Many collective bargaining agreements have a provision that requires “just cause” before a unionized employee may be terminated. In a union context, the phrase “just cause” can have a very different meaning from the same term as used in a non-union employment agreement.
Whether “just cause” exists for unionized employees depends on a variety of factors, including the language of the collective bargaining agreement, analogous arbitration decisions, the employer’s arbitration history with the union, and the facts and circumstances of each particular case.
Although it is not always easy to predict whether an arbitrator will agree that there is just cause for an employee’s termination, arbitrators will often consider the “seven tests” developed by Arbitrator Carroll Daugherty in Enterprise Wire Co., 46 LA 359 (1966), to determine whether just cause is present. These “seven tests” are as follows:
- Was the employee forewarned of the consequences of his or her actions?
- Are the employer’s rules reasonably related to business efficiency and performance the employer might reasonably expect from the employee?
- Was an effort made before discipline or discharge to determine whether the employee was guilty as charged? Was the investigation conducted fairly and objectively?
- Did the employer obtain substantial evidence of the employee’s guilt?
- Were the rules applied fairly and without discrimination?
- Was the degree of discipline reasonably related to the seriousness of the employee’s offense and the employee’s past record?
Takeaway: Employers with unionized workforces should familiarize themselves with the “seven tests” of just cause termination. When the requirements of the seven tests are satisfied, it is likely that the employer has just cause for termination.