Employee Discipline

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Employee Discipline
2
The Act

• Was the Act
• Intentional
• Grossly negligent
• Simply negligent
• No act at all

3
The Consequence of the Act

• From the Reasonable Prospective of the Employer
• Where the consequences
• Significant
• insignificant

4
The Modifiers

• Employee Record Modifiers
• Employer Activity Modifiers

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Employee Activity Modifiers

• Length of Service
• The More Good Service the Better for the Employee

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Employee Activity Modifiers

• Quality of Service
• Look to employee evaluations
• Look to disciplinary history

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Employee Activity Modifiers

• Disciplinary History
• The older the discipline the less relevant
• The more significant the discipline the more
  relevant
• Discipline that is similar to the current alleged
  act hold more weight

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The Employer Activity Modifiers

• Was a warning given to employees
• Was it necessary under the circumstances
• What are the employer rules , if any
• Was the rule communicated to the Employee

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The Employer Activity Modifiers

• Was the rule fair and work related

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The Employer Activity Modifiers

• Was the investigation fair
• Were necessary witnesses interviewed
• Were Weingarten rights observed
• Was the investigation shared with the Union

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The Employer Activity Modifiers

• Has there been a history of discipline for
  similar infractions elsewhere in the organization

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Case 1Near the end of his shift, the grievant
took a toolbox filled with expensive tools (all
owned by the company) and placed the toolbox next
to the fence which lined the parking lot. Another
employee spotted the grievant walking away from
the toolbox in the snow and alerted plant
security. Suspecting that the offending employee
would return, security decided to videotape the
expected pick-up.Late that evening, under
cover of darkness, the grievant drove up to the
fence outside the plant and got out of his
vehicle. He hesitated and drove away. After
viewing the tape, management discharged the
grievant for violating a long-standing policy of
removing tools from the plant.The Union argued
that from the plant means outside the perimeter
of the fence, and that there was no taking, so
there was no theft. Further, the Union argued
that it was entrapment and that security should
have just returned the tools to the tool locker.
The grievant has 5 years on the job and average
service.Management has offered proof that theft
of company property has always been a serious
problem at the plant, and argues that the risk of
future thefts by the grievant is too high. The
grievant did not testify.Are you likely to
uphold the discharge?
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Case 2Five straight males working in the
parts storeroom enjoy harassing each other,
constantly referring to their sexual prowess or
lack thereof. A new supervisor is hired and tells
them to stop the sex jokes and not make
references to their anatomy. Two of the guys
continue. After another incident of sexual banter
between themselves, the supervisor issues each of
them a 2-day suspension on the grounds of
insubordination and violation of sexual
harassment policy.Are you likely to uphold the
2-day suspensions?
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Case 3The Rule reads, Threatening,
intimidating, coercing or interfering with
employees or supervision, including harassing
employees on account of their race, sex, or
disability will be subject to discipline, up to
and including discharge. For purposes of the
hearing, management has italicized the relevant
words.The workplace has consisted of males up
until 1995. Grievant is a 20-year employee who
knew the rules. But at the hearing, he testifies
that he has never worked with women before and if
he had known that what he did in Oct. 2000 was
sexual harassment, he would not have done it. He
put his arm around a female co-worker and said,
when I ask you whats up, just say me.There is
some hearsay evidence that the grievant engaged
in similar behavior in the past, but none of the
alleged female victims testified. The only woman
to testify is the one in this case.Do you uphold
the 2-week suspension?
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Case 4Under the contract, management has the
right to transfer bargaining unit members to
other departments during emergency periods. The
parties stipulate that this was an emergency
period.On Friday, the grievant was ordered to
work in another department over the weekend. The
supervisor for this department was a male who the
grievant had accused of sexual harassment a month
earlier (unwanted touching). Management had
reprimanded the supervisor and sent him to
sensitivity training. The grievant knew all of
this, but refused to work under him for the two
weekend emergency shifts.The human resources
department was brought in and repeated the order
to either work under him the next day and Sunday
or be disciplined. On Saturday morning, the
grievant showed up for work, but again refused to
work for the sexual harasser. Human Resources
sent her home. On Monday, when she returned to
work, her supervisor issued a 2-day suspension
for insubordination.Are you likely to uphold the
2-day suspension?
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Case 5At the end of a shift, two employees
engaged in a fist-fight in the company parking
lot. According to the witnesses, the one employee
was the aggressor. Further, that the fight was
about their competing romantic interest in a
female co-worker.Management discharged both men.
The aggressor quit and took another job. The
other employee who received six facial stitches
filed a grievance seeking reinstatement with back
pay.Citing a zero-tolerance policy, management
argued at the hearing that it cannot tolerate
fighting and that the grievant had the
opportunity to walk away.Are you likely to
uphold the discharge?
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Case 6A high school teacher broke into his
ex-wifes home with the intent to retrieve his
personal belongings (the day after the divorce
was finalized). Charged with breaking and
entering, he received a suspended sentence. In
this city of 25,000, the local newspaper and
television station covered the arrest and then
the sentencing, each time identifying the
school.Is there a nexus?
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Case 7A server at a company pled guilty to
shoplifting (a misdemeanor) and received a 200
fine. She occasionally covers for cashiers
between shifts.Would you find nexus and likely
uphold the discharge?
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Case 8A social worker at a private agency under
contract with the county wrote a letter to the
editor that was published in the local
newspaper. In the letter written on his own time,
he referred to the head of the county social
services department as an idiot. This county
dept. annually recommends whether to continue its
contract with the agency. The agency issued a
2-week suspension.Is there a sufficient nexus
for the discipline to be issued for just cause?
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Case 11At a convention center, a supervisor
gave a clear and direct order to the grievant to
more barriers from a bleacher section which the
licensed user (a professional basketball team)
was to have removed the previous evening. The
grievant replied, F--- this and walked away.
About an hour later, the grievant completed the
task. The grievant was charged with
insubordination and received a 2-day suspension.
At the hearing, the union argued that the f-word
and all its variation are regularly used by all
workers, including supervisors, so in light of
the fact that the grievant performed the task,
the language cannot be interpreted to be
insubordination.Do you uphold the 2-day
suspension?
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• THE SEVEN TESTS
• OF JUST CAUSE

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WAS THE EMPLOYEE ADEQUATELY WARNED OF THE
CONSEQUENCES OF HIS CONDUCT?

• THE WARNING MAY BE GIVEN ORALLY OR IN PRINTED
  FORM. AN EXCEPTION MAY BE MADE FOR CERTAIN
  CONDUCT, SUCH AS INSUBORDINATION, COMING TO WORK
  DRUNK, DRINKING ON THE JOB, OR STEALING EMPLOYER
  PROPERTY, THAT IS SO SERIOUS THAT THE EMPLOYEE IS
  EXPECTED TO KNOW IT WILL BE PUNISHABLE.

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• WAS THE EMPLOYERS RULE OR ORDER REASONABLY
  RELATED TO EFFICIENT AND SAFE OPERATIONS?
• A NONSENSICAL RULE OR ORDER WILL NOT BE ENFORCED

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DID MANAGEMENT INVESTIGATE BEFORE ADMINISTERING
THE DISCIPLINE?

• THE INVESTIGATION NORMALLY SHOULD BE MADE BEFORE
  THE DECISION TO DISCIPLINE IS MADE. WHERE
  IMMEDIATE ACTION IS REQUIRED, HOWEVER, THE BEST
  COURSE IS TO SUSPEND THE EMPLOYEE PENDING
  INVESTIGATION WITH THE UNDERSTANDING THAT HE WILL
  BE RESTORED TO HIS JOB AND PAID FOR TIME LOST IF
  HE IS FOUND NOT GUILTY.

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• WAS THE INVESTIGATION FAIR AND OBJECTIVE?

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DID THE INVESTIGATION PRODUCE SUBSTANTIAL
EVIDENCE OR PROOF OF GUILT?

• IT IS NOT REQUIRED THAT THE EVIDENCE BE
  PREPONDERANT, CONCLUSIVE, OR BEYOND REASONABLE
  DOUBT, EXCEPT WHERE THE ALLEGED MISCONDUCT IS OF
  SUCH A CRIMINAL OR REPREHENSIBLE NATURE AS TO
  STIGMATIZE THE EMPLOYEE AND SERIOUSLY IMPAIR HIS
  CHANCES FOR FUTURE EMPLOYMENT

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WERE THE RULES, ORDERS, AND PENALTIES APPLIED
EVEN-HANDEDLY AND WITHOUT DISCRIMINATION?.

• IF ENFORCEMENT HAS BEEN LAX IN THE PAST,
  MANAGEMENT CANNOT SUDDENLY REVERSE ITS COURSE AND
  BEGIN TO CRACK DOWN WITHOUT FIRST WARNING
  EMPLOYEES OF ITS INTENT

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WAS THE PENALTY REASONABLY RELATED TO THE
SERIOUSNESS OF THE OFFENSE AND THE PAST RECORD?

• IF EMPLOYEE AS PAST RECORD IS SIGNIFICANTLY
  BETTER THAN THAT OF EMPLOYEE B, THE EMPLOYER
  PROPERLY MAY GIVE A A SLIGHTER PUNISHMENT THAN B
  FOR THE SAME OFFENSE.

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THE PROBLEM WITH THE 7 TESTS

• THEY SEEM MORE DESIGNED FOR A SUBSTANTIAL
  EVIDENCE REVIEW OF THE RECORD THAT MANAGEMENT
  CREATED AT THE TIME OF THE DECISION
• CONTEMPLATES THAT THE DECISION OF MANAGEMENT IS
  REVIEWED BY THE ARBITRATOR MUCH IN THE WAY THAT
  AN APPEALS COURT MIGHT REVIEW A TRIAL COURT
• BUT THE ARBITRATORS REVIEW OF DISCIPLINE IS DE
  NOVO

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Spanu and road rage

• Arbitrator Levak
• 2002
• Fred Meyer is the company

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Facts

• Spanu cut off and harassed by another driver
• Spanu follows him off the freeway to get drivers
  license plat number
• After getting out of truck, driver tries to run
  over Spanu at least twice.
• Spanu kicks car
• Spanu throws a metal rod at car

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Citations and resolution of criminal proceedings

• Both drivers cited
• Spanus case is dismissed post termination
• Other driver doesnt show in court and there is a
  warrant out for his arrest

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Company knowledge, investigation and decision

• Spanu tells the company of the incident
• Company questions him and gets the police report
  of the incident
• Company terminates

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Employers Contention

• Egregious misconduct
• No prior notice needed since it is one of the
  seven deadly sins in the labor agreement

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WHAT THE CONTRACT SAYS

• ARTICLE 4.1- DISCHARGE OR SUSPENSION
• The Employer may discharge or suspend an employee
  for just cause, but no employee shall be
  discharged or suspended unless written warning
  notice shall previously have been given to such
  employee of a complaint against him concerning
  his work, conduct, or violation of Company rules,
  except that no such prior warning notice shall be
  necessary if the cause for discharge or
  suspension is dishonesty, drinking related to his
  employment, illegal use, selling, transportation,
  or possession of drugs, gross insubordination,
  recklessness, carrying unauthorized passengers,
  or willful, wanton and malicious damage to the
  Employers property, or other such misconduct
  which is so serious in nature as to justify
  immediate suspension or discharge. Company rules
  shall be made available to employees in writing.

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Unions Contentions

• Behavior was not egregious conduct
• Many mitigating factors
• Spanu was not the aggressor
• He acted in self defense
• He reported the incident even though management
  might never have heard of it otherwise
• 10 years of unblemished service

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Arbitrators standard

• Did the grievant have notice
• Was there due process and fairness
• Has the company proved by clear and convincing
  evidence that grievant committed the act
• Was the penalty reasonable
• Where are the 7 tests?

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STANDARD OF PROOF

• CLEAR AND CONVINCING EVIDENCE
• DISTINGUISHED FROM PREPONDERANCE OF EVIDENCE

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Resolution of tests

• Notice is not an issue, drivers shouldnt engage
  in road rage
• Any fool should know rule!
• Spanu did not recklessly engage the other driver
• It was a lapse in judgment and self defense
• As to the appropriateness of the penalty
  consideration must be given to Spanus honesty
  with the employer