Definition of Terms
Practitioners of employment and labor relations frequently refer to ‘just cause’ or the ‘seven tests of just cause.’ What is it? How does it work? In most discipline and discharge cases, the seven tests of just cause standards may apply. It is important to note, however, that not all arbitrators follow these standards. As scholars of arbitration have noted, the tests should never be viewed as a rigid formula for determining just cause. The following information, therefore, is intended to serve as a guide for employing the seven tests of just cause for stewards handling discipline and discharge grievances.
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 in that in the written decision he outlined what have 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 or other employment documents. 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 that Daugherty derived were predicated around seven basic questions related to discipline cases. They are general questions that an arbitrator may ask of any case concerning disciplinary action and, therefore, serve as a guide for union stewards and human resource professionals, officers, and arbitration advocates in determining whether a worker, union member, or note was justly disciplined. Of course, the burden in disciplinary cases rests with the company which must "prove" that an employee was disciplined for just cause and the general "rules" of just cause only apply when there is no specific language dealing with discipline and discharge in the bargaining agreement in a unionized work setting. If, for example, the agreement includes a no-fault attendance policy, any disciplinary action related to the attendance policy is outside of the rules of just cause. In non-unionized settings just cause protections generally do not apply since most non-unionized employees are at-will-employees. The questions or tests used by Daugherty are as follows:
- Did the company give the employee forewarning or foreknowledge of the possible disciplinary consequences of the employee's conduct?
An important point to consider here is whether proper notice was given either orally or in written form. Certain offenses, however, such as intoxication, insubordination, drinking or using drugs on the job, and theft may properly be deemed so serious that any employee is expected to know already that such conduct is likely to be punishable. Thus, a "no" answer to this question does not necessarily imply that an employee was disciplined without just cause. - 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?
Most management rules and orders fit this test and, in general, the adage "work now, grieve later" applies. However, in cases where an employee sincerely believes that following a rule or order may seriously and immediately jeopardize his/her personal safety and/or integrity, then the employee may be justified in her or his disobedience. The exception to the ‘work first, then grieve rule is when the employee feels something is illegal, immoral, or unsafe. The importance is to document or prove it’. - Did the company, before administering discipline to an employee, try to discover whether the employee did in fact violate or disobey a rule or order of management?
In most cases, management is expected to investigate before rendering a disciplinary decision against an employee. In cases where immediate action is taken against the behavior of an employee, management should suspend an 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 or she will be restored to his/her job with full pay for lost time. - Was the company's investigation conducted fairly and objectively?
To investigate, a management official must in reality act as "prosecutor" and "judge," but must also attempt to search out witnesses and evidence pertaining to the particular case. They are no longer an advocate for an outcome, they are in pursuit of the truth, not driving the investigation in pursuit of a specific outcome. Merely accepting at face value what participants or witnesses say is not necessarily enough to satisfy the requirement of a fair and objective investigation. - At the investigation, did the company "judge" obtain substantial and compelling evidence or proof that the employee was guilty as charged?
According to Daugherty, it is not required that the evidence be "fully conclusive or beyond all reasonable doubt," as in a court of law setting, but it should be truly "weighty and substantial and not flimsy or superficial." The key for this test is for management's "judge" to demonstrate that he or she scrutinized the evidence obtained from his/her own people to the same degree that he or she scrutinized the evidence obtained from the accused and his or her witnesses. - Has the company applied its rules, orders, and penalties even-handedly and without discrimination to all employees?
A "no" answer to this question requires a finding of discrimination and the negation or modification of the discipline imposed. Issues related to the lax enforcement of company rules and the comparability of discipline given to employees found guilty of the same offense might all be important in holding management to this test. How have other employees who have committed similar act been treated? - 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?
The key to this test is generally referred to as the practice of progressive discipline. That is, an overly harsh penalty is not imposed for a first and/or trivial offense. It is also important that an employee's past record be brought to bear upon this question if said record is not used to "prove" the company's allegation in the case at hand.
Discipline and discharge grievances are, by their nature, some of the most difficult and important cases union stewards, officers, and HR professionals must deal with. Discharge is, of course, the equivalent of capital punishment in the world or work. Often, the damage done when wrongful termination is done, whether arbitration reinstates the worker or not, is irreversible, creating a significant disruption in the workplace that can take years to recover from. The seven tests, therefore, can be an effective guide for helping advocates see that justice is served for those they represent.