Just Cause
We hear the expression; we see it in the contract – "the employee shall be disciplined only for just cause." The expression "just cause" goes to the heart of the grievance procedure and why a union was organized on the property.

When we organize a group of workers, it is often because workers are treated unfairly. Without union protection, there is no recourse for them to fight unfair treatment in whatever form it takes.

What is just cause? Simply put, the employer must have a legitimate reason to assess discipline and the method of doing so must be fair. But just cause goes way beyond that. There are a series of standards that are applicable in almost every disciplinary case. You won’t see them written in any contract. But the employer knows that if he or she does not adhere to those standards, an arbitrator may throw the company-assessed disciplined right out and put the member back to work, possibly with full back pay. These standards apply to the almost all cases of discipline, whether a written reprimand or a discharge.

For the record the seven standards were written almost fifty years ago in an arbitration case. They remain virtually unaltered since then. Let’s examine each one.

• Did the Company give the employee warning of the consequences of his/her conduct? The type of warning may be written such as a posted rule or a rulebook handed out at employee orientation. Or the member may be told that certain observed conduct is unacceptable and he/she will be disciplined if it continues. Some conduct such as theft, fighting or alcohol consumption is viewed as so serious that the employee is expected to know the consequences of such acts without a warning.
• Was the company’s rule reasonably related to orderly, efficient, and safe operations? The union can grieve rules if the rules don’t meet this criteria. Members can grieve the same rules if they are disciplined for violating them. Dress codes and appearance rules often fall into this category. But unless there is a threat to health and safety or they constitute an illegal act, the rules must be obeyed and then grieved
• Did the company investigate before administering discipline? A member has the right to know what he/she is being charged with. Normally, he company investigation must be made before its disciplinary decision is made. Even if the employer must take immediate action, the proper procedure is suspend the member prior to investigation and if the member is found innocent of charges, he or she will be restored to the job with full pay for lost time.
• Was the company’s investigation conducted fairly and objectively? The company official may act in a hearing as a prosecutor and judge but that person cannot also be a witness against the member. All key witnesses must be interviewed. Otherwise the union can object to the investigation as unfair.
• Did the investigation produce substantial evidence or proof of guilt? This means that the standard of judgment is that the facts presented by management outweigh the facts presented by union. It does not mean that evidence be preponderant or beyond reasonable doubt. The employer must prove his or her case. It is not up to the member to simply prove his/her innocence.
• Has the company applied its rules, orders and penalties evenhandedly and without discrimination? For example, if the company has been lax in enforcing a rule in the past, it must inform its employees of its intention to enforce the rule in the future. The logic here is that choosing a worker to discipline to begin enforcing a rule may be viewed as discriminatory because others guilty of the same offense were not penalized.
• Was the penalty reasonably related to the seriousness of the offense and the record of service? A trivial offense does not merit harsh discipline unless there is a continual pattern of guilt for the same offense. A worker’s record may not be used to determine guilt of the current charge. It may be used to determine the severity of punishment for the charge. Therefore, past work records and longevity with the employer may lighten some penalties.

If you investigate and present disciplinary grievances for the local union, you should use these seven standards as a guideline. You don’t automatically win your case if the employer violates one of these standards. But if there is a pattern, you may be able to build a strong enough case against the employer.

The key to winning these cases is for the union to conduct a thorough investigation. Interview everyone and take good notes. In disciplinary cases, the employer is the moving party. Let them try to prove their case. Take notes while they talk and reserve your comments until they have finished. Make sure you ask questions of their witnesses.

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