THE PITFALLS OF DISCIPLINE By Mike Bolasina

Pitfalls of Discipline PITFALL NO. 1 Not knowing the terms of your CBAs, civil service commission rules, and personnel policies governing: Investigations Discipline Grievances

Pitfalls of Discipline Pitfalls associated with not knowing: Missing critical deadlines Wrongly considering timed out disciplinary action Skipping mandatory steps and processes Make it required reading for all director and manager level employees

Pitfalls of Discipline PITFALL NO. 2 Choosing the wrong investigator Inside or outside? Police experience vs. HR experience? Availability now to start and complete investigation? Trained and experienced vs. incompetent?

Pitfalls of Discipline Pitfalls associated with bad investigator choices: Investigator (and investigation) discredited as Biased Incompetent and incomplete Delayed and untimely Reversal of disciplinary action Lawsuits for harassment/retaliation

Pitfalls of Discipline PITFALL NO. 3 Missteps with Weingarten Being a Weingarten “meanie” Restricting union representation to accused employee only Kneecapping union representative at investigative interview

Pitfalls of Discipline Pitfalls associated with Weingarten violations PERC ULP complaints Note-PERC is composed of Weingarten “weenies” Reversal of disciplinary action Distraction from employee misconduct at grievance hearing Strained relationship with unions

Pitfalls of Discipline PITFALL NO. 4 Missteps with Loudermill Treating it as an investigative interview Making it about you rather than the employee Preventing union reps from attending/speaking Making up mind before Loudermill Skipping Loudermill on mistaken belief it is not required Adding violations for the first time at the Loudermill stage

Pitfalls of Discipline Pitfalls associated with Loudermill violations Lawsuits for 14th amendment violations Distraction from employee misconduct at grievance hearing Ignorance regarding employee’s and union’s positions at time of grievance hearing

Pitfalls of Discipline PITFALL NO. 5 Making disciplinary decisions in a vacuum Not using available resources to inform yourself about the strengths and weaknesses of a decision Not reviewing the investigation and discipline files Deferring to the recommendations of investigators or department directors Not consulting with HR and legal

Pitfalls of Discipline Pitfalls associated with deferential decision-making Reversal of discipline as overly harsh Disclosure of weaknesses is delayed until the arbitration hearing Weak or ineffective arbitration testimony

Pitfalls of Discipline PITFALL NO. 6 Not paying sufficient attention to comparators Not considering, before imposing discipline, other employees who have (or have not) been disciplined for similar violations Not articulating why this employee deserves harsher discipline than potential comparators

Pitfalls of Discipline Pitfalls associated with neglect of comparator data Reversal of discipline as too harsh Discrimination and retaliation lawsuits

Pitfalls of Discipline PITFALL NO. 7 Agreeing to (or not striking) pro-union arbitrators Whether discipline is affirmed or reversed often depends on the arbitrator and his/her background, experience, biases, and leanings Do not agree to arbitrators without researching who is a good or bad arbitrator to hear the grievance

Pitfalls of Discipline Pitfalls associates with Mr. or Ms. Wrong as arbitrator Reversal of discipline The expense and humiliation associated with losing

Pitfalls of Discipline PITFALL NO. 8 Not pursuing settlement on weak or risky matters

Pitfalls of Discipline Pitfalls associated with taking weak or risky cases to arbitration or trial Undue stress and anxiety to parties and witnesses Back pay awards and other damages Attorney’s fees

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