Download discipline or not discipline

TO DISCIPLINE OR NOT TO DISCIPLINE: THAT IS THE QUESTION
IS IT SAFE TO WRITE IT DOWN?
by
SHARI DANIELS, MBA, SPHR, IPMA-CP
Introduction
The Collective Bargaining Agreement between the Agency and the Union has a
provision that allows employees to file an appeal of any “discipline” they receive. The
relevant provision defines discipline as follows: termination, demotion, suspension of 80
working hours or less, pay reduction equal to 80 hours or less, or a written reprimand.
Terminations, suspensions and pay reductions exceeding 80 working hours are handled
as major discipline, while suspensions and pay reductions of 80 hours or less and
written reprimands are handled as minor discipline.
Two Probation Corrections Officers received informal counseling memorandums.
One employee’s was titled “Directive Memorandum.” The other’s was titled “Corrective
Memorandum.” The employees’ union appealed the memorandums to arbitration
arguing that these memos should be considered Written Reprimands because they
were written corrective actions placed in personnel files and could negatively affect
future promotional opportunities.
This paper looks at informal written counseling memos and the arguments
surrounding an employer’s right to informally counsel public safety employees and the
employee’s argument that they should have the right to appeal informal counseling.
Both sides of this argument are presented along with an arbitrator’s view. Also
discussed are how the Peace Officer’s Bill of Rights is factored into these arguments,
how discipline is defined, what can be appealed, and what constitutes a personnel file.
Appealing discipline under the MOU
The Collective Bargaining Agreement (CBA) defines discipline as: termination,
demotion, suspension of 80 working hours or less, pay reduction equal to 80 hours or
less, or a written reprimand. Counseling memos are not addressed in the CBA.
Is Informal counseling considered discipline?
The Agency has a progressive discipline practice to deal with performance and/or
misconduct issues. The disciplinary steps progress from informal counseling/coaching
memos, to formal action beginning with a written reprimand and “progressively
increases” to suspension, reduction in pay, demotion and termination. The Agency’s
practice is that minor deficiencies may be corrected with informal communication such
as a verbal warning, Directive Memorandum, or Corrective Memorandum. The
following are typical steps:
1) Informal verbal warning about the deficiency and/or failure to meet standards.
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2) Informal written counseling memos (Directive or Corrective Memorandum)
communicating the deficiency and/or failure to meet standards.
3) Formal counseling meeting followed by a Corrective Counseling Confirmation
Memorandum.
4) Formal Written Reprimand.
5) Successive disciplinary actions (i.e., suspension, pay reduction, demotion, and
termination).
In order to address problems, supervisors are responsible for communicating work
rules and policies and calling immediate attention to infractions.
A Directive Memorandum tells the employee what rule or policy the employee is
expected to follow. It can be used to inform the entire group about a new policy or to
remind/reinforce compliance with existing policies. It typically includes the following
phrase: “Keep this memo (or policy) in a convenient place and use it as a reference as
you are expected to perform the task correctly in the future.”
The Corrective Memorandum tells an employee that he/she has already been
informed of the rule or policy. It informs the employee that he/she has violated a policy.
It also includes the following phrase: “Keep this memo/policy in a convenient place and
use it as a reference as you are expected to perform the task correctly in the future.”
A written reprimand is the first level of formal discipline. It informs the employee of
the problem, reason why the conduct is unacceptable, impact on the work/department,
and instructions that need to be followed. The written reprimand also advises the
employee that this document will be placed in his/her official personnel file, and outlines
the process for appeal.
Informal counseling memorandums are not considered formal discipline. The
agency considers these informal written memos typically used to put one or a group of
employees on notice about new/revised policies and procedures, or remind of
expectations to follow policy. The agency’s practice is that informal counseling
memorandums are not appealable. However, employees are permitted to submit a
rebuttal to be attached.
Just Cause Standard
The seven elements of just cause include the question of whether the employee
was given advance notice of possible or probable disciplinary consequences of his/her
conduct. An appropriate action for a first offense is typically minor and can include a
verbal and/or written warning. Informal communication (verbal and written) is a way of
ensuring this element is met to put the employee on notice.
What about the Peace Officers Procedural Bill of Rights (POBR)?
Probation Corrections Officers are subject to the protections under POBR which
provide basic rights and protections that must be afforded to all peace officers. Under
Government Code 3304(b)/3254(d), the appeal process is triggered by “punitive action.”
Government Code 3304(b) states: “No punitive action, nor denial of promotion on
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grounds other than merit shall be undertaken by a public agency against any public
safety officer who has successfully completed the required probationary period without
providing an opportunity for an administrative appeal.”
POBR defines punitive action as any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or transfer for purposes of
punishment. (Government Code 3303).
Is a written counseling memorandum a written reprimand?
difference?
What’s the
The contents of the document, not the title, determine whether it qualifies as a
written reprimand and thus constitutes “punitive action” under POBR. There is
substantial case law that determines that punitive action may exist when an action is
taken which may lead to the adverse consequences specified in Section 3303.
Does the Directive Memorandum and the Corrective Memorandum qualify as
“punitive action?”
The directive memo informed the grievant that she failed to communicate with
others and it constituted a violation of the department’s Security Policy. It concluded
with the statement: “Keep this document in a convenient place and refer to it whenever
you need to refresh your memory about the proper supervision of minors.”
The corrective memo stated: “Institutional Policy and Procedure states: “Each
staff is responsible for juvenile facility security and for the housing of minors in a safe
and secure environment. Therefore, effective immediately, you are directed to comply
with all policies and procedures of the department.”
A Directive Memorandum simply provides directions or puts employees on notice
regarding a new rule or policy and reminds them that they have been previously advised
about a current policy that needs to be followed. The Corrective Memorandum is also
used as a reminder that employees have been informed about an existing policy. In
both of these cases, they are usually accompanied by the relevant policy as an
additional reminder. There was nothing in either the Directive Memorandum or
Corrective Memorandum issued to these two employees that stated or implied that
these documents were disciplinary. Furthermore, the documents were placed in the
supervisor’s working file and not the employee’s official personnel file.
Neither of these memos made reference to the possibility of future discipline.
They simply reminded the employees of their expectations based on policies they
received and thus were made aware of.
An Arbitrator’s view
The union argued, based on the decision in Otto v. Los Angeles Unified School
District, that the Directive Memorandum and Corrective Memorandum should be
appealable because any written memorandum criticizing a public safety officer’s job
performance, and placed in the officer’s personnel file constitutes punitive action.
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The department argued, based on the Collective Bargaining Agreement, that the
Directive Memorandum and Corrective Memorandum were not written reprimands and
thus did not constitute punitive action. The department also argued that these memos
were informal counseling memos used to remind the employees of the department’s
policies and expectations. There was no mention of further disciplinary action and the
memos were not placed in the officers’ official personnel file but in the supervisor’s
working file.
The Arbitrator agreed with the union that the employees were entitled to a
hearing. This decision was based on the union’s contention that the employees were
subjected to punitive action because of the contents of the document. The arbitrator
also agreed with the department that the memos were not placed in the personnel files
(as was the case in Otto v. LAUSD) and found that supervisor’s working file was not a
file that could be viewed by someone with authority to view a personnel file.
Further, the arbitrator ruled that even if the Directive Memorandum and
Corrective Memorandum could be considered as some form of discipline, the level was
so minor that the memos did not violate the principle of just cause in terms of any type
of abuse of the department’s exercise of its discretion. The arbitrator also agreed that
the fact that the department considered these documents informal counseling, under the
terms of the Collective Bargaining Agreement, Directive Memorandums and Corrective
Memorandums are not disciplinary actions that can be considered in terms of their
imposition of progressive discipline.
Government Code 3305/3255 provides officers the right to review any adverse
comments before they are placed into the officer’s file. Therefore, a supervisor’s
working file is not completely private. However, the department met this standard
because informal counseling memos are reviewed and signed by employees before
going into the supervisor’s working file. Additionally, employees have a right to attach a
written rebuttal to informal counseling memos.
Under Government Code 3304(b)/3255(d), the appeal process is triggered by
“punitive action” which means any action that may lead to dismissal, demotion,
suspension, reassignment, reduction in salary, written reprimand, and transfer.
In closing, is it safe to write it down?
In short: absolutely. Counseling Memorandums are not generally considered
“punitive action.” There is no valid argument that they are written reprimands.
However, agencies should be careful in what and how they document informal written
counseling. In other words, if it looks like a reprimand it will most likely be treated as a
reprimand regardless of what it’s called. The controlling factor is the content of the
document, not its title.
Is it safe to write it down? Yes, it is. Management has an inherent right to
manage its employees. Management has a right to coach/counsel its employees in an
informal manner and to create written documentation of the coaching/counseling.
However, agencies need to be careful of what they say and how they say it or they will
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find themselves spending time and resources defending an informal counseling
memorandum that is seen as punitive action (i.e. written reprimand) and subject to an
appeal hearing.
Shari D. Daniels, MBA, SPHR, IPMA-CP
Human Resources Officer
County of San Bernardino
150 South Lena Road
San Bernardino, CA 92415-0515
(909) 388-0298
References:
California Public Employee Relations “Pocket Guide to the Public Safety Officers
Procedural Bill of Rights Act”, July 2009 (Revised Edition)
California Public Employee Relations “Pocket Guide to Due Process in Public
Employment”, November 2005
Otto v. Los Angeles Unified School Dist. (2001) 89 Cal. App. 4 th 985 [107 Cal.Rptr.2d
664]
Sacramento Police Officers Association v. Vengas, 2002 DJDAR 10108 (September 5,
2002)
Richard Kreisler and Scott Tiedmann, Liebert Cassidy Whitmore, “Reducing Your
Exposure To Police Officer Administrative Appeals” (December 10, 2001)
Laura Kalty, Liebert Cassidy Whitmore, “Principles for Public Safety Employment”
(Presentation on September 21, 2011)
Frank Elkouri and Edna Elkouri, “How Arbitration Works”, 4th Edition
S. Daniels – “Discipline or Not Discipline” (October 2011)
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