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The Seven Tests of Just Cause

When an arbitrator looks at a discipline dispute, the arbitrator first asks whether the
employee's wrongdoing has been proven by the employer, and then asks whether the
method of discipline should be upheld or modified. In 1966, Professor and Arbitrator
Carroll Daugherty expanded these arbitration principles into his famous seven tests for
just cause. The concepts encompassed within his seven tests are still widely used by
arbitrators when deciding discipline cases.

Daugherty's seven tests are as follows:

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

♦ Have the Company’s rule and/or policies been clearly communicated either
in writing or verbally.

2. Are the employer's rules reasonably related to business efficiency and performance
the employer might reasonably expect from the employee?

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

♦ Was an investigation conducted?

4. Was the investigation conducted fairly and objectively?

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

6. Were the rules applied fairly and without discrimination?

♦ It is important that management can show consistency in the application of

discipline, as opposed to capriciousness.

7. Was the degree of discipline reasonably related to the seriousness of the

employee's offense and the employee's past record?
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The last test, the degree of discipline, is important because arbitrators want to ensure
that the "punishment fits the crime." An employer's use of progressive discipline often
gives the employer an advantage in arbitration.

Progressive discipline is a term frequently used to describe a process by which the

employer issues warnings and escalating forms of discipline as the frequency and
seriousness of the employee's behavior increases. The basic notion behind this approach
is to demonstrate to the arbitrator that the employer has given the employee a fair
opportunity to correct his or her behavior.

Employers who use progressive discipline and carefully keep accurate records often
receive favorable outcomes from arbitrators. Arbitrators prefer progressive discipline
because it encourages the wrongdoer to correct the bad behavior before the employer
terminates the employee. Of course, severe misconduct by an employee justifies swift
and severe discipline by the employer.

Although arbitrators are cautioned not to overturn an employer's method of discipline

unless it is clearly unreasonable, an arbitrator generally has the ability to modify
discipline. If discharge seems too severe, the arbitrator can award a less serious form of
discipline.

Other Principles for Evaluation:

Past Practice

Consistency

Disparate Treatment

NOTE: The above should not be construed as legal or other advice, but merely principles that have been
used as 'guiding principles' by both union and management administrators. If you or your company are
facing issues relating to employee discipline or discharge, it is strongly encouraged that you seek out
legal advice.

Prepared by Kulture, LLC

www.uskulture.com