William J. Wood

1
Progressive Discipline

• William J. Wood
• Employee Relations Administrator/
• Chief negotiator

2
JUST CAUSE The Seven Steps

• Arbitrator Carroll R. Daugherty has reduced the
  basic elements of just cause to seven steps.
  These tests represent a specifically articulated
  analysis of the just cause standard. They are
  meant to be a guideline to supervisors when
  disciplinary action is to be considered.A no
  answer to one or more of the questions means that
  just cause was not satisfied or at least may have
  been seriously weakened. It also means that some
  arbitrary, capricious, or discriminatory elements
  may be present.

3
JUST CAUSE The Seven Steps

• 1. Notice Did the Employer give to the employee
  forewarning or foreknowledge of the possible or
  probable consequence of the employees
  disciplinary conduct?
• 2. Reasonable Rule or Order Was the Employers
  rules or managerial order reasonably related to
  (a) the orderly, efficient, or safe operation of
  the Employers business, and (b) the performance
  that the Employer might properly expect of the
  employee?
• 3. Investigation Did the Employer, before
  administering the discipline, make an effort to
  discover whether the employee did in fact violate
  or disobey a rule or order of management?

4
JUST CAUSE The Seven Steps

• 4. Fair Investigation Was the Employers
  investigation conducted fairly and objectively?
• 5. Proof At the investigation, did the judge
  obtain substantial evidence or proof that the
  employee was guilty as charged?
• 6. Equal Treatment Has the Employer applied its
  rules, orders and penalties even-handedly and
  without discrimination to all employees?

5
JUST CAUSE The Seven Steps

• 7. Penalty Was the degree of discipline
  administered by the Employer in a particular case
  reasonably related to (a) the seriousness of the
  employees proven offense, and (b) the record of
  the employee in his service with the Employer?
• Koven, Adolph M. and Susan L. Smith Just
  Cause The Seven Tests. Pg. 10, Coloracre
  Publication Inc., San Francisco, CA 1985

6
ADDITIONAL JUST CAUSE CONSIDERATIONS

• Timely Employer Action.
• If the employer waits a period of time to
  investigate or charge the employee it may
  interfere with the employees ability to find
  witnesses or evidence. It may also make it
  impossible for the agency to pinpoint exactly
  when the action occurred, making it difficult for
  the employee to refute the charge. In some cases
  the delay may be justified such as cases where
  lengthy investigations were necessary or in cases
  where management did not have knowledge of the
  violation when it occurred. 

7
ADDITIONAL JUST CAUSE CONSIDERATIONS

• Double Jeopardy.
• While double jeopardy is a criminal law theory
  there is developing arbitration case law in this
  area which indicates that an employee cannot be
  subject to discipline and then subsequently be
  disciplined more harshly for the same offense,
  unless additional facts are uncovered later.
  Similarly, if an employee is investigated and
  told that no action will be taken, or is
  counseled, which is not a disciplinary action,
  arbitrators have stated that it is not fair to
  subsequently try to send the employee through the
  disciplinary process for the same offense. 

8
PROCEDURES FOR IMPOSING DISCIPLINE

• Written notice of allegations/charges.
• Mitigation/pre-disciplinary meeting.
• Written notice of discipline

9
TYPES OF DISCIPLINARY ACTION

• Written warning.
• Disciplinary probation.
• Suspension.
• Demotion.
• Termination/dismissal.

10
PROGRESSIVE DISCIPLINE CONSIDERATIONS

• The nature and severity of the offense.
• Prior disciplinary history.
• Performance history.
• Length of service.
• Impact of actions on Employer.
• Amount of discipline necessary to prevent
  repetition of offense.

11
Employee Relations

• WILLIAM J. WOOD, ADMINISTRATOR/CHIEF NEGOTIATOR
• [phone]
• WILLIAM.WOOD_at_NEBRASKA.GOV
•  
• JEANNIE OMEARA, EMPLOYEE RELATIONS
  REPRESENTATIVE
• [phone]
• JEANNIE.OMEARA_at_NEBRASKA.GOV
•  
• GAIL BROLLIAR, ADMINISTRATIVE ASSISTANT
• [phone]
• GAIL.BROLLIAR_at_NEBRASKA.GOV