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Performance Management
Just Cause Standards for Represented Employees
Just Cause Standard:  Labor contracts permit discipline for “just cause.” In Grief Bros. Cooperage Corp., 42 Labor Arb. Reports 555 (1964) the arbitrator provided a detailed explanation of the phrase. The phrase was translated into a series of “ultimate” questions that the employer must answer to support a discipline of a represented employee. The seven (7) elements of just cause are the criteria that must be met before administering discipline. Note: Just Cause Standards do not apply to temporary or limited duration employees. They are outlined below:
  1. Did the employer forewarn the employee of possible consequences of the conduct?
Are the rules or policies about the type of conduct at issue? Are they oral or written? If oral, how would the employee hear about them? If written, has the employee been given access? Did the employee say they knew about the rule? How would the employee know about the rule? If there is no formal or informal rule, is the conduct the type that employees could still be expected to know was not permitted?
  1. Was the rule or policy involved reasonably related to the orderly, efficient, and safe operation of the agency?
Why was the rule put in place? Does the rule protect others? Does the rule fairly give guidance to the employee about how to act? Without the rule would the employee be uncertain what to do?
  1. Before administering discipline did the employer make an effort to discover whether the employee did, in fact, violate or disobey the rule or order?
Did anyone find out what happened? Who was the person? Is there a report? If no report, is there a reason that one was not drafted? Are there notes showing an investigation?
  1. Was the employer’s investigation conducted fairly and objectively?
Are there any prior problems between the investigator and the employee that could be raised to question the objectivity of investigator? Can any claim of bias be made based on the wording in the investigation report? Did the investigator evidence anger or frustration during the interview that could be raised to claim bias? Does the report cover the facts, both harmful and helpful, to the employee? Were all logical sources covered that could provide information or does the report leave questions in the mind of the reader about why other sources were not contacted?
  1. In an investigation, did the employer obtain sufficient evidence or proof that the employee was guilty as charged?
What did the employee do? Is there any physical evidence to show what happened? Are there any witnesses who observed the conduct? Are the conclusions about what happened logical in light of the existing evidence? Is there “speculation” to fill in gaps in the evidence? Do the conclusions take into account all the evidence, even if some evidence is contrary to other evidence?
  1. Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination?
Has this conduct, or similar conduct, happened before in this workplace? Was discipline imposed? At what level? Did the prior disciplines contain any explanation to support why they were given? If this is the first time this type of conduct has occurred, what factors make the agency want to impose discipline? Examples of factors: an employee needs to understand not to do it again; other employees would do the same if this employee allowed to; past actions of the employee show the employee needs to be put on notice; or the conduct has the potential to create great risk for the employer.
  1. Was the degree of discipline reasonably related to the seriousness of the offense and the employee’s record?
On a continuum, is it intrinsically unethical behavior on one extreme or a lapse in judgment on the other extreme? Has there been adverse publicity about the conduct? Would publicity about the conduct be detrimental to the public’s view of the employer? Should employee have known better? Was the conduct intentionally done or the result of poor judgment?