Phil Cohen is Special Projects Coordinator for Workers United/SEIU with thirty years in the field. He’s forced employers to reinstate hundreds of terminated workers by citing the Just Cause Doctrine, and prevented the firing of many others.
In this episode of Enforcing Your Rights, he explains how to apply the Seven Tests of Just Cause in the real world. The entertaining and informative narrative is seasoned with anecdotes based on his experience.
Click on the title of Phil’s latest book, Fighting Union Busters in a Carolina Carpet Mill, for a 40% discount + a free CD of working class music.
(c)2022 Phil Cohen
My name is Phil Cohen. I’m Special Projects Coordinator for Workers United/SEIU with 30 years in the field.
If you ask most workers about the most important part of a union contract, they’ll usually say money or seniority. But both answers are wrong. The most important part of a union contract lies in two simple words: Just Cause. Sometimes buried within the most unlikely contract article, you’ll find, “the company can discipline or fire employees for just cause.”
These two short words legally evoke the Just Cause Doctrine. It’s been interpreted and defined over decades of litigation, and requires management to meet seven tests before they can uphold discipline or discharge.
By contrast, nonunion plants are legally covered by the Employment-at-Will Doctrine. In plain English, management can legally fire a worker for any reason, without justification.
- It means if your supervisor doesn’t like your personality, even if you do a good job, he can fire you.
- A supervisor can fire a worker with 30 years seniority to make room for his deadbeat nephew.
- Management can fire a worker because they suspect wrongdoing, even if they can’t prove it.
But in union facilities, due process and democracy penetrate the plant gate onto the shop floor. The true value of just cause extends well beyond remedied injustices. It means countless abuses of authority never take place, because management is aware of the legal consequences. An employee who comes to work and does their job need not fear losing favor with a supervisor, or being bullied.
Just cause is enforced through the grievance and arbitration language in a union contract. Workers are represented by the union during an in-house grievance process and if a settlement can’t be reached, the union can take the case before an arbitrator whose decision is final and binding.
Let’s go through the Seven Tests of Just Cause:
1. Can management prove the employee was guilty as charged?
In nonunion plants there is no presumption of innocence. A worker is guilty until proven innocent. Management will sometimes fabricate evidence to get rid of someone who disagreed with them, and there’s no legal remedy.
Under union contracts, management is held to a strict burden of proof, similar to a prosecutor in criminal court. It’s not about what the company thinks they know….but what they can prove.
I once represented a forklift driver in a warehouse who opened the package of a CD player and then took it with him. Management had suspected him of stealing, lay hidden in wait, and jumped on him as he started to drive away.
The worker claimed he’d discovered the damaged package and was taking it to his supervisor’s office. When I argued the case, I informed senior management that their lackeys had acted prematurely. They should have followed their suspect to see if he headed to the supervisor or his locker. There was no solid proof as to which version was true. The worker kept his job.
I knew damn well the employee was guilty as sin but had no qualms about representing him. Corporations are represented by a room full of high-priced lawyers and executives who routinely exonerate them for crimes far worse than any worker could commit. The only one a terminated employee has in his corner is me. It was management’s job to follow the contract and prove their case.
In test #1, the company has to prove a worker’s guilt. But even when they can, there are 6 other tests that can overturn the discipline. However, these are called affirmative defenses. The union has to prove these violations of just cause occurred:
2. Was the plant rule enforced the same for everyone?
This is referred to as disparate enforcement of plant rules. It comes as a surprise to most workers that this has nothing to do with the fairness of equal treatment. Rather, just cause demands an employer provide the workforce with clear and unambiguous notice of what’s expected.
Let me offer an oversimplified example to make a point. Let’s say there’s a plant rule that you get fired for chewing gum at work. But you’ve observed co-workers chewing gum in the presence of supervisors and not getting disciplined or even told to stop.
So, you figure it’s like fireworks on the 4th of July. It’s against the law but no one cares. One day you forget to spit out your gum before entering the plant and get fired. Management proudly waves its rule book in your face. A union rep could win that case standing on his head. You were confused by the double standard. Management failed in its just cause responsibilities by sending a mixed message.
I represented workers at a Kmart Distribution Center for 15 years. They had a rule about maintaining Strict Business Relations. It included every form of rude behavior under one rule, including fighting and profanity.
A woman on 3rd shift was fired for having an argument with a temp in the breakroom and pushing him back against a vending machine. It was her final write-up in progressive discipline.
I was able to prove her supervisor had a ritual of telling profane jokes at Friday night start-up meetings. I argued before an arbitrator this sent the grievant a message that management didn’t take the Strict Business Relations rule seriously. She got her job back with two years’ pay and a clean record.
But remember: this was an affirmative defense. Her word against the supervisor’s wouldn’t have done it. I needed several other witnesses to corroborate the supervisor’s behavior. The union had to prove a consistent pattern of management tolerating the rule violation. One isolated incident wouldn’t have been enough.
3. Does the punishment fit the crime?
This one is fairly straightforward. Every company publishes plant rules and the discipline for violating them. There’s a long list of rule violations resulting in progressive discipline. A certain number of write-ups within a year are grounds for discharge. There’s a smaller list of serious offences leading to immediate termination.
When a worker gets fired for an infraction that only merits a write-up under the company’s own rules, the punishment doesn’t fit the crime.
There’s also a trickier question: Did management make an unreasonable application of a rule that wasn’t consistent with its original intent?
I once represented workers at a factory with rules calling for immediate discharge of someone caught smoking in the plant. At employee meetings, management had explained the reason for this strict regulation was the potential for fire or machine damage in the work area.
One day, a worker was fired for smoking in the rest room. I successfully argued this was an unreasonably extreme interpretation of the company’s rule. The incident had not occurred in the work area, so no serious risks had been posed. The termination was reduced to a write-up.
4. Did management clearly communicate the rule to employees?
This again ties in to one of the underlying principles of just cause: Workers have a right to understand the rules and consequences for violating them.
There are situations where management contradicts itself. The employee handbook may state that the penalty for a particular rule violation is discharge, but an old posting remains on the bulletin board, saying it results in a write-up. Someone fired under this rule will likely win their case.
There are times when the company fails to properly communicate with only one worker. Arbitrators have consistently ruled that progressive discipline is intended to be informative rather than punitive. Employees are advised of their mistakes to provide an opportunity for improvement. Discipline must therefore be administered in a timely manner. When someone receives a write-up several weeks after committing an infraction, it’s automatically null-and-void under just cause.
Timeliness has never been legally defined, but the overall standards of reasonableness and normal industrial practice apply. One thing is certain: when a worker receives two write-ups at once for the same type of rule violation, it’s an easy win for the union.
5. Were there mitigating circumstances beyond the employee’s control that contributed to the reason for discipline?
More than any other test, this places an enormous burden of proof on the union. But I’ve saved a number of jobs by providing the proper evidence.
Several of them involved battered women who’d maxed out their attendance policy. I had to present witnesses including family members, neighbors, and doctors, along with police reports. I also had to prove that the abusive spouse was no longer a threat (due to incarceration, relocation, or a restraining order.) No matter how tragic the circumstances, arbitrators don’t expect a company to compromise its productivity because of someone’s ongoing personal problems.
I had a truly unique and interesting case involving mitigating circumstances. A 2nd shift warehouse employee named Steve had worked at the facility since it opened. He was universally liked and respected by both management and co-workers as a really nice guy who did a good job.
One night, he was observed wandering aimlessly around his department, until he disappeared entirely. He was later observed sitting in his car during working hours and then urinating in the parking lot. The company fired him the next day.
During our interview, Steve told me he’d been completely out of it and had no idea what he’d been doing. I asked if anything like this had ever happened before.
He said a year ago, he’d fallen into a similar trance in a department store and then passed out. He was diagnosed with severe diabetes and put on medication. I told him to go see his doctor, both to save his job and health.
He returned with a doctor’s note stating his blood sugar levels had been off the charts, he’d been placed on different medication, and his sugar levels were once again normal. I presented this to the human resource director, along with police and medical records of the prior incident.
Management was happy to learn the truth and reinstate a good employee. But they hadn’t cared enough to conduct their own investigation and find out for themselves.
6. Did the company perform a fair and thorough investigation?
This sometimes plays out as a supporting argument when management fails to meet its burden of proof. During an investigation leading to discharge, if management only interviews witnesses who don’t belong to the union and bypasses witnesses who are union members, they weren’t being impartial.
7. Was the plant rule reasonable?
Employers have a just cause obligation to create rules that are within the bounds of normal industrial practice. This is somewhat subjective and various arbitrators will draw the line in different places. However, all would agree that an attendance policy calling for termination after only two absences in a year was unreasonable.
But there’s sometimes a double-edged sword. When a company writes a new rule, some contracts give the union 60 days to grieve and arbitrate reasonableness. Under these circumstances, it’s hard to argue five years later that a rule is unreasonable, if it hadn’t been previously challenged.
The most important thing to keep in mind is that in nonunion plants, management can implement utterly ridiculous rules, fail to properly communicate, selectively enforce, and not have to prove a damn thing.
Those are your rights under just cause, if you’re fortunate enough to have a union contract. If not, it gives you one more good reason to fight for one.
In addition to being a union organizer, I write books about my exploits in the field. My latest, Fighting Union Busters in a Carolina Carpet Mill, was released by McFarland & Company. It’s about a campaign I recently directed, investigating and exposing an illegal union busting plot by a Fortune 500 company. During the process, I represented a number of workers under just cause and the story explains how the principles we discussed today unfolded in the real world.
The best place to get it is my website, fightingunionbusters.org, where I’m passing on my 40% author’s discount to working people, and including a free CD of working class music.
I’d like to thank Mark Gevaart, host of My Labor Radio, for his recording and production services. You can listen to his outstanding podcasts by following the links at mylaborradio.org