If you’ve worked in labor relations for any amount of time, you’ve become familiar with the Seven Tests of Just Cause. They have been the foundation of every disciplinary action taken in a unionized environment in some way, shape or form since Arbitrator Daugherty first wrote about them in 1964. If you are not aware of them, the Seven Tests have been used by many arbitrators to determine whether a disciplinary action taken by an employer fits within a contract’s definition of Just Cause. They are as follows (in summary form):
- Is there a reasonable rule prohibiting the behavior (or mandating it)?
- Was the rule made known to the employee prior to the violation?
- Did an investigation take place?
- Was the investigation fair?
- Did the investigation reasonably prove that the misconduct took place?
- Was the discipline commensurate in severity to the violation?
- Have other employees been disciplined in a similar fashion for such a violation?
Those tests, and the comments that followed, have been an oft used standard. Certain attorneys who are frequently tasked with writing out briefs following arbitration hearings may choose to combine some of the rules to avoid having to make at least seven different arguments after a hearing, but these are the tests as they were originally proscribed.
However, in recent years (although some commentators will say this has been in the works since the late ‘80s) arbitrators have begun to push back against the Seven Tests, and have instead focused on only the factors that they find to be the most important. And when advocates ramble on about how the test have or have not been satisfied, some arbitrators roll their eyes in frustration as the parties apparently miss the mark on their arguments. This sentiment was reflected in Arbitrator Jon Dunsford’s speech to the National Academy of Arbitrators back in 1989.
When faced with a disciplinary action imposed by a client, the first thing an advocate should do is make sure that when the disciplinary action is being taken, that the employer followed the Seven Tests. While an arbitrator might not strictly adhere to the tests, the standard was created as a basis for procedural fairness for employees. If you don’t believe the discipline was fair in the first place, it might not be worth going to arbitration to defend. Furthermore, if it’s clear that a test has not been satisfied, you can be sure the union will attempt to emphasize that point in arbitration.
Second, if all of the tests cannot be answered affirmatively, advocates need to evaluate how detrimental that failure is to the case, and take steps to show that that step was not crucial in the disciplinary decision, or emphasize other aspects of the decision that makes it appear more fair. If the punishment is not consistent with the parties’ history of discipline, an advocate must emphasize the severity of the proven conduct in contrast to other instances of misconduct during the bargaining history. If a rule is not clearly enunciated to employees, show how the employee’s conduct is so unacceptable that it should not be necessary for such a rule to be provided to employees.
The bottom line is, you, or your client, are in arbitration for a reason. You’ve considered the strengths and weaknesses of your case using the Seven Tests as a backdrop for your discipline, and now it is up to you to show that despite your case’s alleged weaknesses, the discipline was fair. If you were going to settle the case prior to arbitration, you would have done so already. Make your position appear as reasonable as possible in order to have your position upheld.
If you or your organization need assistance with your next discipline case, contact the Wiley Law Office, for arbitration experience that works.