Employee Discipline

1
Chapter 10

• Employee Discipline

2
Shift in discipline attitudes

• Slaves in Biblical times gt early factories
• Wagner Act (1935) - First time management held
  legally accountable for employee discipline
• 1940s to present - Influence by labor
  arbitration
• Has society as a whole changed attitudes?
  Consider Child Protective Services...

3
Non-union wrongful discharge

• Based on implied contract (oral and written) to
  develop employee and treat fairly.
• Based on public policy, such as reporting illegal
  company activities (Whistleblowers Act in Texas)
• Implied covenant of good faith and fair dealing
  for at-will employees termination
• Management may overestimate potential costs of
  wrongful discharge - keeps crummy employee

4
Union discipline

• Arbitrator has two choices
• uphold managements decision
• reinstate employee with back pay
• Management loses more cases than it wins
• Reinstated employee may not perform well, so more
  problems created
• Discharge considered economic capital punishment

5
Managements Role

• Management has burden of proof or just cause
• evidence that offense occurred
• Preponderance of the evidence as in civil cases
• Clear and convincing evidence facts highly
  probable
• Beyond a reasonable doubt for criminal casesjust
  like criminal court cases not used by NLRB and
  some think too harsh (eg selling drugs)
• disciplinary action was appropriate
• discipline consistently applied

6
Work Rules

• Necessary to efficient operation
• Cannot have rules that meet all contingencies
• Must be
• reasonable -what about rules of the shop?
• clear - not vague workers aware of rule?
• consequences - price list of standard
• consistent application - past practice?

7
Progressive discipline

• Increasingly severe penalties
• oral warning - informal effort to improve but may
  misunderstand seriousness
• written warning - summarizes oral and filed
• suspension - usually no pay
• discharge - last resort
• Statute of limitations unless price list
• Last chance agreement - similar to probation
  rehabilitative aspect

8
Mitigating Circumstances

• Management contributed to the problem, such as
  faulty equipment
• Circumstances so unusual it probably wont happen
  again
• Personal factors, such as marital, financial or
  substance abuse troubled employee
• Most common is employees work record
• Just cause vs. public policy

9
Due process

• Substantive aspects - purpose of work rules
• Procedural are usually covered in labor
  agreements, such as time limits, union
  representation, and written notification
• Weingarten decision
• Employee ASKED for union representation during
  investigatory interview with potential
  disciplinary action but was denied other
  evidence can prove guilt
• Company committed unfair labor practice
• Double jeopardy - management should make clear if
  decision is NOT final, only tentative