The Seven Tests
Does the Employer Have Just Cause?
contractual weapon in discipline and discharge
cases is usually the requirement that 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.
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").
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.
of the main reason 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.
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:
Was the employee adequately
warned of the consequences of his conduct?
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
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.
Was the employer's rule or order
reasonably related to efficient and safe operations?
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
Did management investigate
before administering the discipline?
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.
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.
Was the investigation
fair and objective?
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
Did the investigation produce
substantial evidence or proof of guilt?
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
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.
Were the rules, orders, and penalties
evenhandedly and without discrimination?
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.
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.
Was the penalty reasonably related to
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 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.
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
Do a thorough investigation of the case. DON'T take
the employers word on anything. (See:
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.