The URA is committed to ensuring that our membership is well-versed in our contract and our rights. To that end we are rolling out a series of Contract Education articles to help you understand the importance of our contract; how the various articles are beneficial to you, and when and how they are applicable.
‘Just Cause’ for Discipline and Dismissal
ARTICLE 18 — JUST CAUSE/DISCIPLINE
No employee shall be discharged, suspended, disciplined or receive a deficiency downgrade except for just cause.
The parties to this Agreement affirm the concept of progressive discipline.
Just Cause is the keystone of the collective bargaining agreement. The just cause clause in our contract insures the integrity of the contract and the viability of our union. Without it, an employer could fire employees for trivial or manufactured reasons, could undo seniority, eliminate higher paid workers, and strip the union of its leadership.
Supervisors often assume that just cause is an easy criterion to satisfy. On its face, the standard appears only to require a legitimate reason for taking action. However, years of union advocacy, have molded just cause into a formidable bulwark; obligating employers to publicize rules, enforce them consistently, follow due process, treat employees alike, produce substantial and credible evidence, apply graduated penalties, and consider mitigating and extenuating circumstances.
Just cause protection marks a sharp dividing line between union and non-union (“at-will”) employees. Union workers cannot be dismissed unless they engage in egregious or repetitious misconduct. Non-union employees can be fired for a single mistake, an argument with a supervisor, a complaint about working conditions, or for incurring the dislike of a manager. (Taken in part from Just Cause, A Union Guide to Winning Discipline Cases, Robert H. Schwartz)
So what does the term “just cause” mean? In 1966, Carroll R. Daugherty, an arbitrator, wrote a decision for a case involving the discharge of an employee at Enterprise Wire Company located in Blue Island, IL. Daugherty’s decision in the Enterprise Wire case is important because in that written decision he outlined what has come to be known as the seven tests of just cause. Daugherty concluded that while it is usually implied that employees will only be discharged or disciplined for “just cause,” the exact definition of just cause is seldom specified in collective bargaining agreements. Therefore, Daugherty delineated seven tests that he believed should be met before a worker is terminated for cause. After the Enterprise Wire decision, Daugherty refined and broadened the seven tests
The tests of just cause are general questions that an arbitrator may ask of any case concerning disciplinary action and, therefore, serve as a guide for union stewards in determining whether a URA member was justly disciplined. The burden of proof in disciplinary cases rests with the employer which must “prove” that an employee was disciplined for just cause.
The questions, or tests, used by Daugherty are as follows
1. Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?
Note 1: Said forewarning or foreknowledge may properly have been given orally by management or in writing through the medium of typed or printed sheets or books of shop rules and of penalties for violation thereof.
Note 2: There must have been actual oral or written communication of the rules and penalties to the employee.
Note 3: A finding of lack of such communication does not in all cases require a “no” answer to Question No. 1. This is because certain offenses such as insubordination, coming to work intoxicated, drinking intoxicating beverages on the job, or theft of the property of the company or of fellow employees are so serious that any employee in the industrial society may properly be expected to know already that such conduct is offensive and heavily punishable.
Note 4: Absent any contractual prohibition or restriction, the company has the right unilaterally to promulgate reasonable rules and give reasonable orders; and same need not have been negotiated with the union.
2. Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?
Note: If an employee believes that said rule or order is unreasonable, he must nevertheless obey same (in which case he may file a grievance thereafter) unless he sincerely feels that to obey the rule or order would seriously and immediately jeopardize his personal safety and/or integrity. Given a firm finding to the latter effect, the employee may properly be said to have had justification for his disobedience.
3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
Note 1: This is the employee’s “day in court” principle. An employee has the right to know, with reasonable precision, the offense with which he is being charged and to defend his behavior.
Note 2: The company’s investigation must normally be made before its disciplinary decision is made. If the company falls to do so, its failure may not normally be excused on the ground that the employee will get his day in court through the grievance procedure after the exaction of discipline. By that time there has usually been too much hardening of positions. In a very real sense the company is obligated to conduct itself like a trial court.
Note 3: There may, of course, be circumstances under which management must react immediately to the employee’s behavior. In such cases normally the proper action is to suspend the employee pending investigation, with the understanding that (a) the final disciplinary decision will be made after the investigation and (b) if the employee is found innocent after the investigation he will be restored to his job with lull pay for time lost.
Note 4: The company’s investigation should include an inquiry into possible justification for the employee’s alleged rule violation.
4. Was the company’s investigation conducted fairly and objectively?
Note 1: At said investigation, the management official may be both “prosecutor” and “judge,” but he may not also be a witness against the employee.
Note 2: It is essential for some higher, detached management official to assume and conscientiously perform the judicial role, giving the commonly accepted meaning to that term in his attitude and conduct.
Note 3: In some disputes between an employee and a management person there are not witnesses to an incident other than the two immediate participants. In such cases it is particularly important that the management “judge” question the management “participant” rigorously and thoroughly, just as an actual third party would.
5. At the investigation did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?
Note 1: It is not required that the evidence be conclusive or “beyond all reasonable doubt.” But the evidence must be truly substantial and not flimsy.
Note 2: The management “judge” should actively search out witnesses and evidence, not just passively take what participants or “volunteer” witnesses tell him.
Note 3: When the testimony of opposing witnesses at the arbitration hearing is irreconcilably in conflict, an arbitrator seldom has any means for resolving the contradictions. His task is then to determine whether the management “judge” originally had reasonable grounds for believing the evidence presented to him by his own people.
6. Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?
Note 1: A “no” answer to this question requires a finding of discrimination and warrants negation or modification of the discipline imposed.
Note 2: If the company has been lax in enforcing its rules and order, and decides henceforth to apply them rigorously, the company may avoid a finding of discrimination by telling all employees beforehand of its intent to enforce hereafter all rules as written.
7. Was the degree of discipline administered by the company 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 company?
Note 1: A trivial proven offense does not merit harsh discipline unless the employee has properly been found guilty of the same or other offenses a number of times in the past. (There is no rule as to what number of previous offenses constitutes a “good,” a “fair,” or a “bad” record; reasonable judgment therefore must be used.)
Note 2: An employee’s record of previous offenses may never be used to discover whether he was guilty of the immediate or latest one. The only proper use of his record is to help determine the severity of discipline once he has properly been found guilty of the immediate offense.
Note 3: Given the same proven offense for two or more employees, their respective records provide the only proper basis for “discriminating,” among them in the administration of discipline for said offense. Thus, if employee A’s record is significantly better than those of employees B, C, and D, the company may properly give A a lighter punishment than it gives the others for the same offense; and this does not constitute true discrimination.
Note 4: Suppose that the record of the arbitration hearing establishes firm “Yes” answers to all the first six questions. Suppose further that the proven offense of the accused employee was a serious one, such as drunkenness on the job; but the employee’s record had been previously unblemished over a long continues period of employment with the company.
Discipline and discharge grievances are, some of the most difficult and important cases handled by union stewards. Discharge is, of course, the equivalent of capital punishment in the world or work. The seven tests, therefore, can be an effective guide for helping stewards fight the unjust discipline of union members that they serve.