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Employee Discipline

The Act. Was the Act IntentionalGrossly negligentSimply negligentNo act at all. The Consequence of the Act. From the Reasonable Prospective of the EmployerWhere the consequences Significantinsignificant. The Modifiers. Employee Record ModifiersEmployer Activity Modifiers. Employee Activity Modifiers.

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Employee Discipline

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    1. Employee Discipline

    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

    5. Employee Activity Modifiers Length of Service The More Good Service the Better for the Employee

    6. Employee Activity Modifiers Quality of Service Look to employee evaluations Look to disciplinary history

    7. 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

    8. 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

    9. The Employer Activity Modifiers Was the rule fair and work related

    10. The Employer Activity Modifiers Was the investigation fair Were necessary witnesses interviewed Were Weingarten rights observed Was the investigation shared with the Union

    11. The Employer Activity Modifiers Has there been a history of discipline for similar infractions elsewhere in the organization

    12. Case #1 Near 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?

    13. Case #2 Five “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?

    14. Case #3 The 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 what’s 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?

    15. Case #4 Under 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?

    16. Case #5 At 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?

    17. Case #6 A high school teacher broke into his ex-wife’s 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?

    18. Case #7 A 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?

    19. Case #8 A 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?

    20. Case #11 At 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?

    21. THE SEVEN TESTS OF JUST CAUSE

    22. 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.

    23. WAS THE EMPLOYER’S RULE OR ORDER REASONABLY RELATED TO EFFICIENT AND SAFE OPERATIONS? A NONSENSICAL RULE OR ORDER WILL NOT BE ENFORCED

    24. 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.

    25. WAS THE INVESTIGATION FAIR AND OBJECTIVE?

    26. 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

    27. 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

    28. WAS THE PENALTY REASONABLY RELATED TO THE SERIOUSNESS OF THE OFFENSE AND THE PAST RECORD? IF EMPLOYEE A’S 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.

    29. 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

    30. Spanu and road rage Arbitrator Levak 2002 Fred Meyer is the company

    31. 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

    32. Citations and resolution of criminal proceedings Both drivers cited Spanu’s case is dismissed post termination Other driver doesn’t show in court and there is a warrant out for his arrest

    33. 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

    34. Employer’s Contention Egregious misconduct No prior notice needed since it is one of the “seven deadly sins” in the labor agreement

    35. 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 Employer’s 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.

    36. Union’s 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

    37. Arbitrator’s 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?

    38. STANDARD OF PROOF CLEAR AND CONVINCING EVIDENCE DISTINGUISHED FROM PREPONDERANCE OF EVIDENCE

    39. Resolution of tests Notice is not an issue, driver’s shouldn’t 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 Spanu’s honesty with the employer

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