When Discipline Is Required (Robert F. Wayland Expert Advice)

by Robert F. Wayland  on Monday, Aug. 18, 2014 12:00 am  

Robert F. Wayland

Employers know the importance of duty assignments along with providing clear directions for their employees. But when disciplinary action is taken and a labor contract exists, employees and employers may enter into third-party arbitrations. Because a labor arbitrator is a third-party, neutral decision-maker selected by the other two parties to hear and resolve a dispute, understanding the arbitrator’s viewpoint on disciplinary actions can provide employers guidance even before corrective action becomes necessary.

Most labor arbitration cases assigned to arbitrators involve challenges by a labor union representative on behalf of an employee for some punitive disciplinary action taken by the employer. These are cases where union and management representatives have negotiated a collective bargaining agreement, typically referred to as a “labor contract,” including a grievance and arbitration process for final and binding settlement of labor disputes.

Although such grievance and arbitration processes typically apply to union-represented employees, the same principles that a labor arbitrator would use in issuing a decision in such cases serve as guideposts for nonunion-represented employers to use.

Fairness, consistency and due process are key factors regarding decisions for taking any disciplinary action, particularly discharge, with problem employees. Arbitrators are more likely to uphold immediate discharge for serious unacceptable behavior as long as the employer shows a legitimate reason for the discharge, including such things as gross negligence or complete disregard for established work rules. Employers also must show that a fair and thorough investigation was made to prove that the employee was guilty of the charged infraction and that the employee’s treatment was consistent with that of other employees in similar situations.

For less serious infractions, arbitrators look for the use of progressive discipline in an effort to correct the improper behavior. Progressive discipline is the application of corrective measures by increasing degrees while focusing on early correction of unacceptable behavior with the employee taking responsibility for correcting his or her behavior. Employees should always know where they stand regarding offenses, what improvement is expected of them and what will happen next if improvement is not made.

Ultimately, employers are expected to prove they have just or proper cause, a common standard in labor arbitration, to justify the penalty for the employee’s infraction. Most labor union contracts and many employers’ personnel rules provide some assurance to employees that they will not be disciplined without just cause. Although not always defined, a long-established test used by arbitrators to determine if the “just cause” standard is met was developed by arbitrator Carroll Daugherty in a 1964 arbitration case decision.

The case established a classic test composed of seven questions, all of which require a “yes” answer to assure that the employer had “just or proper cause” to impose disciplinary action or discharge.

  • The employee should be forewarned of the consequences of conduct.
  • The employer should establish and communicate reasonable work rules.
  • The employer’s investigation should ascertain that the employee is guilty as charged.
  • The employer’s investigation should be thorough, fair and impartial.
  • The employer’s evidence should be substantial.
  • The employer’s practices should be imposed in a non-discriminatory manner.
  • The employer’s punishment should fit the crime.

Proper documentation of employee disciplinary actions is extremely important, regardless of whether the disciplinary action results from a violation of a major work rule or policy or from incidents that the employer perceives as less serious. Employers who do not document disciplinary actions will have a much harder time defending disciplinary terminations if legally challenged.

In summary, to assure sound disciplinary processes, employers should:

  • Establish work rules that are fair, clear and consistently applied.
  • Clearly communicate the work rules to all employees.
  • Provide for a thorough investigation procedure.
  • Offer a counseling procedure to let employees know what is expected of them.
  • Use progressive discipline for less serious infractions.
  • Establish review procedures to determine “just cause” for disciplinary action.
  • Make appeals procedure available for any disciplinary action.

Robert F. Wayland is a retired employee and labor relations director and management professor. Email him at RFWayland@SBCGlobal.net.



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