Problem with Arbitration?

What could happen if the arbitrator doesn't review the record on a 
termination but instead just accepts the previous record since 
the union didn't take any of the former steps of progressive 
discipline to arbitration.

Working out this fictitious but relevant scenario, it 
could go as follows:

Since management only needs to document that they issued a 
verbal warning on such and such a date. a verbal warning
is issued stating that an employee is put on the first step of 
progressive discipline because the employee didn't smile
on such a data and time when the specifically named
supervisor went by. The verbal warning similarly states
that if there isn't immediate and sustained improvement
in the performance of the employee that the employee
would be subjected to further steps of progressive discipline

Since the union policy does not grievance verbal warnings, 
the union takes no steps to establish the fact that there is no 
obligation that has ever previously been imposed that an 
employee has to smile when a supervisor comes by. Nor does the 
union establish the fact that this is not rule or practice that 
any other employee is held to.

A few months later, management issues a written warning claiming
2 dates and times that two different supervisors went by the 
employee and the union member didn't smile. The dates and time
are not even times that any supervisor went by. But that doesn't
matter as the union doesn't grievance this either. The written
warning further claims that management has given the employee
counselling about the problem and has provided help for the union
member to learn how to smile when a supervisor goes by. None
of this counseling ever happened. Again the union member is warned
that further discipline will follow if there is not immediate
and sustained improvement in the union member's performance.

The union doesn't file a grievance. This time the union doesn't
file a grievance because the delegate has to go on family leave 
and no other union delegate is available. (However, as it turns
out unless the union is willing to go to arbitration with the
grievance of a written warning, which it isn't, it wouldn't have
any effect on the outcome of the situation to have filed the 
grievance.) However, the union member writes a response to put
in the employee personnel folder since there was the desire to have
a grievance on the part of the employee.

Subsequently, the union member is suspended. One supervisor who
had just been hired but is now leaving, on his last day gives
the employee a letter stating that on such and such dates and 
times he asked her to smile and the union member didn't. The
employee is warned that the next step is termination if there
is not immediate and sustained improvement in performance. 
Also the claim is made that the employee doesn't follow directions
as the union member didn't smile when being told to do so by
the supervisor. None of the dates or times or incidents listed
on the suspension letter are accurate. The union member is told
that since the supervisor is leaving that day, that if the 
employee wants to file a 2nd grievance it has to be done immediately.
The contract provides that in the case of suspension or termination,
the employee is to have the right to a 2nd step grievance before
the suspension or termination.

At this step the union member is accompanied by a union delegate.
The union member agrees to the immediate step of a grievance
meeting even though there is no time to review notes to see if
the supervisor was even working on the dates and times the 
employee is accused of not smiling. Management rules against
the union member. 

This time the union does take the grievance over the suspension to 
the 3rd step. It is not heard for several weeks. When it is 
finally heard, the supervisor is no longer working at the place of
employment. Instead the head supervisor makes the case against the 
union member claiming that the former supervisor left notes which 
can substitute for the presence of the supervisor. Management refuses
to let the union member read a statement refuting the accusations,
and even the dates and times given. Also the union member's statement
would raise the question of whethere this is a commonly understood
practice that is required of other employees. 

The decision on the 3rd step grievance is issued. It states that 
everything that management has stated in the 3rd step hearing was
appropriate practice. And furthermore that it is appropriate to
require that employees smile when supervisors go by. There was 
no mention in the decision that this was not a practice that is 
applied to anyone else, or that it is a questionable requirement.

When this decision is received the union member requests that the union
take this decision to arbitration. The union member is told of a
series of steps that a union member must go through to request a 
3rd step grievance be taken to arbitration.

However, before the union member can learn further information 
about how to go through these required steps, the union member is
told to come to a meeting with management with a union delegate.
This is within a short period of time, a matter of weeks, after 
the 3rd step decision was issued by management.

At this meeting with management, a letter is read to the union member
listing a set of dates and times when particularly named supervisors
went by and the employee is accused of having failed to smile. 
The employee is told that there were specified dates and times when
management provided counseling but the union member did not improve,
despite many efforts of management to help. None of the details of
the letter for the termination are accurate nor is the statement about
counseling accurate as the supervisor never counseled the employee
on when and how to smile.

The employee is told the termination is effective immediately. That
if the employee wants to present a 2nd step grievance this must be
done immediately. The union member states the need to look over the 
letter and the dates and times listed and to be able to consult 
notes to be able to compare them before the grievance meeting and 
asks that the grievance meeting not be held till after lunch.

Management refuses, but says that after the termination, that the 
employee will be able to have a 2nd step grievance. The employee is
terminated.

Only after the termination is there any semblance a grievance hearing.
Again the union member is not allowed to raise the issues of the case.

The termination is upheld by management with a letter stating that 
the union member challenged management's right to manage in the 
3rd step and how to manage. The letter denying the 3rd step grievence
over the termination is not accurate to what happened during the 
hearing, but that is no different from anything else that happens
to this point.

The union agrees to take the termination to arbitration. However, the union
informs the employee that since the union did not take any of the 
previous steps of progressive discipline to arbitration, the arbitrator
will only rule on whether the dates and times stated in the termination
letter are accurate.

End of fictitious example.