Progressive Discipline

1. Progressive Discipline William J. Wood Employee Relations Administrator/ Chief negotiator

2. JUST CAUSE: The Seven Steps Arbitrator Carroll R. Daugherty has reduced the basic elements of just cause to seven steps. These tests represent a specifically articulated analysis of the just cause standard. They are meant to be a guideline to supervisors when disciplinary action is to be considered.A “no” answer to one or more of the questions means that just cause was not satisfied or at least may have been seriously weakened. It also means that some arbitrary, capricious, or discriminatory elements may be present.

3. JUST CAUSE: The Seven Steps 1. Notice: “Did the Employer give to the employee forewarning or foreknowledge of the possible or probable consequence of the employee’s disciplinary conduct?” 2. Reasonable Rule or Order: “Was the Employer’s rules or managerial order reasonably related to (a) the orderly, efficient, or safe operation of the Employer’s business, and (b) the performance that the Employer might properly expect of the employee?” 3. Investigation: “Did the Employer, before administering the discipline, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?”

4. JUST CAUSE: The Seven Steps 4. Fair Investigation: “Was the Employer’s investigation conducted fairly and objectively?” 5. Proof: “At the investigation, did the ‘judge’ obtain substantial evidence or proof that the employee was guilty as charged?” 6. Equal Treatment: “Has the Employer applied its rules, orders and penalties even-handedly and without discrimination to all employees?”

5. JUST CAUSE: The Seven Steps 7. Penalty: “Was the degree of discipline administered by the Employer in a particular case reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his service with the Employer?”* * Koven, Adolph M. and Susan L. Smith “Just Cause: The Seven Tests”. Pg. 10, Coloracre Publication Inc., San Francisco, CA 1985

6. ADDITIONAL JUST CAUSE CONSIDERATIONS • Timely Employer Action. If the employer waits a period of time to investigate or charge the employee it may interfere with the employee’s ability to find witnesses or evidence. It may also make it impossible for the agency to pinpoint exactly when the action occurred, making it difficult for the employee to refute the charge. In some cases the delay may be justified such as cases where lengthy investigations were necessary or in cases where management did not have knowledge of the violation when it occurred. 

7. ADDITIONAL JUST CAUSE CONSIDERATIONS • Double Jeopardy. While double jeopardy is a criminal law theory there is developing arbitration case law in this area which indicates that an employee cannot be subject to discipline and then subsequently be disciplined more harshly for the same offense, unless additional facts are uncovered later. Similarly, if an employee is investigated and told that no action will be taken, or is counseled, which is not a disciplinary action, arbitrators have stated that it is not fair to subsequently try to send the employee through the disciplinary process for the same offense. 

8. PROCEDURES FOR IMPOSING DISCIPLINE Written notice of allegations/charges. Mitigation/pre-disciplinary meeting. Written notice of discipline

9. TYPES OF DISCIPLINARY ACTION Written warning. Disciplinary probation. Suspension. Demotion. Termination/dismissal.

10. PROGRESSIVE DISCIPLINE CONSIDERATIONS The nature and severity of the offense. Prior disciplinary history. Performance history. Length of service. Impact of actions on Employer. Amount of discipline necessary to prevent repetition of offense.

11. Employee Relations WILLIAM J. WOOD, ADMINISTRATOR/CHIEF NEGOTIATOR (402) 471-4106 WILLIAM.WOOD@NEBRASKA.GOV JEANNIE O’MEARA, EMPLOYEE RELATIONS REPRESENTATIVE (402) 471-8292 JEANNIE.OMEARA@NEBRASKA.GOV GAIL BROLLIAR, ADMINISTRATIVE ASSISTANT (402) 471-4104 GAIL.BROLLIAR@NEBRASKA.GOV