The Disciplinary Interview

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The first thing that happens after the informal warning, if applicable, when the employee repeats the infraction is a meeting between the supervisor and the employee. These meetings occur with the formal oral warning and with each progressive step in the disciplinary process.
In each case, prepare for the meeting - investigate and gather facts – and schedule the meeting in an appropriate location (private, free from distractions).

With the opening of the meeting, state your case. Be specific regarding the infraction (date, time, location, circumstances if applicable). Identify what you have already done in the interest of resolving the problem. Indicate the seriousness of the infraction.

Then listen. Let the employee respond. Encourage him/her to fully explain the circumstances and/or reasons for the behavior. Ask any pertinent questions to help you understand the employee's action (or inaction).

Again, express the seriousness of the infraction and state your expectations for future behavior. Work with the employee to develop a performance improvement plan, as appropriate.

• Seek a commitment from the employee to change.
• Re-state the employee's commitment, or, re-state your expectations.
• Inform the employee of any appeals procedures.
• End the session on a positive note.
• Document your actions.

Let's talk a bit about supervisor demeanor and conduct during any disciplinary interview. Be careful not to prejudge; keep an open mind. Don't interrupt, don't raise your voice, don't argue, don't berate or belittle, don't threaten, don't bully, and don't lose your temper. Be alert to your body language, especially facial expressions, eye movement, and gestures; avoid anything that could be construed as intimidating (Examples: pounding fist on desk; "glaring," etc.). Throughout, focus on the behavior, not the person.

Edwards (2005) provides additional tips regarding the interview on page 174 in your text.

Common Errors

Two of the more common errors in the corrective action and disciplinary processes are not being clear about violations and providing improper or no documentation:

Let's look at a couple of examples of documentation.

• Wrong: "Employee Smith was verbally warned about improper behavior on this date."
• Better: "Employee Smith was verbally warned about his inability to meet deadlines on date".
• Wrong: "Employee Smith is repetitively tardy."
• Better: "Employee Smith has been late to work by more than 30 minutes on three occasions within the past month. On date, Smith was 35 minutes late; on date, 45 minutes late, and on date, 45 minutes late."

Document dates, times, and places that the offense (and repeated infractions) occurred and the sequence of corrective and disciplinary actions.

Other Legal Considerations in the Administration of Discipline

"Just Cause"

The concept of "just cause" is found in many labor agreements, typically within a context that says discipline can be administered only for "just cause." Since what constitutes just cause can be debated, the phrase can be a trouble spot. Seven tests for just cause help describe its basic element.

1. Notice. "Did the employer give to the employee forewarning or foreknowledge of the possible or probable consequences of the employee's disciplinary conduct?"
2. Reasonable rule or order. "Was the employer's rule or managerial order reasonably related to a) the orderly, efficient, and 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. Fair investigation. "Was the employer's investigation conducted fairly and objectively?"
5. Proof. "At the investigation, was there substantial evidence or proof that the employee was guilty as charged?"
6. Equal treatment. "Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?"
7. Penalty. "Was the degree of discipline administered 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?"

Weingarten Rights

In the NLRB v. J . Weingarten decision, the Supreme Court determined that an employee covered under a collective bargaining agreement has the right to have a union representative present during any interview or meeting which the employee reasonably believes may result in disciplinary action (Cue Union, 2000). If the employee requests a representative before the meeting time and date, be sure to include the representative in the scheduling process. If the employee requests a union representative be present and the meeting is in progress, terminate the meeting at that juncture and reschedule.

The union steward can:

• "serve as a witness to the actual content of the investigation;
• object to intimidating tactics or confusing questions;
• help an employee avoid making 'fatal admissions;'
• advise an employee, when appropriate, against denying everything, and thereby giving the appearance of guilt or dishonesty;
• counsel an employee against losing her/his temper; and
• discourage an employee from informing on others" (Cue Union, 2000).

Weingarten rights only apply in investigatory interviews. Investigatory interviews are those during which management questions an employee to obtain information about his/her conduct and the employee has a reasonable belief that discipline (or other negative consequences) may result. Weingarten rights do not apply to meetings at which the supervisor only informs the employee of a disciplinary decision or during which the supervisor discusses department business other than the employee's conduct. However, if the supervisor asks other questions regarding the employee's conduct during the meeting, it may well become investigatory (Cue Union, 2000).

The Loudermill Decision

Another example of a landmark case involving appeal process rights is Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct 1487, 84 L.Ed. 2nd 494 (1985). In this case, the Supreme Court ruled that when a hearing is conducted after termination, the employer must afford the terminated employee all hearing rights, including the opportunity to refute the charges (Korom, 1998). The case (actually two cases--a security guard and a bus mechanic) went to the U.S. Supreme Court following a Civil Service Commission appeal.

Appeal Process

Any significant disciplinary action that involves the reduction of an employee's "property interest" (significant amounts of compensation, usually over five to ten days of pay) in continuation of his/her employment, demotion, or termination requires an appeal process. Most municipalities have appeal rights clearly defined in a personnel resolution adopted by the city council or into the labor agreement (employee contract) or incorporated into the labor agreement.

The State of California Supreme Court defined a permanent employee's (not probationary) right to appeal in the 1975 landmark case Skelly v. State Personnel Board. The provisions of the Skelly case are relevant to today's disciplinary process in California (and are duplicated in many other states). The case held that a permanent civil service employee held a "property interest" in his/her job that is protected by state and federal constitutional due process provisions. The court's findings are summarized as follows:

"Due process does not require the state to provide a permanent Civil Service employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action, but does require, as a minimum personnel safeguard, a notice of proposed action, the reason thereof, a copy of the charges and materials on which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline."

The procedure by which a permanent employee may be dismissed or otherwise disciplined starts by the appointing power or its authorized representative taking punitive action against an employee by simply notifying him/her of the action taken. No particular form of notice is required. However, within 15 days after the effective date of the action, the appointing power must serve upon the employee and file with the Board a written notice specifying (1) the nature of the punishment, (2) its effective date, (3) the cause thereof, (4) the employee's acts or omission upon which the charges are based, and (5) the employee's right to appeal.

Except in cases involving minor disciplinary matters (suspension without pay for 10 days or less), the employee has a right to an evidentiary hearing to challenge the action taken against him. To obtain such a hearing, the employee must file with the Board a written answer to the notice of punitive action within twenty days after service thereof. The answer is deemed to constitute a denial of all allegations contained in the notice which are not expressly admitted as well as a request for a hearing or investigation. Failure to file an answer within the specified time period results in a punitive action becoming final.

In cases where the affected employee files an answer within the prescribed period, the Board, or its authorized representatives, must hold a hearing within a reasonable time. As a general rule, the case is referred to the Board's hearing officer who conducts a hearing and prepares a proposed decision that may be adopted, modified or rejected by the Board. The Board must render its decision within a reasonable time after the hearing. If the Board determines that the cause or causes for which the employee was disciplined were insufficient or not sustained by the employee's acts or omissions, or that the employee was justified in engaging in the conduct which formed the basis of the charges against him/her, it may modify or revoke the punitive action and order the employee reinstated to his position as of the effective date of the action or some later specified date.

In the case of an adverse decision by the Board, the employee may petition that body for a rehearing. As an alternative or in addition to the rehearing procedure, the employee may seek review of the Board's action by means of a petition for writ of administrative mandamus filed in the superior court (California Reporter, n.d.).

The Skelly decision was a precedent-setting case by which all governmental agencies must abide. Probationary, reserve, and volunteer personnel are not subject to the Skelly decision requirements.

If a labor agreement is in place, the appeal process usually is spelled out, assuming it is an issue covered by the local contract. If a member feels aggrieved over an issue that is protected by federal or state laws, then appeal could be made to an agency or court at the appropriate level.

Constructive Discipline

Some organizations use an alternative approach. The concept of constructive discipline, also referred to as discipline without punishment, was developed for employees who fail to recognize their weaknesses or failings, even with the initiation of progressive discipline. The process requires the employee to think through the sequence of events that led to his/her need to change.

One program of constructive discipline that has had excellent results is used in Long Beach, California (Siegle, 1990). The steps of the process begin once the oral and written reprimands have been used:

• The employee receives a notice of intent to take adverse action (suspension).

• The employee meets with the supervisor to discuss the problem. The employee accepts the option of acknowledging poor performance or unacceptable behavior and agrees to propose a solution.
• The employee submits to the supervisor a plan to correct the problem.

• If the plan is accepted, the proposed suspension is deferred.
• If there are no further violations of rules for the ensuing six months, the matter is considered resolved and a letter to that effect is placed in the employee's file.
• This process can be repeated once. If, after a second trial period, the employee's poor performance or behavior persists, the supervisor can recommend suspension or termination.

The crucial difference in this alternative approach to discipline is that the employee formally accepts responsibility for his/her actions and contracts to make changes. The choice is the employee's. Employees who feel the stated charges are incorrect or the proposed discipline is inappropriate may choose not to participate in the constructive discipline process. These individuals will receive a traditional hearing and if the charges against them are sustained they can be suspended or dismissed.

The constructive discipline procedure can be used for many performance and behavior problems, but any organization should reserve the option of suspending or dismissing employees who commit "intolerable acts."

Discipline and Volunteers

You will notice that throughout much of this module the term "volunteer" has appeared in parentheses. The majority of concepts associated with discipline and disciplinary action can apply to volunteer personnel vs firefighters, as well as to career members. The "due process" and "property interests" appeal rights usually are not legally mandatory for volunteers. When supervisors of volunteers hesitate to apply disciplinary steps to volunteers, they simply encourage inappropriate and nonproductive behavior.

There are two significant differences between volunteer and career personnel relative to discipline. The first is that volunteers typically are disciplined for serious infractions by being placed on "inactive" status for a stipulated time period. This is different from placing a career person on suspension without pay, and typically is viewed by volunteers as a deterrent. The second difference is that volunteer officers or supervisors often are subject to the political pressures of their designated post. However, allowing infractions to occur without taking appropriate disciplinary action usually will cost more votes from task-oriented members and will potentially have impact on group performance.

Reading Assignment: Read the following article reprinted with permission of Fire Engineering and Richard Marinucci: Marinucci, R.A. "The Art of Discipline." Fire Engineering, 143, Sept. 1990, pp 8 10-11. The Art of Discipline.pdf

References

California Reporter 14, 539, P.2D 774.

Coalition of Union Employees. Weingarten Rights - the right to union representation http://www.cueunion.org/general_info/weingarten.php, 2000.

Edwards, S. Fire Service Personnel Management. 2nd ed. Upper Saddle River, N.J: Pearson Education, 2005.

Korom, J.R., "Labor-Management Relations." In Managing Fire Services, R.J. Coleman and J.A. Granito, eds., Washington, DC: International City Management Association, 1988.

Marinucci, R., The Art of Discipline. In Fire Engineering. Sept 1990.

Siegle, E., Disciplining Difficult Employees—Progressive Approaches. 1990 MIS Report, Vol. 227, No. 1, Washington, DC: International City Management Association.

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