Whatever the monetary benefits of collective bargaining, be they significant or insignificant, arguably the most important benefit of joint decision making has remained unchanged through good and bad economic times alike. Protection from arbitrary and capricious discipline has remained the rock-solid foundation upon which all other benefits have been based. Recently, however, a crack has developed in that foundation. In order to avoid application of the “just cause” standard for disciplinary action (including termination), arbitrators have been increasingly asked to decide discipline cases based on other contractual provisions, such as the seniority clause in the collective bargaining agreement. This article explores this “end run” around just cause and why arbitrators should resist it.
Most labor agreements specify early on when the seniority clock begins ticking, the unit in which it is earned and over which it can be applied, how it is to be used and is gained, exceptions to seniority rules, and how seniority is lost. It is this last issue and the use to which contract language dealing with this subject has increasingly been put—namely, the evisceration of the “just cause” discipline requirements—that is raising the concern of some arbitrators.