When deciding discipline cases, arbitrators and grievance panels prioritize some pieces of evidence much higher than others. Plan your defense accordingly.

Most Teamster contracts state that “No employee shall be disciplined or discharged without just cause.”

What “just cause” means is not spelled out in contracts or in the law, and its meaning has evolved over time.

Every union steward should know the seven tests of just cause. But just as importantly you should know how arbitrators and grievance panels actually weigh facts and evidence. 

Seven Tests of Just Cause

The basic idea of “just cause” is that management must have a good reason to discipline an employee. Union contracts referred to just cause long before the seven tests were established.

The “Seven Tests of Just Cause” were first outlined by an arbitrator named Carroll R. Daugherty. 

Over time, as arbitrators have continued to make decisions, some tests emerged as more important than others.

Attorney Robert Schwartz published a popular guide for union members, stewards, and business agents about how arbitrations actually make their rulings called, Just Cause: A Union Guide to Winning Discipline Cases.

Schwartz defines the tests this way:

• Fair Notice: Workers have to know of the rule they are accused of violating.
  
  
• Prior Enforcement: Management can’t start suddenly enforcing a rule that has gone unenforced for a long time.
  
  
• Due Process: Management must conduct an interview or a hearing before issuing discipline, and they can’t increase the discipline after the fact.
  
  
• Substantial Proof: Discipline should be based on sound evidence, not rumors.
  
  
• Equal Treatment: Those committing the same offense should not receive “disparate treatment.”
  
  
• Progressive Discipline: The employer should start with lesser penalties rather than moving immediately to suspension or firing.

Mitigating and Extenuating Circumstances: Discipline must be proportional to the gravity of the offense, taking circumstances into account.

Preparing Your Defense

The Seven Tests of Just Cause are the right starting place for preparing your defense. 

But since the seven tests are not binding, you need to prepare your defense based on how arbitrators and grievance panels actually make decisions. Here are key questions to ask:

• Did the employee actually do what management accuses them of doing? Do management and the union disagree about the actual events, or do they just disagree about the severity of the discipline that is called for? Does management or the union have a more credible story about what happened? If what management accuses the employee of doing didn’t happen, did something similar but lesser occur?
  
  
• Is the punishment too severe? Does the punishment fit the crime? How has the employer punished similar infractions in the past? If the employer has a zero-tolerance rule, have they enforced it evenly?
  
  
• What is the employee’s length of service? Generally, arbitrators do not like to see long-tenured employees lose their jobs unless repeated or egregious violations of rules have occurred. Arbitrators or a grievance panel will look to see if the employee has significant discipline on their record. Longtime employees with little or no discipline will often be granted consideration unless what they did is so egregious that they cannot be returned to the workplace.

Some of these questions line up directly with one of the seven tests. Others do not. 

The important thing is that they are often the first questions that arbitrators or a grievance panel will ask and base their rulings on.

The employer failing a technicality on one of the seven tests — like “fair investigation” — may not be important if it can be clearly established that the violation did occur as the employer describes it. 

In a case like that, the best argument for a steward or business agent in a grievance hearing may be to focus on the employee length of service and a relatively clean record as opposed to leaning in heavily on the investigatory mistake.

Summing Up

Stewards should make sure to document the employer failing any of the seven tests. But when deciding how to take on discipline and terminations, you also need to look at what arbitrators and grievance panels tend to focus on in real cases. 

You need to evaluate your case like an arbitrator or grievance panel. Look at your best facts, evidence, and arguments. Look at your weakest.  

Make management prove their case and be fair to every Teamster. That’s what just cause and the grievance procedure are all about.