Chapter 12
Management would generally prefer that an arbitrator rely on a "preponderance of evidence" instead of "beyond a reasonable doubt" since it is frequently difficult for management to meet this more stringent standard for evidence of employee misconduct.
true
One of the three levels of proof an arbitrator uses to find that discipline was for "just cause," is to find clear and convincing evidence that a disciplinary offense was committed.
true
The most often used level of proof by arbitrators is preponderance of evidence, wherein testimony and evidence must be adequate to overcome opposing presumptions and evidence.
true
The passage of the Wagner Act of 1935 and the creation of the NLRB provided the first legal means for holding employers accountable for at least some of their disciplinary decisions and actions.
true
Which of the following statements about the managerial implications of discipline is false? (A) Arbitrators have the power to overturn a manager's disciplinary action, including reinstating a discharged employee with full back pay. (B) First-line supervisors are the level of management most intimately and frequently involved in disciplinary issues. (C) The manager's authority can be compromised when one of their discharge decisions is overturned and the affected employee returns to the workplace. (D) The majority of reinstated employees perform in a below-average manner after returning to the workplace following reinstatement. (E) A disciplinary action carries the most significance for the employer.
A disciplinary action carries the most significance for the employer.
Suspensions: (A) Typically average three months in length according to one study. (B) Must always be given before discharge. (C) Are less serious than "oral warnings" because they do not become a permanent part of the employee's work record. (D) Are disciplinary lay-offs without pay. (E) Typically is the step after discharge.
Are disciplinary lay-offs without pay.
The concept that an employer may dismiss employees at will, for no cause, and even for cause morally wrong, without being guilty of legal wrong is called: (A) Wrongful discharge. (B) Disciplinary action. (C) Indefinite suspension. (D) Immediate action. (E) Employment-at-will doctrine.
Employment-at-will doctrine.
A disadvantage of the "price list" contractual provision pertaining to discipline is that: (A) It aims to impose consistent discipline. (B) Its inflexible nature makes it difficult to consider the unique circumstances of each disciplinary case. (C) The employee is clearly informed of the specific rules and consequences of violations. (D) The standardized penalties suggest consistent disciplinary action is implemented. (E) If agreed to by the union, it assumes more legitimacy than a unilateral work rule posted by management.
Its inflexible nature makes it difficult to consider the unique circumstances of each disciplinary case.
Which of the following is NOT true about work rules? (A) Management has an absolute obligation to inform the union of new work rules before they can be administered in the workplace. (B) Management's disciplinary decisions are more likely to be supported by an arbitrator when there are established work rules relating to the disciplinary offense. (C) Work rules must be clear and conclusive, indicating what is expected. (D) Management must inform employees of the rules and the consequences of their violation. (E) Management must administer
Management has an absolute obligation to inform the union of new work rules before they can be administered in the workplace.
A "reasonable" rule: (A) Must be jointly established by management and the union. (B) Relates to the orderly, efficient, and safe operation of the employer's business. (C) Must apply to all employees and operations at a particular organization equally. (D) Can be unrelated to the necessities of business operations. (E) Is not outweighed by the employee's personal rights on and off the job.
Relates to the orderly, efficient, and safe operation of the employer's business.
Even though all of the following rationale may be legitimate from a managerial perspective, arbitrators consider which one of the following to be the only legitimate/ necessary purpose of employee discipline? (A) To maintain respect for the supervisor's authority. (B) To promote efficient production. (C) To correct and improve the employee's behavior. (D) To set an example of appropriate behavior to other employees. (E) To transmit the rules of the organization to other employees.
To correct and improve the employee's behavior.
The burden of proof for disciplinary action rests with management in: (A) Some disciplinary cases. (B) None of disciplinary cases. (C) Most disciplinary cases. (D) Half of disciplinary cases. (E) All disciplinary cases.
all disciplinary cases
I t is not possible to introduce some level of restriction on supervisors to protect employee rights without adversely affecting supervisors' belief in the effectiveness of the disciplinary system.
false
One advantage of the "price list" is that it takes a statute of limitations on prior disciplinary offenses into account.
false
The National Unfair Dismissal Statute would provide protection against unfair dismissal to those nonunionized employees who have worked for an employer (15 or more employees) for a period of at least two years.
false
The interim measure decided by the union and employer when an employee is threatened with a termination which gives the employee a chance to improve his or her performance or conduct in order to keep his or her job is called a: (A) Disciplinary penalty. (B) Last chance agreement. (C) Second chance agreement. (D) Mitigating circumstance. (E) Price list penalty.
last chance agreement
Discipline cases where arbitrators focus on whether the substance of the message violates an employer policy or infringes on some legitimate employer interest involves: (A) Sit down strikes. (B) Secret meetings. (C) Social media. (D) Informational handouts. (E) Soapbox speeches.
social media
Evidence indicates that a majority of discharged employees who are reinstated by an arbitrator perform their work in a below-average capacity following reinstatement.
true
Which of the following offenses results in a discharge on the first offense? (A) Unauthorized absence. (B) Sleeping on duty. (C) Gambling during working hours. (D) Working while intoxicated. (E) Failure to observe safety rules.
unauthorized absence
Arbitrators give the most consideration to the employee's: (A) Work record. (B) Age. (C) Arrest record. (D) Religious affiliation. (E) Gender.
work record
Which of the following is correct about employees who are union stewards? (A) Arbitrators might uphold more lenient penalties for them as opposed to other employees for identical participation in a wildcat strike. (B) Arbitrators give them more leeway than they would other employees for arguments/ remarks made to management in a grievance meeting. (C) Arbitrators consider them no differently than any other employee. (D) They cannot be discharged by management because of legal protection under the National Labor Relations Act. (E) Union stewards actually have less responsibility when it comes to disciplinary matters.
Arbitrators give them more leeway than they would other employees for arguments/ remarks made to management in a grievance meeting.
Employee discipline is a topic only relevant in unionized firms since non-unionized employees aren't afforded any protections against wrongful disciplinary actions.
false
The definition of just cause is well defined in nearly all collective bargaining agreements and may be decided by representatives of the union and management.
false
The presence of "mitigating circumstances" usually makes it more likely that the disciplinary actions of management will be upheld, particularly in discharge decisions.
false
Under due process element of double jeopardy, the employer cannot first suspend an employee indefinitely and then subsequently discharge the employee.
false
Under the Weingarten decision, union representation cannot be given to an employee until the employer has concluded its investigation and notified the employee of discharge, and the employee has elected to fight the decision.
false
The type of behavior, a form of insubordination, which occurs when an employee directs profanity, epithets, or verbal abuse toward a supervisor is called (A) Aggression (B) Alcohol-related misconduct. (C) Fighting on the job. (D) Abusive behavior. (E) Subordination.
Abusive behavior
The exception to the employment-at-will doctrine which occurs when an employer and employee form an implied contract, even though there is no express, written instrument regarding the employment relationship is called the: (A) Public policy exception (B) Covenant-of-good faith and fair dealing exception (C) Implied contract exception (D) Job security exception (E) Discharge exception.
Implied contract exception
Which of the following statements is NOT true about the evolution of employee discipline? (A) It wasn't until the 1970s that employers could be held legally accountable for their disciplinary actions. (B) In the 18th and 19th centuries, employers exercised unrestricted discretion in directing the workforce. (C) Frederick W. Taylor was among the first management thinkers to advocate a disciplinary approach that focuses on correction rather than discharge. (D) At one time, an employee could be disciplined by having his tongue burned or being whipped in public for speaking to management in an insolent or rude manner. (E) The Wagner Act of 1935 helped shape management's disciplinary policies.
It wasn't until the 1970s that employers could be held legally accountable for their disciplinary actions.
A grievant receiving notice that another similar incident of misconduct will be "subject to dismissal": (A) Will not be able to have his/her discharge reviewed by an arbitrator since advance notice was given. (B) Must be discharged if he/she repeats that incident. (C) Can be discharged for a different, minor offense since the grievant was put on general notice. (D) May be discharged if he/she repeats that incident, based on a consideration of the specific circumstances surrounding the infraction. (E) Will have to join the union.
May be discharged if he/she repeats that incident, based on a consideration of the specific circumstances surrounding the infraction.
The level of proof which arbitrators use wherein testimony and evidence must be adequate to overcome opposing presumptions and evidence is called: (A) Clear and convincing evidence. (B) Preponderance of evidence. (C) Beyond a reasonable doubt evidence. (D) Misuse of Internet evidence. (E) Incommunicative evidence.
Preponderance of evidence.
Which of the following is NOT characteristic of progressive discipline? (A) Progressive discipline does not allow employees an opportunity to correct their behavior. (B) The focus of progressive discipline is on correction. (C) Progressive discipline impresses on the employee the seriousness of repeated offenses. (D) Provides employee opportunities to correct his or her behavior. (E) Provides an oral warning, or reprimand to an employee.
Progressive discipline does not allow employees an opportunity to correct their behavior.
Which of the following would NOT lead an arbitrator to consider reducing management's assigned penalty? (A) The circumstances of the case were so unusual that it is very unlikely to happen again. (B) Management contributed to the disciplinary problem and must assume part of the responsibility. (C) The employee was experiencing marital problems and it is likely that once the personal problem is resolved, the infraction will not occur again. (D) The employee's behavior is related to fulfilling his or her duties as a union officer. (E) The employee misconduct involves an illegal act.
The employee misconduct involves an illegal act.
Which of the following is NOT an example where an arbitrator might reverse or modify an employer's disciplinary action because of a violation of the "just cause standard"? (A) The employer fails to conduct a full and fair investigation of the employee's alleged misconduct. (B) The employer's rules were not clearly communicated to the employee, and the employee did not fully understand what was expected. (C) There are mitigating circumstances, such as the employee's long and distinguished service. (D) The employer acts in a consistent and even-handed manner by dispensing a disciplinary penalty that is identical to those used with other employees in similar circumstances. (E) There is improper administration of the employer's rules and requirements.
The employer acts in a consistent and even-handed manner by dispensing a disciplinary penalty that is identical to those used with other employees in similar circumstances.
Which of the following is NOT one of the broad powers exercised by arbitrators in discipline cases? (A) The power to establish reasonable standards for proof and evidence. (B) The power to determine what constitutes "just cause" for discipline. (C) The power to determine if employers have violated federal law and dispatch remedies against the employer. (D) The power to review when warranted, a disciplinary penalty that has been imposed by management. (E) To modify or eliminate the penalty imposed by management when warranted.
The power to determine if employers have violated federal law and dispatch remedies against the employer.
Rules prohibiting "horseplay" or "gambling" are usually: (A) Vaguer than management intended, even though it seems clear what is meant by these terms. (B) Regarded by most arbitrators as trivial concerns. (C) Almost always regarded by arbitrators as being clear and to the point and therefore subject to little interpretation. (D) Always upheld by arbitrators when discipline occurs for their infraction. (E) Treated the same no matter the degree of seriousness.
Vaguer than management intended, even though it seems clear what is meant by these terms.
Evidence obtained through "search and seizure" techniques (e.g., looking inside the employee's locker) without the employee's knowledge: (A) Will be automatically prohibited by the arbitrator. (B) Will usually be permitted as long as company representatives did not forcibly break into the employee's private property. (C) Will subject the management representative to criminal prosecution according to a recent Supreme Court decision. (D) Will not be considered by the arbitrator if the employee did not know about the search. (E) Will always be considered by the arbitrator regardless of how it was obtained.
Will usually be permitted as long as company representatives did not forcibly break into the employee's private property.
Arbitrators often reduce suspensions given to employees, even if other employees have received similar suspensions under identical circumstances
false
The Supreme Court has stated that union representation in discipline cases is only necessary after the company has made its disciplinary decision.
false
Under the implied contract exception to the employment-at-will doctrine, an employee is wrongfully discharged if and when the discharge is inconsistent with an explicit, well-established public policy of the state.
false
Under the public policy exception to the employment-at-will doctrine, an employer and employee form an implied contract, even if a written contract does not exist.
false
When the company decides that discharge is the appropriate disciplinary action, the affected employee is issued a last chance agreement that informs them that they are being discharged.
false
A manager terminates an employee because of a personal grudge against the employee. This discharge could be contested in at least 20 states under the covenant-of-good faith and fair dealing exception to the employment-at-will doctrine.
true
Arbitrators regard discharge as a last resort to be used only when all other corrective attempts have failed and the employee totally lacks usefulness to the firm.
true
Arbitrators regard the term "subject to dismissal" as implying that management can implement disciplinary penalties other than discharge, such as written warnings or suspensions.
true
Employee discipline represents both organizational conditions, which can lead employees to form a disciplined, self-regulated group, and organizational conditions, where managerial actions are taken against an employee who has violated organizational rules.
true
Employers overestimate the potential costs of a wrongful discharge suit and incur indirect costs, such as not terminating employees who perform poorly, costly hiring and decision-making processes, or use severance payments to deter wrongful termination claims.
true
In discipline and discharge cases, management's burden of proof to establish that the employee committed an infraction of a company's rule is an overriding consideration.
true
In most states, an employer cannot legally discharge an employee if the discharge is inconsistent with an explicit, well- established public policy of the state.
true
The legislation which helped shape management's disciplinary policies and created the National Labor Relations Board (NLRB) for enforcement purposes was the: (A) Unfair Discrimination Act. (B) Steelworkers' Trilogy. (C) Weingarten Decision. (D) Wagner Act. (E) Unfair Discrimination Act.
weingarten decision
