Using the Seven Tests Did the Employer Have Just Cause? (Courtesy of the United Electrical, Radio and Machine
Workers of Tips for Handling Discipline & Discharge Cases A 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. Using the Seven Tests Here are the "Seven Tests" as
to whether the boss has used "just cause" in discipline and discharge
cases. One of the main reason workers join
unions is to gain protection against unfair and unjust discipline that
employers hand out. Building Reps must be ready to handle all sorts of
discipline cases, from warnings to suspensions to firings. BRs 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 Was the
employee adequately warned of the consequences of his conduct? 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 maybe 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 Was the employer's
rule or order reasonably related to efficient and safe operations? 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 blue isn't related to safety or efficiency. 3 Did management
investigate before administering the discipline? 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 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 non-management workers then the
investigation may not be fair. 5 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 less 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 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 Was the penalty
reasonably related to the seriousness of the offense and the past record? 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. 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. Information for Workers 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 an employee
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 employer's 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.