978-1305576209 Chapter 12 Solution Manual

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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

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

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.