a violation of the rule. What should be the result? It couldn’t be simpler. All you need to do is weigh the factors, balance the equities, and apply the law. My point is that reasonable people can disagree. Is the notice requirement a mere formality or is it an essential component of industrial due process? I hope I’ve shown there is nothing simple about that question. As I have been arguing in this space for the past two years, the “rule of law” is not much help. Reasonable people of good will, intelligent people with nothing to gain or lose, who are trying their best to follow the law and do the right thing could come out either way.
Now, instead of a simple case with one fact and an issue that no one (other than the parties themselves) cares about very much, consider a complicated situation with lots of facts and an issue that millions of people care about deeply. Consider, for example, the recent Supreme Court litigation about the Voting Rights Act. Or, zooming out even further, consider the relationship between the lower federal courts and the Supreme Court. This was the subject of two recent editorials in the New York Times. Thomas Edsal wrote The Supreme Court Has Finally Found a President It Likes, and Adrian Vermeule wrote Someone Is Defying the Supreme Court, But It Isn’t Trump. It is as though they are from different planets.
Edsal and Vermeule look at the same data – the same executive orders, the same restraining orders, the same emergency appeals, the same shadow docket rulings lifting those restraining orders – and they come to diametrically opposed opinions. Edsal thinks the Supreme Court has gone rogue. Vermeule thinks the lower courts have gone rouge. What is the truth?
The truth is where you stand depends on where you sit.
If Bernie Sanders had been elected president instead of Donald Trump, and he had appointed democratic socialists to the Supreme Court, the country would be having the same arguments, but the sides would be reversed. The progressives would be arguing that the lower courts have a duty to follow Supreme Court guidance. The conservatives would be arguing that only the heroic lower court judges stand between us and dictatorship. Both sides would argue that they alone support the rule of law.
By the same token, if I really and sincerely believed in my heart that the country should be run by patrician, white, male, Christian racists, I would side with the majority of the Court in the pending Voting Rights Act case. See Harry Litman on the subject. I understand my theory doesn’t account for Clarence Thomas, but I’m afraid no theory can account for Clarence Thomas.
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