What is Just Cause?
Successful appeals of unfair discipline issued by an employer depend heavily on the absence of just cause.
Virtually every public sector collective bargaining agreement (“CBA”) requires that the employer may only discipline its employees for just cause.
Just cause, however, is an elusive concept, not a term that lends itself to precise definition.
Assuming that just cause is not defined with precision in the CBA, one must look in the usual places in attempting to define the term.
For example, Black’s Law Dictionary, 4th Edition, defines just cause as “a cause outside legal cause, which must be based on reasonable grounds.” It continues by indicating that “there must be fair and honest cause or reason, regulated by good faith. Fair, adequate, reasonable cause.”
Arbitrator Kapsch, in In re Weyerhauser Company, 88 LA 270, 273 (1987), reviewed the concept of just cause through the decisions of other arbitrators and judges and stated:
It is obvious, from these arbitral and legal authorities that the just cause requirements contained in the agreement means that the Company must act in a reasonable and fair manner and cannot act in an arbitrary, capricious or discriminatory manner.
Other arbitrators have opined that determining just cause requires the application of a two-pronged test that mandates the employer to establish substantive just cause and then to prove that the punishment fits the offense. In re E.B. Eddy Paper, 111 LA 620 (Arbitrator Brodsky, October 29, 1999).
The Ohio Supreme Court has also long-endorsed the application of the two-pronged standard for evaluation of just cause, by arbitrators, as follows:
“’In applying the test of “just cause” the arbitrator is generally required to determine two factors: (a) has the commission of the misconduct, offense or dereliction of duty, upon which the discipline administered was grounded, been adequately established by the proof; and (b) if proven or admitted, the reasonableness of the disciplinary penalty imposed in the light of the nature, character and gravity thereof – – for as frequently as not the reasonableness of the penalty (as well as the actual commission of the misconduct itself) is questioned or challenged in arbitration.
In the absence of contract language expressly prohibiting the exercise of such power, the arbitrator, by virtue of his authority and duty to fairly and finally settle and adjust (decide) the dispute before him, has the inherent power to determine the sufficiency of the cause and the reasonableness of the penalty imposed.’” Id. at 327, quoting Great Atlantic & Pacific Tea Co. (1962), 63-1 Labor Arbitration Awards, P 8027, at 3090. See, also Volz & Goggin, Elkouri & Elkouri: How Arbitration Works (5 Ed. 1997) 886-888.
Board of Trustees of Miami Twp. v. FOP, OLC, Inc., 81 Ohio St.3d 269; 690 N.E.2d 1262 (1998).
The Ohio Supreme Court has also cited, with approval, the seven tests for just cause used by Arbitrator Carroll Daugherty in Enterprise Wire Co., 46 Lab. Arb. Rep. 359 (1966), which suggests that an arbitrator answer the following seven questions in attempting to determine whether just cause exists in a particular case:
The seven tests, presented as questions, are as follows: “1. Did the company give to the employee forewarning or foreknowledge of the possible or probabl[e] disciplinary consequences of the employee’s conduct?” “2. Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?” “3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?” “4. Was the company’s investigation conducted fairly and objectively?” “5. At the investigation did the ‘judge’ obtain substantial evidence or proof that the employee was guilty as charged?” “6. Has the company applied its rules, order, and penalties evenhandedly and without discrimination to all employees?” “7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee in his service with the company?” Ent. Wire Co., 46 Lab. Arb. Rep. at 363-364.
See Summit County Children Services Board v. Communications Workers of America, Local 4546, 113 Ohio St.3d 291,293; 865 N.E.2d 31 (2007).
In Summit County Children Services Board, supra., the Supreme Court first indicated that the CBA at issue did not define just cause and then it further explained:
Given that the definition of “good cause” can be nebulous and elusive, a consistent framework for determining good cause is critical. Although the Daugherty test has sustained some criticisms over the years, it nevertheless remains viable and presents a helpful and familiar rubric by which an arbitrator can assess whether good cause for discipline exists in a particular circumstance. The definition of “good cause” found in Black’s Law Dictionary – “[a] legally sufficient reason,” (*8th Ed. 2004) 235 – is comparatively of little assistance to the arbitrator, employer, or employee in determining whether good cause is present.
Although we hold that the arbitrator’s use of the Daugherty test in this case was proper, we do not suggest that it is the only proper definition or that parties to a CBA are required to use the Daugherty test.
Id. at 296.
Thus, the logical conclusion to be drawn from a review of the foregoing, is that “just cause” is not subject to precise definition, but, will be defined by the arbitrator, on a case-by-case basis, using concepts of reasonableness and fairness.
Please feel free to contact your OPBA representative with any questions related to the disciplinary process contained in your CBA, or concerning any other matter related to the administration of your bargaining unit’s CBA.