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Tip Tuesday: Seven Tests of Just Cause under the NLRA

February 4, 2020

In 1966, arbitrator Carroll Daugherty developed “seven tests of just cause” to determine whether a fair and reasonable disciplinary investigation took place prior to the assessment of discipline. How can employers make sure that they have conducted a fair and reasonable investigation, and pass the “seven tests” in a disciplinary arbitration case? Below are some questions for employers:

1.) Was the employee forewarned of the consequences of his or her actions?

  • Was there a clear policy or procedure that exists, and was the employee made aware of it? Is there evidence of training or an acknowledgement form signed by the employee? Is there a collective bargaining agreement that specifically lists plant and safety rules? When a technical employee is trained on-the-job, did a manager observe and record them following procedures, and did the employee sign-off on those procedures? If insubordination for failing to follow rules is involved, was the employee warned of the consequences for failing to follow those instructions?

2.) Are the employer's rules reasonably related to business efficiency and performance?

  • Are the rules clear and unambiguous? Was the employee trained on proper procedures? Are the rules related to safety and efficiency? Is there a direct method for employees to raise concerns with their supervisor or other manager if they don’t understand a policy or procedure?

3.) Was an effort made before discipline or discharge to determine whether the employee was guilty as charged?

  • Did the employer discuss the incident with the employee prior to assessing discipline? Was the investigatory interview conducted in accordance with Weingarten Rights*? Did the employee provide a written statement? Were witnesses interviewed, and was other evidence (documents, video, etc.) obtained?

* Note: Weingarten Rights apply only to the National Labor Relations Act (NLRA), not the Railway Labor Act (RLA) - see “Tip Tuesday” dated December 3, 2019 for more information.

4.) Was the investigation conducted fairly and objectively?

  • Was the investigation commenced immediately after a supervisor or manager became aware of the alleged infraction? Were all management and non-management witnesses interviewed, if any? Was other evidence gathered and reviewed? If operating violations or safety violations were involved, were internal subject matter experts consulted?

5.) Did the employer obtain substantial evidence of the employee's guilt?

  • “Substantial evidence” requires the moving party to provide enough evidence that a reasonable mind could accept as adequate to support a particular conclusion. In other words, did the employer gather enough evidence to prove their case to a reasonable person? Are there any mitigating factors? Did the employee (or Union) provide a defense (other than a denial)? Did the employee admit to the violation during the investigatory interview?

6.) Were the rules applied fairly and without discrimination?

  • Have there been other employees who allegedly violated similar policies or procedures that were treated differently, for any reason, including favoritism?

7.) Was the degree of discipline reasonably related to the seriousness of the employee's offense and the employee's past record?

  • Has the employer reviewed the employee’s prior discipline record and length of service with the company? How were other employees treated for similar violations? Is this a violation that warrants discharge for a first offense, even for a long tenured employee?

Disciplinary investigations are a complex and challenging process. By conducting a competent and thorough investigation and obtaining all the facts, and with clearly communicated polices and fairness, employers will prevail in conducting a fair and reasonable investigation prior to assessing discipline or discharge.