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Just Cause Checklist

The overwhelming majority of collective bargaining agreements contain a provision that requires Employers to have "just cause" to take disciplinary action. The following is a checklist of arguments that can be used to undermine the "Just Cause" for an Employer's disciplinary actions. The elements of a "just cause" argument are:

Discipline should be corrective, not punitive.

The Employer must have promulgated a clear and unambiguous rule or standard of conduct. (Some conduct, such as theft by a police officer, is so egregious that a written prohibition is unnecessary)

  • Rules and regulations
  • Policies and procedures manual
  • Departmental orders
  • Collective bargaining agreement
  • State law

The Employer has the responsibility of communicating the rule to employees prior to its use.

The rule must be consistently enforced. Prior inconsistencies won't help unless the Employer knew about them.

There must be proof of a violation of the rule, to the point of wrongdoing.

  • Burden of proof: Runs from "preponderance of the evidence," through "clear and convincing evidence," up to "beyond a reasonable doubt." (Although arbitrators very rarely adopt a standard other than "preponderance")
  • If a violation is proved, did the employee know his actions were wrong?

The Employer should conduct a thorough and fair investigation into the alleged misconduct.

Discipline should be progressive. (Discipline should be meted out in increasingly larger doses, allowing the employee the opportunity to adapt his/her behavior to the required standard of conduct.)

Employees must be treated equitably. All employees who have engaged in similar conduct should be disciplined equally.

Mitigating circumstances, such as the introduction of actors in an attempt to excuse wrongdoing, like:

  • The employee's good disciplinary record
  • The employee's state of mind at the time of the alleged misconduct

Filing a Grievance

I. THE INVESTIGATION: IS IT A GRIEVANCE?
The first step in processing a grievance is an investigation to discover all the relevant facts. The following series of questions, the five "W's", will assure a thorough investigation:

  • WHO was involved in the incident? Be sure that you identify not only those directly involved, but also any witnesses.
  • WHEN did it happen? Identify the incident as specifically as possible: date, time, shift, etc.
  • WHERE did it happen? Again, as specifically as possible.
  • WHAT happened? What are the specific circumstances? (And, if relevant, what is the past practice?)
  • WHY is this incident a grievance? Identify the clause(s) of the contract or the past practice violated. How does the action, or inaction, of management violate the cited clause(s) and/or past practice?

In addition to the five "W's", you should also determine if the issue has been grieved in the past. In general, if the issue was the subject of a prior grievance, the resolution of that prior grievance will control. This holds true whether the prior grievance was settled during the grievance procedure, resulted in an arbitrator's award, or you failed, for whatever reason, to move the prior grievance to the next step after a negative response from management.

After you complete your investigation you will be able to determine if the complaint is, in fact, a grievance or an issue that should be handled in another forum.

II. WRITING THE GRIEVANCE
When a grievance is first reduced to writing it should be written as if it will ultimately be heard by an arbitrator; so be sure that your written grievance contains the three elements of a properly written grievance. Those three elements are:

  1. THE FACTS. All of the relevant information that you discovered during your investigation. (Including, if relevant, the past practice)
  2. THE ARGUMENT. How the facts violate the contract and/or the past practice.
  3. THE REMEDY. The steps necessary to rectify the contract violation and make the affected employees whole.

Argument: When writing the argument, be sure to reference all of the relevant contract clauses alleged to have been violated. If the grievance goes to arbitration you can't, as a general rule, raise issues or cite contract clauses not contained in your grievance. Arbitrators tend to adopt the position that they won't address issues at the stage that management did not have a chance to address and respond to during the prior steps of the grievance procedure. In order to assure that you don't neglect to cite any relevant contract clause(s), after you have listed the clause(s) alleged to have been violated you can add the phrase: "and all other relevant sections of the contract". If you are relying on past practice, after citing the appropriate clause(s) add: "and the practice there under". Keep in mind, however, that past practice is only relevant if the language in the contract is ambiguous—past practice does not obviate clear and express contract language.

Remedy: When writing your requested remedy, you must let management know what you want to happen to remedy the violation. The requested remedy must be reasonably related to the violation and to the grievant(s). (You can't ask that a supervisor be shot, or otherwise disciplined, for failing to call the overtime list properly, for example.) The most common remedy requested is that the grievant(s) be "made whole"; i.e., restored to the condition and status that existed prior to the violation, with no loss of pay or other benefits or entitlements.

III. PRESENTING THE GRIEVANCE
When it is time to present the grievance to management, preparation is your best weapon. Know what you want to say—write out all of the points that you want to make, in advance, so that you will be able to present your case properly. Also, anticipate management's arguments so that you will be prepared to properly respond to them.

IV. DON'T FORGET THE TIME LIMITS
FINALLY, when processing your grievance be sure to follow your grievance procedure carefully. Watch all time limits and adhere to them faithfully. (If management fails to respond at any step within the time frame specified for their response, assume a negative response and proceed to the next step of the grievance procedure.) Failure to adhere to the time frames may adversely affect your ability to arbitrate. Management can make a claim to the arbitrator that the grievance is non-arbitrable if you fail to adhere to the time limits. As a general rule, arbitrators will find a grievance to be non-arbitrable if the time frames contained within the negotiated grievance procedure are egregiously violated. Their feeling is that, since negotiated grievance procedures contain mutually agreed to time limits for processing a grievance through the steps, it is not unreasonable to expect you to adhere to the time limits you agreed to, and if you fail to do so you forfeit the right to move the grievance to the next step.