Discipline and discharge cases are some of the most interesting and difficult cases confronting labor arbitrators. In such cases, employees who have been either discharged or otherwise disciplined challenge the adverse employment action usually on the grounds that the employer lacks “just cause” to discipline the employee. Like personal injury cases, discipline and discharge cases commonly involve disagreements regarding the facts of the dispute. Like judges and juries, arbitrators have to assess the credibility of witnesses to sort out what actually happened. However, that is only the very beginning of the inquiry. The arbitrator then has to evaluate a number of other procedural and fairness considerations in order to decide whether the employer had just cause to discipline or discharge the employee. This is a difficult task. In their influential article, Professors Roger Abrams and Dennis Nolan note, “Just cause is obviously not a precise concept. It cannot be applied to a particular dispute by an employer or an arbitrator without analysis and the exercise of judgment.” (Toward a Theory of “Just Cause” in Employee Discipline Cases“, 1985 Duke Law Journal, Vol. 34, p. 593)
Arbitrators have wrestle with the issue of how to exercise that judgment. In 1964, Arbitrator Carroll R. Daugherty proposed a definition of just cause, which has become to be known as the “Seven Question Test.” Over the years, Daugherty’s test has been subject to plenty of commentary. In Arbitral Discretion: The Tests of Just Cause, Professor John Dunsford, in an overlooked but seminal paper makes a convincing case that this popular guideline only goes so far a true “test” of just cause.