Arbitration decisions: Are They in Compliance With The JUST CAUSE STANDARD - or is the Penalty Determined Under the JUST 'CAUSE Someone Dislikes You Standard?
For decades, professional arbitrators struggled to
This was a discharge case involving absenteeism and unsatisfactory work. Unfortunately, in this case, Arbitrator Daugherty ruled in favor of the employer; the union lost the case and the employee was fired. This historic case set the rules for Just Cause and is still being used today by employers,
Here are the "Seven Tests" as to whether the boss has used "just cause" in discipline and discharge cases.
* Our main contractual weapon in discipline and discharge cases is usually the requirement that the boss must have "just cause" (or "fair cause" or "proper cause") to take action against an employee. Even if these words are missing from the contract, many arbitrators use this standard, anyway.
* But, what is "just cause"? Simply put: it means the employer must have a reason (he or she must have "cause") for imposing discipline and the reason must be fair ("just").
* It is commonly accepted that there are seven tests as to whether the boss has used "just cause" in handing out discipline.
One of the main reasons workers join unions is to gain protection against unfair and unjust discipline that employers hand out. Stewards must be ready to handle all sorts of discipline cases, from warnings to
What is a "just cause" standard? It is commonly accepted that there are seven tests as to whether a boss has used "just cause" in handing out discipline. The Bureau of National Affairs lists them as follows:
Prior to imposition of discipline, employees must have notice of rules and expectations. The warning may be given orally or in printed form. An exception may be made for certain conduct, such as insubordination, coming to work drunk, drinking on the job, or stealing employer property, that is so serious that the employee is expected to know it will be punishable.
Example: If an employee is told to stop using vulgar language and told that if he continues he will be disciplined, that may be adequate warning. However if a boss comes up to an employee and says "I'm tired of your swearing, cut it out", and then the next day fires the employee for swearing again, that may not be adequate warning.
Was the employer’s rule reasonably related to (a) the orderly, efficient, and safe operation of the employer’s business, and (b) the performance that the employer should properly expect of the employee?
Example: A boss makes a rule that all employees must wear red tee shirts and they must be tucked in so they don't get caught in machinery. An employee is fired for wearing a blue tee shirt that was tucked in. Making a rule that tee shirts must be tucked in so they won't get caught in machinery may be reasonable and related to safety, but demanding the tee shirt be red isn't related to safety or efficiency.
Did the employer, before administering the discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule of management? The investigation normally should be made before the decision to discipline is made. Where immediate action is required, however, the best course is to suspend the employee pending investigation with the understanding that he will be restored to his job and paid for time lost if he is found not guilty.
Example: This is the most common form of discrimination. An employer decides to suspend Mary for taking too long at lunch, but lets the employees who eat lunch with a supervisor take extra time every day. This would not hold up. However, if the employer tells everyone that starting on Monday employees will be disciplined for taking too long at lunch and on Tuesday Mary comes back late and everyone else has been on time, she may be disciplined.
Here are some basic tips for stewards handling discipline and discharge cases:
* Use the "seven tests" as an outline. Did the employer meet the seven tests? Remember that just because an employer messes up on one of the seven tests, this doesn't mean we automatically win, but proving they screwed up helps a lot.
* Make sure that an employee's Weingarten rights aren't or weren't violated during the employer's investigation.
* Ask for all the employers’ notes and records they used to make a decision. Get any notes or records a foreman or supervisor might keep, even informal records. The union has a right to them. On the other hand the employer has no right to the notes or records that the union makes when investigating a case.
* Do a thorough investigation of the case. DON'T take the employers word on anything.
* In a grievance meeting make the employer prove their case first. Make them present all the facts and don't assume anything. Don't let the boss start the meeting by saying to the union, “OK tell me why I shouldn't fire Joe". Make the boss justify firing Joe.
* There are two parts to every discipline case. Did the employee violate a known rule and what should the punishment be? Sometimes we lose the first part but then we have to make sure the punishment fits the offense.
* If the employer refuses to back down from a written warning and the case doesn't merit arbitration make sure the employer receives from the union a written statement disputing the facts and the discipline. Have this letter also put into the employees personnel file.
In closing, we should all be aware of the JUST CAUSE principles; and we all need to know what PROGRESSIVE DISCIPLINE looks like.
Within any workers career they will face at least one episode that could be discipline. Has your supervisor discussed a matter with you that he or she has asked you to change? It may sound like a friendly suggestion; and it might be. But it also is Step one of Progressive Discipline.
http://www.ueunion.org/stwd_jstcause.html (includes cartoon)