The vast majority of union contracts contain language requiring that the legitimacy of a discharge decision be supported by “cause” or “just cause.”   However, occasionally a collective bargaining agreement does not have an express limitation on the reasons for discharge.  In such cases, the question arises whether a “just cause” standard should be utilized even though it is not specifically found in the contract. Some arbitrators consider a just cause standard as always present even if not specifically contained in the agreement.  Other arbitrators take the position that the failure to include the language in the contract automatically establishes that a just cause requirement does not exist. The author believes that logic and fairness require, in deciding whether a just cause limitation should be implied, arbitrators to evaluate each collective bargaining agreement individually rather than applying the same blanket rule to all of them.  He adopts the view that, even in the absence of explicit language, just cause principles ought to be applied to disciplinary matters unless the collective bargaining agreement taken as a whole[1], or else the parties’ bargaining history[2], indicates to the contrary.  As one arbitrator put it, [i]n grievance arbitration, an arbitrator’s determination is made within the parameters of labor arbitration law and accepted custom, as well as the arbitration provisions of the collective bargaining agreement. Labor arbitration treatises provide guidance regarding the use of the just cause standard. “The central concept permeating discipline and discharge arbitration is ‘just cause.’ … Even in the absence of specific contract language, just cause is the touchstone by which arbitrators judge employer actions.” “Many arbitrators would imply a just cause limitation in any collective agreement. … ‘[T]he prevailing view is that to alter this implied requirement of just cause, the parties must in fact, so specify in their written agreement.”’ [footnotes omitted].  AK Steel Corp. and USWA, Local 523, 38 LAIS 64, 2010 WL 6777218 (Bordone, 2010).

[1] For example, if the contract contains a clause prohibiting an arbitrator from implying a provision not expressly contained in the agreement, Randell Manufacturing, Inc., 838 F.Supp. 325, 144 L.R.R.M. 2982 (E.D. Mich. 1993), or limits challenges of termination decisions to “bad faith” discharges, Pacific Tel. & Tel. Co., 45 LA 655, 656 (Somers, 1965).
[2] See Los Angeles Dodgers, 58 LA 489, 491 (Jones, Jr., 1972)