The "just cause" standard has long been a staple of labor
relations in all industries, including health care. Normally, most
arbitrators will find just cause if the preponderance of the
evidence proves the employer's allegation.1 Even where
just cause has been established, however, arbitrators will normally
engage in a secondary inquiry concerning the appropriateness of the
Because it is so well-established, the concept of just cause has
traditionally received little analysis by labor law practitioners
over and above analyzing whether the standard has been met based on
the facts of particular situation.
I myself have practiced labor law for more than 20 years and, at
first, also gave very little thought to the just cause standard.
From the perspective of outside counsel early in my career, the
just cause standard stood on equal footing with a No Strike No
Lockout clause - both were standard clauses that differed
little among union contracts.
My thoughts on the just cause standard began to take shape after
several years working in-house in the health care industry,
especially dealing with resident care issues in nursing homes. Over
time, I realized that the unique nature of health care does not
lend itself well to the application of the traditional just cause
standard in resident care cases, mostly because it is arduous to
present evidence in these cases to establish a "preponderance of
The difficulty in proving just cause in resident care cases is
easily understood. Initially, most resident care cases deal with a
resident making a complaint against an employee for inappropriate
care - more often than not without any other witnesses.
Furthermore, from a health care service provider perspective, most
employers will not subject the complaining resident to attend an
arbitration to provide evidence. We simply use any statement the
resident may have given during the investigation and leave the
weight of the statement up to the arbitrator. Only in truly
exceptional circumstances would we ask a cognitive resident to
attend an arbitration relating to alleged poor treatment.
Finally, and particularly in the long-term care setting, in some
instances the resident is not fully cognitive, setting forth
another evidentiary obstacle to proving just cause.
In an effort to further protect our residents and patients and to
also level the playing field in resident care cases, my employer
decided to take an industry leading approach by using the
bargaining table to attack this problem of proof in just cause
cases. We determined that protecting our residents was every bit
the priority of pressing for a fair economic agreement.
Fortunately, through the years we have been successful in
negotiating several language provisions in most of our union
contracts that have assisted us in protecting our residents by
essentially lowering the just cause standard in resident-care cases
and offering other evidentiary assistance as well. These language
changes won at the bargaining table have aided my employer's
overall efforts to improve our resident care, making our labor
relations approach consistent with the company's overall
First, we addressed the biggest issue head on by proposing to
redefine just cause in resident care cases.
Traditionally, most contracts state very simply that the employer
must have just cause to discipline an employee. In attempting to
lower this standard, we instead proposed (in one form or another)
some version of the following language:
In resident care cases, the employer meets its "just cause"
obligation if it has a reasonable belief that the acts or omissions
called for actually occurred. If the arbitrator determines that
this "just cause" standard was met, the arbitrator may not change
the discipline imposed by the employer.
Interestingly, when our unions understood that we were serious
about making the revised just cause standard equal to our economic
priorities, the unions almost universally agreed to incorporate the
revised just cause standard into our union contracts. The language
is now standard in almost all of our contracts and, we are told,
other health care providers are attempting to follow suit. Our
unions and our employees should be applauded for their cooperation
in this critical area.
The impact of the change in the just cause standard cannot be
underestimated. We have been able to settle many more resident care
cases on significantly better terms than we would have been able to
do absent the revised just cause.
Furthermore, in the isolated instance where we have arbitrated a
case under the revised just cause language, the arbitrator heeded
this precedent-setting standard and found that, under the
language agreed upon by the parties, the employer met its just
cause obligation and, additionally, that the arbitrator had no
contractual authority to change the discipline
Following these successes, my employer has continued to use its
union contracts to add additional resident protections through
collective bargaining. For example, we have also added language
guaranteeing that the arbitrator may not find an adverse inference
from the failure of a resident or family member to testify at an
As a corollary, we have also added language mandating that all
resident and family member statements must be admitted into
evidence despite their hearsay nature; most of those contracts
allow the arbitrator to determine what weight the statements will
be given in rendering a decision.
Additionally, we have also added language strengthening our
ability to deal with employees whom we may have decided not to
terminate but who are later found by a licensing agency to have
abused or neglected a resident. To this end, we have language in
many of our contracts that provides that any employee found by a
state licensing authority to have committed resident abuse or
neglect may not continue to work in our nursing home, even if they
have already received a lesser discipline as a result of the
This seems common sense, I know, but there have been arbitration
decisions upheld by the courts that awarded reinstatement to
employees found by the state licensing agencies to have committed
resident abuse or neglect. Under our language, this situation
cannot occur because our language would allow us to discharge the
offending employee even if he or she had already received a lesser
discipline. In this sense, the language allows us a necessary
second bite at the discipline apple in these important
resident-care cases by avoiding the double jeopardy argument.
In the end, the lesson learned is that labor relations
practitioners can and should use their union contracts to add
additional resident and patient care protections and not to simply
accept that the traditional just cause standard merely because that
has been the accepted standard for many years. We have used
collective bargaining to emphasize the importance of resident and
patient care to our employees and subsequently used contract
administration to reinforce this same point.
1Sweet Sue Kitchens, 120 LA 54 (Greenberg,
2See e.g., Norshipco, 105 LA 1995
(Hockenberry, 1995)(arbitrator found just cause to discipline for
horseplay but not just cause to sustain employer's decision to
3See, Winship Green, AAA 11 300 02729 06
(Harrington, 2007) (arbitrator found just cause expressly relying
on unique just cause language in the parties' contract).