Are the New Orleans Saints Players in the cradle of industrial due process?

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1.  Notice of the charges – Industrial due process accords union employees the right to be informed of the specific charges against them before the employer determines disciplinary action. This notice should describe the type, scope and nature of the charges, and include facts sufficient to support the reasons discipline would be appropriate.

2.  Meaningful Opportunity to Respond – Generally, arbitrators recognize the accused employee’s right to be heard before discipline is imposed, although some arbitrators require a showing that the grievant was prejudiced by denial of this opportunity.

Some arbitrators view the failure to interview the accused as a fatal flaw in the employer’s defense to its disciplinary decision. One arbitrator found that, even where the accused employee did not offer an explanation for her conduct, the employer had an obligation to investigate and to take further action to elicit the accused employee’s side of the story.

A flawed process of denying an accused employee the right to be heard can create a flawed result. The employer who makes a disciplinary decision without hearing the accused employee’s side of the story may be acting on assumptions and incomplete facts.

To give audience to the accused only after discipline has been determined unfairly places the employee “in the unfortunate position of trying to change the employer’s mind rather than explaining her side of the story before management’s mind becomes entrenched in a conclusion – an often hopeless battle.”

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