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. 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.
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 reach 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.
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 at
http://clear.uhwo.hawaii.edu/EnterpriseWire.html. 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.
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.
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 suspensions 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.
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.
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
