Abstract
In Just Cause, Robert Schwartz has set out to help stewards and union advocates successfully challenge workplace penalties assessed under negotiated disciplinary procedures. He does so in the direct and accessible style that characterizes all his handbooks. As such, it is a welcome addition to the literature written for grievance advocates.
The grievance calendar for most union representatives is almost always weighted toward disciplinary grievances. It exhausts time and resources for the local union. Probably more than most unions would like to admit, the union will hand over many of these grievances to the union attorney. Certainly in discharge cases, this is often the practice. It is an understandable decision, but it comes at a cost.
Ultimately the grievance process is about power, most demonstrably so in the disciplinary area. By handing off the grievance calendar to attorneys, the union cedes its power to a third party, and for a number of reasons, that is not necessarily good.
Schwartz’s book, the fourth in his cottage industry of union empowerment, is a needed antidote to this problem. In learning how to challenge disciplinary grievances, many union advocates have had to plow through tomes written for lawyers and arbitrators. Although at times I refer to Elkouri’s How Arbitration Works, I find it almost impossible to recommend it to the steward who needs a quick explanation on how to deal with specific disciplinary issues. The standard grievance books in IR and HR courses are similarly dense. Because of this, labor educators have for years created their own materials and shared them on the listservs.
Along comes Robert Schwartz’s new book, and we can all rest easier. He spends the first seven chapters, about 60 percent of the book, on the concept of just cause. Starting with Carroll Daugherty’s classic “seven tests of just cause,” Schwartz analyzes its weaknesses and comes up with a revised version that is more suited to the arbitration that has evolved in the almost 50 years since the Daugherty decision.
Schwartz’s seven tests include fair notice, prior enforcement, due process, substantial proof, equal treatment, progressive discipline, and mitigating and extenuating circumstances. There is a logic here that reflects how we approach discipline as practitioners. For example, he takes Daugherty’s advance warning and reasonable rule tests together, calling it fair notice. He adds another test, one of prior enforcement or “lax enforcement,” an area that often comes up in stewards’ training. His chapter on due process covers Daugherty’s two tests on investigations and expands both the substantial evidence and equal treatment tests. He takes Daugherty’s final test—the one on penalty—and breaks it down into a chapter on progressive discipline and one on mitigating and extenuating circumstances. These are critical chapters because it is often in these areas that employers do not follow their own playbook and can be successfully challenged.
Each one of these chapters is full of comprehensible explanations, examples, tips, and the kind of nuggets that stewards hang on to when you teach this subject in class. Schwartz carefully annotates his arguments with footnotes. He is also a realist, sharing the limitations of the strategies he presents.
The remainder of the book is devoted to themes that arise in the administration of disciplinary grievances: “obey now and grieve later,” issues with supervisors, off-duty conduct, and a not-so-short list of specific issues, including major offenses and attendance policies. The final chapter explains how to write, investigate, and present the grievance.
I would put this book on the same short list as Schwartz’s now classic “Legal Rights of Union Stewards.” It will certainly help stewards, union administrators, and most important of all, the members they represent.