Most labor relations professionals would concede that the phrase “just cause” carries with it an intrinsic meaning that needs no explanation; one might say you “know it when you see it”. Even so, just cause does require certain elements be present in order to establish that disciplinary action taken against an employee was proper. 

The most well-known approach to evaluating just cause, Daugherty’s “7 tests”,1 requires an affirmative response to each of seven conditions to determine whether management acted appropriately in imposing disciplinary action. Failure to meet any of the tests means the action was inappropriate in process or in principle. But discipline and the circumstances leading up to it do not occur in laboratory conditions. For this reason, it’s important to consider whether wooden application of the checklist is in fact the highest use of this methodology.

The Tests as an Arbitral Standard
Despite its ubiquity, the 7 tests approach is not held to as strictly as is generally believed when it comes to adjudication of disciplinary appeals. The arbitrator’s role is to consider the relevant facts and determine whether the employer acted reasonably, or if it violated any right given to employees by the collective bargaining agreement (or any other authority). That determination must take into account factors both inherent to and outside of the disciplinary action itself. Factors such as these can, and do, impact disciplinary decisions. Any approach that ignores them does injustice to the arbitration process. One weakness of the 7 tests as a deliberative standard is that it is too restrictive to yield the type of reasoned outcome the approach is meant to elicit.

Fortunately, adept arbitrators know better than to simply look for 7 clues to guide their decisions. In what may well be one of the most fascinating data-based studies on labor arbitration, the authors of “How and Why Labor Arbitrators Decide Discipline and Discharge Cases: An Empirical Examination”2 challenged the pervasive notion of the 7 tests as the gold standard relied on by arbitrators.

Through statistical evaluation of 2,055 discipline and discharge cases, the authors determined that “…in 91.44 percent of decisions the arbitrator did not rely on the Seven Tests; in only 8.56 percent of decisions did arbitrators explicitly use that structure for analysis of just cause.” They further found that, “…much of the time arbitrators rely on the Seven Tests they are doing so to accommodate the perspective of the advocates rather than because the arbitrators independently believed that the Seven Tests was the appropriate method of analysis.”

This should be instructive for the labor relations professional. If the 7 tests are not typically relied on by arbitrators in deciding whether discipline or discharge was appropriate, the advocate must take a more deliberate approach to evaluating their position. For labor, this may mean that setting out to undermine one or more of the tests in the employer’s case might not prove as effective as anticipated. For management, building a defense aimed at proving each of the 7 boxes have been checked might be similarly futile. Focusing on the 7 tests, an advocate might well miss, entirely, a key issue on which the arbitrator must be satisfied in order to endorse their position.

The Tests as a Labor-Management Tool
In its essence, the principle of just cause seeks to preserve and protect the rights of both management and employees: the inherent right of management to maintain order in the workplace and hold employees accountable, and labor’s right to expect that management will act fairly and respect the contractual and statutory rights of employees. Just cause is, in truth, a part of the “implied covenant of good faith and fair dealing”3, and derives in part from the parties’ actions leading up to arbitration.

With this in mind, perhaps the 7 tests are more useful as an element of the labor-management relationship than a technique for appealing or defending discipline at arbitration. For example, the ‘notice of the rules’ standard can be met and demonstrated through open discussion between the parties of policies, procedures, workplace expectations, and how they will be enforced. The parties could additionally use the labor-management forum as one medium through which the information is disseminated, thereby ensuring adequate notice of rules and consequences for infraction. 

Disciplinary action remains a management right. However, integrating the 7 tests into the way the parties manage issues related to discipline should provide a helpful foundation for management decision-making and union response before, during and after discipline is imposed. It will not be a panacea. Many of the same factors that complicate evaluation of just cause still come into play, such as the needs of the Union to meet its duty of fair representation in a particular set of circumstances, or stakeholder interests in the outcome of action by management. Still, by establishing a practice of acting in good faith in their interactions, employers and unions can be better positioned to meet the foremost goal of just cause: to protect the rights of both employee and employer.

It’s a Standard…and a Tool
Ultimately, just cause “is what a reasonable arbitrator thinks it is”4. It will manifest its presence or absence within the fact pattern presented before said reasonable arbitrator. Integrating the 7 tests into the labor-management relationship will not eliminate all disputes of disciplinary action, but, by taking heed to the ‘test areas’ prior to entering into arbitration, the advocate can better position themselves to focus on other, critical factors when making their case.

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 1) The Seven Tests of just cause were first articulated in Arbitrator Carroll Daugherty’s award and opinion in Enterprise Wire Company, March 1966. Because the tests are so well-known, I will not enumerate them here.

2) Cooper, Bognanno, Befort. University of Minnesota. Arbitration, Proceedings of the Sixtieth Annual Meeting, National Academy of Arbitrators, (2007).

3) Nolan, Dennis R. Standards for Discipline and Discharge. “The Common Law of the Workplace”, 2^nd Edition.

4) ABA Section of Labor & Employment Law. Discipline and Discharge in Arbitration. Brand, N, Editor-in-Chief

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