Employers with unionized workforces generally discipline union members pursuant to a collective bargaining agreement (“CBA”) which is a negotiated written legal contract between an employer and a union. Disciplinary procedures are commonly referred to by the law as “mandatory subjects” of a CBA which must be negotiated with the union before they can be applied. Other subjects of a CBA that generally must be negotiated with a union are discharge, discipline, layoff, recall, grievance procedures, and arbitration, among others. It is important that supervisors are well trained on how to follow CBA disciplinary procedures to avoid violating a CBA. Since a CBA is a contract, violations can include pay for back wages and reinstatement to the job if the employee is discharged.
“Just Cause” Standard
Unlike “at will” employees whom employers can discipline and/or discharge for any lawful reason, unionized employers must impose discipline for “just cause” which requires employers to have a reason (i.e., cause) for disciplining a union member and the reason must be fair (i.e., just). Even if the CBA fails to reference terms such as “proper,” “fair,” or “just cause,” the “just cause” standard is usually read into a CBA during arbitration when determining whether to deny or uphold an employee’s disciplinary grievance. When determining whether the discipline imposed was for “just cause,” there are seven (7) tests which employers must follow. These tests will be applied to determine that the discipline imposed was fair and reasonable under the law. Should employers fail to follow one (1) of the seven (7) tests, such failure can be grounds to reduce and/or overturn the disciplinary action. Below are the seven tests the employer must follow to meet the “just cause” standard.
The Seven (7) Tests for “Just Cause”
- Reasonable Rule or Work Order. Is the rule or order reasonably related to the orderly, efficient, and safe operation of the business?
- Notice. Did the employee receive adequate notice of the work rule or performance standard and the possible consequences of failure to comply?
- Sufficient Investigation. Did the employer investigate before taking disciplinary action?
- Fair Investigation. Was the employer’s investigation fair and objective?
- Proof. During the investigation, did the employer find proof of misconduct or a performance discrepancy?
- Equal Treatment. Has the employer dealt with employees equally, without discrimination?
- Appropriate Discipline. How does the employer determine what is appropriate?
Evidence of Intent of Extreme Carelessness
Despite the above, an employers’ decision to immediately discharge is often upheld where it is determined that a unionized employee engaged in extremely unacceptable behavior such as, theft, dishonesty, assault on a supervisor, falsification or material omission on the employment form, willful damage to the company’s property, falsification of work records, disclosure of trade secrets, etc. However, a high standard is imposed on employers to establish evidence of intent of extreme carelessness. Should an employer fail to demonstrate this intent on the part of the employee, the discipline imposed by the employer is not likely to be upheld if challenged in arbitration.
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