Arbitration decisions: Are They in Compliance With The JUST CAUSE STANDARD - or is the Penalty Determined Under the JUST 'CAUSE Someone Dislikes You Standard?
If you are working in disciplinary hearings or 3020-a arbitration, or you want to appeal an arbitrator's decision, you should use JUST CAUSE in your argument.
Betsy Combier
The U.S.labor movement has secured a number of important rights for unionized workers. Among such rights, just cause provides important protections against arbitrary or unfair termination and other forms of inappropriate workplace discipline. Just cause has become a common standard in labor arbitration, and is included in labor union contracts as a form of job security. Typically, an employer must prove just cause before an arbitrator to sustain an employee's termination, suspension, or other discipline. Usually, the employer has the burden of proof in discharge cases or if the employee is in the wrong.
For decades, professional arbitrators struggled toreach consistent decisions in discipline cases, because they recognized that inconsistent results produced chaos in both the arbitration process and the work place. Finally, noted arbitrator Carroll R. Daugherty decided to take the bull by the horns by combining the many concepts employed by arbitrators in discipline cases into a single theory which he called “a sort of ‘common law definition” of just cause. It set out specific guidelines to be applied to the facts of any one case which we now refer to as the seven tests of just cause.
Here are the "Seven Tests" as to whether the boss has used "just cause" in discipline and discharge cases.
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 tosuspensions to firings. Stewards must be ready to deal with situations of gross discrimination by the boss on who gets disciplined, to dealing with union members who sometimes seem to go out of their way to get themselves fired.
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.
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.
Betsy Combier
JUST CAUSE FOR DISCIPLINE
Did You Know as a union member your employer can not discipline you or fire you without “Just Cause”?
The U.S.
Employees are expected to meet performance standards and behave appropriately in the workplace. Disciplinary or corrective action taken by the employer is supposed to be a process of communicating with the employee to improve unacceptable behavior or performance. There is a set of guidelines, called the “Seven Tests of Just Cause” that employers are expected to follow when imposing discipline; that Unions need to assure have been applied to their members; and that arbitrators use as a basis to form their decisions.
A LITTLE HISTORY:
For decades, professional arbitrators struggled to
The award by Arbitrator Daugherty which is generally recognized as the first decision to formally set out all of the seven tests of just cause was in the matter of Enterprise Wire Co. and Enterprise Independent Union and was issued March 28,1966 (46 LA 359).
You can read Daugherty’s full Arbitration Decision
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,labor unions , and arbitrators.
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,
DID THE EMPLOYER HAVE JUST CAUSE?
Using the Seven Tests
Here are the "Seven Tests" as to whether the boss has used "just cause" in discipline and discharge cases.
Issues
* 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.
* 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
Our main contractual weapon is often times summed up in one short sentence, "Employees shall be disciplined or discharged only for just cause". In some contracts the words used are "proper cause" or "fair cause". The importance of a sentence like this is that it binds the employer to imposing discipline not just for any reason (cause) but the reason has to be a "just" reason. Many arbitrators have gone so far as to hold all employers to a "just cause" standard, whether the contract uses the words or not.
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:
1. NOTICE – Was the employee adequately warned of the consequences of his conduct?
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.
2. REASONABLE RULES OR ORDERS – Was the employer's rule or order reasonably related to efficient and safe operations?
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.
3. INVESTIGATION – Did management investigate before administering the discipline?
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: The boss fires a worker for stealing and then demands evidence from the union that the worker isn't guilty. At the grievance meeting the boss admits he never investigated the incident, just took another employee's word. This probably wouldn't hold up. If the union has facts to prove the employee's innocence they should be presented to the boss, even though he failed to properly investigate the case.
4. FAIR INVESTIGATION - Was the investigation fair and objective?
Example: If an incident happened does the employer interview everyone present or only management people who were present. If the employer refuses to interview nonmanagement workers then the investigation may not be fair.
5. PROOF - Did the investigation produce substantial evidence or proof of guilt?
It is not required that the evidence be preponderant, conclusive, or "beyond reasonable doubt," except where the alleged misconduct is of such a criminal or reprehensible nature as to stigmatize the employee and seriously impair his chances for future employment.
Example: Here it is obvious that workers have fewer rights inside the workplace than they would have in civil court, but still the boss must have real evidence, not guesses. Again the boss cannot just try to make a worker prove his or her innocence, without presenting proof of guilt.
6. EQUAL TREATMENT - Were the rules, orders, and penalties applied evenhandedly and without discrimination?
If enforcement has been lax in the past, management cannot suddenly reverse its course and begin to crack down without first warning employees of its intent.
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.
7. PENALTY - Was the penalty reasonably related to the seriousness of the offense and the past record?
Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his or her service with the employer?
If employee A's past record is significantly better than that of employee B, the employer properly may give employee A lighter punishment than employee B for the same offense. The degree of discipline, is important because arbitrators want to ensure that the "punishment fits the crime." An employer's use of progressive discipline often gives the employer an advantage in arbitration.
Example: The classic example is two employees get in an argument and shove each other. One has 25 years service with a clean record. The other has 3 years service with lots of warnings and discipline. Based upon the workers seniority and records, the employer may give the older worker less punishment than the other worker.
Tips for Handling Discipline & Discharge Cases
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.
* Try to stop the employer from suspending or firing a worker. Try to get a cooling off period if necessary. The case becomes harder once a worker is out the door, now we not only have to fight about what happened but over back pay, etc.
* 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.
* 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.
SOURCES:
http://en.wikipedia.org/wiki/Just_cause"Categories: Employment
http://research.uiowa.edu/pimgr/?get=7steps
http://www.umass.edu/usa/justcause.htm
http://www.ueunion.org/stwd_jstcause.html (includes cartoon)
http://das.hre.iowa.gov/html_documents/ms_manual/11-10.htm
http://clear.uhwo.hawaii.edu/EnterpriseWire.html
http://en.wikipedia.org/wiki/Just_cause"Categories: Employment
http://research.uiowa.edu/pimgr/?get=7steps
http://www.umass.edu/usa/justcause.htm
http://www.ueunion.org/stwd_jstcause.html (includes cartoon)
http://das.hre.iowa.gov/html_documents/ms_manual/11-10.htm
http://clear.uhwo.hawaii.edu/EnterpriseWire.html
Just Cuz Or Just Cause Discipline?
Just Cuz' I want to is a sufficient reason for discharge in an at-will employment situation. In the public sector, "Just Cause" is a very common element of employment and is becoming more prominent in private sector employment. Some states integrate just cause into the fabric of the legal elements in "for cause" termination. In a true labor/employment written contract, when "just cause" is included as a basis for termination it looks something like this:"An employee may only be disciplined or discharged for just cause."
Seems simple right? Not necessarily. Just cause originates from a labor employment arbitration by Arbitrator Carroll R. Daugherty (Enterprise Wire Co., 46 LA 359(1966)) wherein he synthesized then notions of just and proper cause for discipline and discharge that had been used in arbitration decision in previous decades. Enterprise Wire was an absenteeism case. Arbitrator Daugherty stated seven questions that an employer must ask when determining whether to discipline or discharge an employee. If the employer answers "No" to any of the seven questions then they do not have "just cause" for their action and the arbitrator or judge would overturn the employer's decision.
All public sector employees are entitled to "due process" for discipline and discharge whether stated in the organization or entities policies and procedures. Private sector employees in "At Will Employment" states are not technically entitled to "due process" because they can be discharged for any reason or no reason. Personally, I believe "due process" is always a good idea, but employers can make that call based on their risk aversion tolerance.
You may be asking, "What is due process?" Well, arbitrators and lawyers struggled with that question and it exceeds the scope of this article, suffice it to say that "Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person." Notice that the definition includes State actors. Some have interpreted this to mean that employers who are not a state or governmental entity are not required to provide "due process." That is generally true, but private employers need to be aware, that even though due process generally refers to protections provided against State action, the states have often written into statutes rights that employees who work in their state have. This means that even in "at-will employment" states there may be occasions when an employer is expected to provide "due process." Arbitrator Daugherty incorporated "due process" into the first four questions of his seven question test (see below 1-4).
Many private sector employers who have employee handbooks with provisions that state employees will only be disciplined for "cause", "good cause", or "good and just cause" have been surprised to learn when sued for wrongful termination that their handbook is interpreted to provide discipline and discharge only for "just cause." You may also have policies or provisions that refer to "progressive discipline." These too have resulted in interpretations that the employee was entitled to due process and in some instances "just cause." If you have such provisions in your employee handbooks you should have them reviewed by your legal counsel practicing in your home state. You may want to revise those provisions of your handbook to avoid the "just cause" trap.
What about "due process?" A simple way of thinking about due process is basic fairness. Does an employee have a right to know what is expected of them? Does an employee have a right to know what they are being accused of? Does an employee have a right to a fair investigation of charges? Does an employee have a right to provide an answer to accusations made against them or provide evidence when they are being disciplined or terminated for misconduct? They may or they may not, depending on your state laws, employment policies, procedures, or employee handbooks. You may want to ask yourself how you would like to be treated as a private sector employee in response to each of these questions. As a public sector employee you have these rights constitutionally.
Enter Arbitrator Daugherty and his decision in a case involving a non-state employer in private sector. Daugherty created the seven tests of just cause that incorporate both "due process" and procedural safeguards for employees subjected to discipline as a basis for arbitrator's to decide cases involving discipline and discharge. The seven tests have near universal acceptance in employee discipline and discharge cases for cause. Here they are:
1. NOTICE: Did the employer give to the employee forewarning or foreknowledge of the possible or probable consequences of the employee's disciplinary conduct?
Translation: Did you tell them if you do that, or don't do that you can be disciplined or possibly fired? There are some things that are common knowledge and you don't have to have a workplace rule, for example, "Don't steal or you may be disciplined. Don't molest children at work. Etc.
2. REASONABLE RULE OR ORDER: Was the Employer's rule or managerial order reasonably related to (a) the orderly efficient, and safe operation of the Employer's business, and (b) the performance that the Employer might properly expect of the employee?
Translation: Do you have a sound business basis for your work rule and are your performance expectations for the employee reasonable in your industry or business?
3. INVESTIGATION: 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 or order of management?
Translation: Did you shoot first and ask questions later or did you ask all the questions necessary to fairly discover the facts of what happened before shooting? Did you attempt to find out whether the employee actually knew what the rule was they supposedly violated, or if they were actually the one who violated it. Assumptions are deadly! Facts are your friend!
4. FAIR INVESTIGATION: Was the Employer's investigation conducted fairly and objectively?
Translation: "I got you now!"--Probably does not indicate a fair investigation. A fair investigation means that you have objectively sought out all of the information you would want a decision maker to have if you were the one being considered for discipline. If ten people were involved, you should speak to all ten people before making a decision. Facts are your friend!
5. PROOF: At the investigation, did the decision maker obtain substantial evidence or proof that the employee was guilty as charged?
Translation: A gut feeling doesn't work. Let's take a look at Indiana University Human Resources application of substantial proof:
"Substantial evidence or proof of guilt must exist to clearly establish that the employee did violate the work standard or rule. Evidence can be documented or witnessed it cannot be rumors, unsupported accusations, or superficial allegations. "Substantial" is determined by what is called the "reasonable person" standard: given the available information, how would a reasonable person evaluate it? If the evaluation falls short of this standard, return to the investigation or drop the issue."
There you have it. The investigator must apply a reasonable person test in determining if the evidence is substantial enough to warrant discipline.
6. EQUAL TREATMENT: Has the Employer applied its rules, orders and penalties even-handedly and without discrimination to all employees?
Translation: "The goose and the gander: if its good for the goose, its good for the gander." If you haven't fired others for the same infraction then you probably shouldn't fire this employee for it. If other employees have only been given warnings, then you should be consistent and give a warning to this employee. There are exceptions. If this employee has had multiple warnings and other disciplinary actions then apply the "Straw that broke the camel's back rule." Keep in mind the straw that broke the camel's back rule must be applied by a reasonable person.
7. PENALTY: Was the degree of discipline administered by the Employer in a particular case reasonably related to (a) the seriousness of the employee's proven offense, and (b) the record of the employee in his service with the Employer? Translation: Does the punishment fit the crime. How serious was the violation of a work rule? Did you consider all of the employee's prior work history with the company? It is probably not a proper penalty to punish a thirty-year employee with discharge for coming to work late once or twice, if it is once or twice in thirty years. One poor performance evaluation by a new supervisor after 29 years of positive evaluations by multiple supervisors, is probably not a good idea. However, one on the job fist fight even though there have been 29 fight free years, may be grounds for discipline up to and including discharge.
SUMMARY
If you are an at-will employer in private sector, you should take steps to insure that your policies and procedures or employee handbooks do not rope you into a just cause standard for discharge. Private sector employers can generally discharge an employee "just cuz" they want to and generally do not have to give a reason. I suggest however, that if you decide not to give a reason for discharging an employee, don't oppose their unemployment benefits because they engaged in misconduct of some sort. You are only inviting a lawsuit or Bureau of Labor complaint for some discriminatory discharge claim. If you are going to fire someone for cause, even if you are not required to apply "just cause" at least ask yourself the just cause questions before you finalize your decision. It is the prudent and safe thing o do.If you are a public sector employer, unless you are exempted from "just cause", you should really evaluate your disciplinary decisions taking into consideration each of the just cause questions.
Just Cuz or Just Cause, it's your decision. I prefer to err on the side of caution. Doing discipline right is always cheaper than doing it quick.
http://www.indiana.edu/~uhrs/training/ca/substantial.html
