In a case involving discharge, Arbitrator Carroll Daugherty (42 LA 555) outlined a series of questions to test whether "just cause" existed. They are not all inclusive or necessarily correct. However, their usage can be helpful in determining the worth of a grievance and affording clues as to the best way to win a grievance involving discipline. The very nature of the questions and the sequence in which they have been set forth invite usage. Here are the questions and the notes as determined by the Arbitrator:

Did the employer give forewarning of the possible or probable disciplinary consequences of the member's conduct?

 

• There must have been actual oral or written communication of the rules and penalties to the member, i.e. Work rules, disciplinary grid.
• A finding of lack of such communication does not always require a "no" answer to question one. This is because certain offenses, such as insubordination, coming to work intoxicated, workplace safety, using drugs on the job, and theft of property are so serious that any member of society is expected to know such conduct is offensive and heavily punishable.
• Absent any contractual prohibition or restriction, the employer has the right to unilaterally promulgate reasonable rules and give reasonable orders. They need not have been negotiated with the union.
• Was the employer's rule or order reasonably related to the orderly, efficient, and safe operation of the company's business?

 

Note: If an employee believes the rule or order is unreasonable, they must nevertheless obey (in which case they may file a grievance) unless they sincerely feel that obeying the rule or order would seriously and immediately jeopardize their personal safety or that of another law-abiding individual. Given a firm finding to that effect, the member may properly be said to have had justification for his disobedience. Did the employer, before administering discipline to a member, try to discover whether the member did in fact violate or disobey a rule or order?

 

• This is the member's "day in court" principle. A member has the right to know with reasonable precision the offense with which they are being charged, and to defend their behavior.
• The employer's investigation must normally be conducted before its disciplinary decision is made.

 

There may, of course, be circumstances under which the employer must react immediately to the member's behavior. In such cases, the normally proper action is to suspend the member pending investigation.

 

• Was the employer's investigation conducted fairly and objectively?

During the investigation did the employer obtain substantial evidence or proof the employee is guilty as charged?