Saturday, February 7, 2015

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

 
                                                   


 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 athttp://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.




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