writing the notice of intent employee relations forum, may 9, 2013
TRANSCRIPT
The Task…
To write a factual, logical, and effective notice of proposed disciplinary action that will be easily understood by a third party neutral.
Your Audience
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• The Arbitrator
• The Employee
• The Employee Representative
Organization of the Document
Introduction
• Purpose of Notice (proposed disciplinary action)
• Charges or basis for proposed disciplinary action
Organization of the Document(Continued)
Facts
• Employee history (classification and tenure) (Optional) Brief description of employee
duties
• Detailed description of factual basis for each charge Where appropriate, a statement that a
violation of a particular charge would in itself support imposition of the proposed discipline
Organization of the Document(Continued)
Closing
• Closing argument, i.e., Statement of how proposed discipline was determined Previous related discipline Impacts on department or work unit
(if appropriate) Why this discipline is necessary
Organization of the Document(Continued)
Closing –Standard Language
• Right to appeal
• Right to representation
• Date and location of Skelly hearing
• Person to contact
• Ability to respond in writing
• Statement of appeal right if proposed discipline becomes final
• Warning against retaliation or intimidation
Content Considerations• Description of event
must be factual, not opinion Description should
be comprehensive to support proposed disciplinary action
Based on the events or circumstances rather than the process
Content Considerations (Continued)
• Include everything the proposed action is based on (Omissions can’t be used later)
Content Considerations(Continued)
• The body of the letter should refer to the attachments Attachments -
summarized not regurgitated
Witness statements – summarized not paraphrased
Detailed charts & graphs - attachments
Content Considerations(Continued)
• Do not use acronyms that the arbitrator is not familiar with
• Stick to the point Keep document as clear and concise
as possible Do not include gratuitous information
Writing Tips
• Must be a document that conveys to a neutral third party that proposed disciplinary action is warranted. Both facts and
writing style are critical
• Be as concise as possible, don’t write a book
Writing Tips(Continued)
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• Don’t waste words describing a process
• Stick to what the employee did to incur the charges, and why the misconduct and/or violation of the rules, regulations, etc. is significant
Writing Tips (Continued)
• Paragraphs intended to support an action or concept should begin with a topic sentence and end with a conclusion
• The document should flow. Use transitional words or phrases such as: In addition Another Finally For instance, etc.
Writing Tips (Continued)
Arbitrators read hundreds of Skelly notices each year. If a document is difficult to follow, it results in the following reactions:• Upsets arbitrator which may cause him to
disregard your arguments• Makes the arbitrator think you don’t have
sufficient grounds for discipline• Makes the arbitrator wonder if you are
qualified to effectively impose discipline• Makes it easier for an arbitrator to justify “a
split baby” decision
The Arbitrator’s Perspective
Develop a sound understanding of your case
• Burden of proof on the Employer
• Conduct a good and thorough investigation
• Understand the issues involved with the proposed disciplinary action from both sides
The Arbitrator’s Perspective (Continued)
Creating the document• Tell a compelling story• Look at the case from the arbitrator’s
perspective• Define acronyms the first time they are
presented in the document• Don’t assume the arbitrator will read the
attachments• Off duty conduct – define the nexus to
the job
The Arbitrator’s Perspective (Continued)
Why settle?• Sometimes it just makes sense
• Sometimes you can avoid going to arbitration at all, if you are willing to compromise
The Arbitrator’s Perspective (Continued)
Why employers lose• Control of
witnesses• Gray areas –
room for interpretation
• Poor investigations
• Arbitrators sometimes make bad decisions