Portside

This book review appears in the latest issue of,
WORKINGUSA: THE JOURNAL OF LABOR AND SOCIETY
Volume 16, Issue 2, pages 321–324, June 2013

Robert M. Schwartz, author of several popular union labor law guides, has written a new book entitled Just Cause: A Union Guide to Winning Disciplinary Cases.

The sixth book in Schwartz’s Work Rights Press series, it draws on the broad tradition of “do-it-yourself” and “self-help” books. Due to the demands of their jobs, the average steward or workplace activist does not have much time for educational reading on the side. Yet job stewards are expected to be familiar with a large body of information related to job rights and benefits, collective bargaining procedures, and in some cases, union administration and financial record-keeping.

All of Schwartz’s books make arcane legal decisions, legislative history, and the workings of labor-related administrative agencies highly accessible. Schwartz writes short, punchy, and understandable sentences and paragraphs, and uses sidebar boxes and Q&A sections at the end of each chapter. He also employs an excellent cartoonist, Nick Thorkelson, to illustrate his work in humorous fashion.

The beauty of Schwartz’s books is their accessible organization and the ease with which the reader can find relevant information when needed.

Just Cause: A Union Guide to Winning Disciplinary Cases is no exception. Based on more than four years of research into 15,000 arbitration awards and the author’s long experience representing unions, the book presents a new method to analyze and present disciplinary cases. The book begins by reviewing the “Seven Tests of Just Cause,” developed by arbitrator Carroll Daugherty in 1964. While several of these tests have been accepted by the arbitration profession, others, such as the necessity for an “objective” investigation, have not. According to Schwartz, if they are no longer being used by arbitrators as benchmarks for their decisions, they must be discarded or modified.

Moreover, says Schwartz, the “Seven Tests,” widely used by unions in the U.S. and Canada, inexplicably omitted two concepts frequently cited by arbitrators when overturning punishments: progressive discipline and mitigating circumstances.

Modifying the seven tests, Schwartz presents what he terms is the far more widely accepted “Seven Basic Principles of Just Cause.” These are the following:
1. Fair notice: An employer may not discipline an employee for violating a rule or standard whose nature and penalties have not been made known.
2. Consistency: An employee may not be penalized for violating a rule or standard that the employer has failed to enforce for a prolonged period.
3. Due process: An employer must conduct an interview or a hearing before issuing discipline, must take action promptly, and must list charges precisely. Once assessed, discipline may not be increased.
4. Substantial proof: Charges must be proven by substantial and credible evidence.
5. Equal treatment: Unless a valid distinction justifies a higher penalty, an employer may not assess a considerably stronger punishment against one employee than it assessed against another known to have committed the same or a substantially similar offense.
6. Progressive discipline: When responding to misconduct that is short of egregious, the employer must issue at least one level of discipline that allows the employee an opportunity to improve.
7. Mitigating and extenuating circumstances: Discipline must be proportional to the gravity of the offense, taking into account any mitigating, extenuating, or aggravating circumstances.

Schwartz explains each principle, cites relevant quotations from authorities, provides sample letters and checklists, and shares many “grievance tips” directed to shop stewards and union officers.

The book’s final chapter addresses practical subjects, such as writing up a grievance, deadlines, requesting information, presenting a winning argument and building solidarity.

There is another reason to be excited about Schwartz’s book. As the new authoritative guide to what constitutes reasonable grounds for employer discipline or discharge, Just Cause lays out a framework that could be applied more broadly to all workers.

Following the defeat of the Employee Free Choice Act (EFCA), a debate within the labor movement has already begun about the next steps for labor law reform. There is widespread agreement that unlike the EFCA, future reform proposals must be wrapped in a much broader mantel that will appeal to all workers—not just union members.

Successful past reforms led by the labor movement have won minimum wage, other wage and hour laws, child labor laws, health and safety laws, and prohibitions against discrimination. What is left to achieve that might inspire all workers—union and nonunion alike?  “Employment security” could be the remaining frontier. A campaign to pass a “just cause” standard into state laws would spur union growth since the number one reason why workers are afraid of union organizing is the knowledge that they are likely to be terminated.

The U.S. is alone among industrialized countries in allowing “at-will” employees to be terminated for arbitrary reasons. France, Germany, Japan, and the U.K., and even the Republic of South Africa, require employers to have a just cause to dismiss non-probationary employees.

Winning "just cause" legislation would certainly not be easy. But building a movement to win it on a similar scale to the effort put behind the EFCA would offer union leaders and activists an opportunity to champion an issue that would benefit all workers. Short of winning state or federal legislation, local unions, Central Labor Councils, and workers’ centers could seek to enforce a just cause standard through workers’ rights boards and/or community pressure. By educating more workers about the benefits of the job security features of union contracts and raising expectations for a just cause standard, such a campaign could also spur union growth.

By popularizing and refining the “just cause” concept, Schwartz’s book may help lay important groundwork for more workers (and communities) to begin thinking how that noble standard could be applied much more broadly.

Rand Wilson has worked as a union organizer and labor communicator for more than thirty years. Wilson has worked on a wide variety of contract campaigns and strikes with Teamsters, telecom, healthcare, and public service employees. Wilson coordinated membership communications and public relations for the Teamsters strike at United Parcel Service in 1997. The historic strike garnered broad public support and brought increased attention to the problems facing part-time and temporary workers. He currently works as an organizer in Boston for SEIU Local 888, a statewide union of public service, not-for-profit, and higher education workers.

Address correspondence to: Rand Wilson, 3 Lester Terrace, Somerville, MA, 02144, USA. E-mail: rand.wilson@gmail.com

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Schwartz, Robert M. Just Cause: A Union Guide to Winning Disciplinary Cases. Cambridge, MA
Work Rights Press, 2012. 176 pp. US$20.00 (paperback).  http://www.workrightspress.com/