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CHAPTER 12
Employee Discipline
Outline
I. The Changing Significance of Industrial Discipline
a. Historical overview of employer disciplinary policies
i. Unrestricted discretion
ii. Employment-at-will doctrine
iii. Scientific Management
iv. The Wagner Act (administered by the NLRB)
v. Arbitrators have three broad powers on discipline
vi. Interrelated purposes to improve efficiency
vii. Correction
viii. Discharge
b. Employment-at-Will Doctrine and Wrongful Discharge Consideration for Nonunion
Employees
i. Public policy exceptions to the employment-at-will doctrine (Exhibit 12.1)
ii. Wrongfully discharged employee
iii. Implied contract exception
iv. Covenant-of-good-faith
v. Fair dealing exception
vi. Wrongful discharge from employment act
c. Present-Day Significance of Employee Discipline
i. Subsequent Discipline
ii. Subsequent performance
iii. Enhanced union reputation
II. Elements of the Just Cause Principle in Employee Discipline
a. Discipline for Just Cause and Discipline’s Legitimate Purpose
i. Just cause
ii. Carroll Daugherty seven tests
iii. Elements of Discipline (Exhibit 12.2)
iv. Components in defining just cause
v. Table of Penalties (Exhibit 12.3)
b. Degree of Proof in Disciplinary Cases: Nature of the Evidence and Witness Credibility
i. Preponderance of
ii. Clear and convincing evidence
iii. Beyond a reasonable doubt
iv. E-mail, social media, and Internet
v. Dennis O’Conner v. Magno Ortega
vi. Witness credibility
c. Effect of Work Rules on Discipline
i. Management generally has the right to unilaterally establish and administer work
rules
ii. Work rules must be clear, reasonable, written, communicated, consistently
applied, and state consequences of employee violation
iii. Price list
iv. Penalties (Exhibit 12.3)
d. Progressive Discipline
i. Focus on correction
ii. Oral warning
iii. Written warning
iv. Suspension
e. Last Chance Agreements
i. Settles a grievance over employee’s termination and gives an employee a final
chance to retain job on strict conditions (Exhibit 12.4)
ii. Burden of proving just cause not required
f. Disciplinary Penalty and Mitigating Circumstances
i. Examples of employee misconduct (Labor Relations in Action page 621)
ii. Factors in mitigating circumstances
iii. Due process
iv. Enforcement of the remedy
v. Possible Collision between Discharge Decisions and Public Policy
g. Due Process
i. Procedural aspects
ii. Written notice
iii. Insubordination
iv. Double jeopardy
v. Record-keeping
vi. Due process irregularities
h. Due Process and the Weingarten Decision
i. Impact of government on labor-management relations (Chapter 1, Exhibit 1.2)
ii. Application of Weingarten Rights (Exhibit 12.5)
i. Union’s Communication with Members on Weingarten Rights
i. Weingarten card (Exhibit 12.6)
ii. Teamsters Weingarten Act Awareness Quiz (Exhibit 12.7)
iii. Evolving NLRB policy on Weingarten rights (Exhibit 12.8)
iv. Nonunion employee issues
Discussion Questions
1. Why is discipline the most significant issue for union and management? Describe how this
significance has shifted over time.
Until the early 1900s, management had little incentive in devising and monitoring
disciplinary policies. The favored alternative was to discharge the employee and find a
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
more dramatic example of this concern than saving an employee's job from the "arbitrary
and capricious" actions of management. The reinstatement of the discharged employee will
probably also make first-line supervisory officials "gun shy" in subsequently disciplining
other employees.
2. One union newspaper indicated how it saved an employee’s job. The employee was in the
mechanic’s classification and was discharged for refusing to comply with management’s
sudden, unilateral rule that mechanics must perform janitorial duties. Given this sketchy
situation, discuss the many possible reasons for the disciplinary action, indicating why the
arbitrator might not have been convinced that management’s discipline was for a legitimate
purpose. (You are free to make and state assumptions in your answer.)
Possible reasons include:
• company didn't inform employee of consequences of refusal to work
3. Explain in some detail the difficulties management would have in administering the
following work rule in accordance with the disciplinary principles established in the chapter:
"Any employee reporting to work under the influence of alcohol will be subject to
discharge."
"Under the influence of alcohol" is very unclear, as some employees are more affected by
4. Indicate the comparative advantages and disadvantages of a table of penalties (see Exhibit
12.3 on page 611) in the labor agreement versus a one-sentence contractual provision
indicating "management has the right to discipline or discharge an employee for cause."
The checklist clearly spells out for employees the work rules and consequences for violating
the work rules. It represents a consistent, progressive approach to discipline which, if
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
Referring to Exhibit 12.4, management should discharge the employee for this fourth
offense; yet, the arbitrator would probably reduce the discharge penalty on the assumption
that the employee demonstrated he could learn from discipline. If management does not
discharge the employee, then it invalidates its price list. Therefore, this provision is
inflexible and seldom makes accommodations for important mitigating circumstances.
5. Although not subject to judicial scrutiny, evidence in an arbitration hearing still has its
complexities. Discuss related considerations that could be involved in an arbitration hearing
involving an employee who was discharged for smoking marijuana on the job.
Some of the complexities include:
• How was the evidence obtained (search and seizure, undercover agents, etc.)?
6. Assume you are in charge of establishing a training program for supervisors in administering
discipline. Based on the supervisor's potential role in the disciplinary process, formulate and
discuss three major principles you would stress in this session.
Principles could include:
• the importance of the supervisor in the discipline process—a supervisor can either
prevent or provoke disciplinary problems; also, the supervisor assumes a significant
Exploring the Web
1. Supervisor Checklist for Employee Discipline
2. Progressive Discipline
3. Wrongful Discharge, Employer Exposure, and Types of Damages
4. Due Process Protocol
5. Just Cause and Due Process
Students should use an internet search engine (e.g., Google) to locate the relevant web pages for
Suggested Readings and Term Paper Topics
1. You want to reduce employee theft in your organization. What steps can you take to do
this without either (a) violating the law or (b) incurring the wrath of your labor union?
Possible references:
Challenger, J.A. (2002). Establishing rules for the new workplace. USA Today, 131, 2690, 30-34.
Jacoby, S. M. (2004). Employing bureaucracy : Managers, unions, and the transformation of work in the
2. What are the differences between the "progressive" and "slide-rule" approaches to
discipline? What impact (if any) do these different practices make upon arbitrators
who must hear discipline-related grievances?
Possible references:
Bishop, G. (1999). Discipline and safety. Occupational Health & Safety, 68, (5), 16-18.
Eden, G. (1992). Progressive Discipline: An Oxymoron? Relations Industrielles, 47, (3), 511528.
3. What are the differences between the "progressive" and the "positive" approaches to
discipline? Which do you recommend? Why?
Possible references:
Challenger, J.A. (2002). Establishing rules for the new workplace. USA Today, 131, 2690, 30-34.
Humphreys, R. W., Zeller, F. A., and Etherton, S. S. (1989). Positive discipline from the worker's
4. Should managers have the authority to discipline employees for their off-duty conduct?
Why or why not?
Possible references:
Bergsman, S. (March, 1991). Employee conduct outside the workplace. HR Magazine, 36, 62-64.
Mantel, D. (1999). Off-duty doesn't mean off the hook. RN, 62, (10), 71-74.
5. What factors determine whether discipline will be effective?
Possible references:
Simmons, C. (1999). In search of a better way: The discipline to create change. Chartered Accountants
Journal of New Zealand, 78, (11), 65.
Cole, N. (1997). Effects of training in procedural justice on perceptions of disciplinary fairness by
6. What should the law be with regard to whistleblowing activity? Under what conditions
(if any) should employers be allowed to discipline whistleblowers? How can employer,
employee, and public interests be balanced?
Possible references:
Barnett, T., Cochran, D. S., & Taylor, G. S. (1993). The internal disclosure policies of private sector
7. In 2000, the National Labor Relations Board expanded the rights of workers to be
accompanied by a fellow employee to any disciplinary meeting. What are the
implications of this expansion of so-called "Weingarten rights" for the non-union
workplace? For managers?
Possible references:
Jenero, K. A. (2000). Labor and employee relations: Weingarten revisited: nonunion workers also have
right to presence of coworker during investigatory interviews. Employee Relations Law Journal, 26, (3),
129- 142.
8. To what extent is "employment-at-will" an issue in discipline cases in nonunion
companies? To what extent is it an issue in unionized companies? Based on your
research, what advice do you have for managers? What advice do you have for
lawmakers (i.e., to what extent should employment-at-will be relevant for employee
discipline)?
Possible references:
(May, 1990). Avoiding the Wrongful-Termination Pitfall. Cornell Hotel and Restaurant Administration
Quarterly, 31, (1), 118- 124.
Bishop, G. M. (May, 1999). Discipline and safety. Occupational Health & Safety, 68, (5), 16-20.
9. You want to reduce substance abuse in your organization. What steps can be taken
without either (a) violating the law or (b) incurring the wrath of your labor union?
Possible references:
Bencivenga, D. (Jan., 1999). Dealing with dark side. HR Magazine, 44, (1), 50-54.
Bennett, J. B., & Lehman, W. E. (Sept., 1999). Employee exposure to coworker substance use and negative
10. Some managers retaliate against those who file complaints. Is this a common problem?
What should unions or upper-level managers do to deal with this problem?
Possible references:
------ (Jan/Feb 2004), Professor Awarded Damages in Retaliation Case, Academe, 90, 1, 12.
Fiesta, J. (Dec., 1999). File a complaint, face retaliation? Nursing Management, 30, (12), 12-14.
11. What is the relationship between grievance filing and other types of "employee
withdrawal" behaviors, such as absenteeism, tardiness, and sabotage?
Possible references:
Arthur, J. B., & Jelf, G. (1999). The effects of gainsharing on grievance rates and absenteeism over time;
Journal of Labor Research, 20, (1), 133-146.
Withdrawal? Human Relations, 41, (7), 517-532.
12. What are the evidence requirements managers must present in disciplinary grievance
hearings?
Possible references:
Huss M. (September 9, 2003). Legal Q & A: Statutory grievance procedures. Personnel Today, 13.
Karim, A. R. (1993). Arbitrator considerations in modifying discharge decisions in the public sector.
