Using the Seven Tests for Just Cause

  One of the main reasons workers join a union is to gain protection against unfair and unjust discipline that employers hand out.  Stewards must be ready to handle sorted variety of discipline cases, from warnings to suspensions to terminations.  And, Stewards must also be ready to deal with situations of harassment to different degrees of abuse by some supervisors when a member is disciplined as well as dealing with members who sometimes seem to go out of their way to get themselves into trouble.

1. Was the employee adequately warned of the consequences of his conduct?

  The 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 be punishable.

Example:  If an employee is told to stop using vulgar language and told that if he continues he will be disciplined, that may be adequate warning.  However if a supervisor 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.

2. Was the employer’s rule or order reasonably related to efficient and safe operations?

Example:  A supervisor tries to implement a rule that all employees must wear uniforms with creases ironed into them and tucked in to prevent the shirt from getting caught in any machinery.  An employee is fired for wearing their uniform neatly pressed but without creases.  Making a rule that tee shirts must be tucked in so they won’t get caught in machinery may be reasonable and safety-related, but demanding the shirt be creased isn’t related to safety or efficiency.

3. Did management investigate before administering the discipline?

  The 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.

Example:  A supervisor fires a worker for stealing and then demands evidence from the union that the worker isn’t guilty.  At the protest hearing the supervisor admits he never conducted an initial investigation of 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 company, even though the supervisor failed to properly investigate the case.

4. Was the investigation fair and objective?

Example:  If an incident occurs does the company's agent interview everyone present or only management employees who were present.  If the company refuses to interview non-management employees then the investigation may not be fair and just.

5. Did the investigation produce substantial evidence or proof of guilt?

  It is not required that the evidence be preponderant, conclusive, or “beyond a 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 future employment.

Example:  Here it is obvious that workers have less rights inside the workplace than they would have in civil court, but still the company must have real evidence, not assumptions.  Again, the company cannot try to make a worker prove his or her innocence, without presenting proof of guilt.

6. Were the rules, orders, and penalties applied evenhandedly and without discrimination?

  If 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.

Example:  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.

7. Was the penalty reasonably related to the 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:  The classic 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 worker with more years of service less punishment than the other worker.

 Tips for Handling Discipline & Discharges

 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, doesn’t mean we automatically win, but showing that they have a supervisor or manager who has mistaken their position of responsibility as a position of authority and abused it helps a lot.

• Make sure that an employee’s Weingarten rights aren’t or weren’t violated during the employer’s investigation.

• 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 of the employer's notes and records they used to make a decision.  Get any notes or records a 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 case.

• Do a thorough investigation of the case.  DON’T take the employers word on anything.

• 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 a supervisor start the meeting by saying to the union, “OK tell me why I shouldn’t fire Joe”. Make the supervisor 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 being put into written form make sure the employer receives from the union a written statement disputing the facts and the level of discipline.  Have a rebuttal drafted by the employee and put into the record and keep a copy showing what was submitted.  It doesn't need to be written elaborately just list the facts of the matter including dates and names of the people involved.