Question

How does an arbitrator determine that a company had just cause for taking a disciplinary action? What remedy might an arbitrator choose if a company did not have just cause? Will the process be different if the organization does not have union representation? If so how?

Answer 1

In employee discipline and discharge cases, arbitrators commonly apply the just cause standard in deciding the case. Many arbitrators apply the "seven tests of just case for discipline" developed by Adolph M. Koven in deciding a case. These tests are:

1. Adequate warning – is the employee given adequate, oral or printed, warning to the consequences of his conduct?

2. Prior Investigation – did management investigate the case before administering the discipline?

3. Evidence – Did the investigation produce substantial evidence or proof of guilt?

4. Equal treatment – Were all employees judged by the same standards, which rules applied equally?

5. Reasonable penalty – was the penalty reasonably related to the seriousness of the offense and the past record of the employee.

6. Rule of reason – was the rule or order reasonably related to efficient and safe operations.

7. Internal consistency – was management enforcement of this rule or procedure consistent? The more common remedies used by arbitrators in overturning management actions in discipline and discharge cases often include a make whole remedy (includes back pay, reinstatement, other rights and privileges remaining unimpaired, revising managements assessment, reducing the penalty to a warning, etc.)