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Discipline and Workplace Rights*
(updated 11/13/09)

A vital part of having union representation is the protection against unfair discipline or firing and to preserve your workplace rights. When union workers are disciplined, management has the burden of proof. Workers should never have to prove that they didn’t do something – management has to prove that they did it. Union workers can fight any discipline that does not meet these standards. The information below, and the linked web pages, are intended to provide you – the Union member – information about how to protect your discipline and workplace rights. If you have any questions, be sure to contact your shop steward or other Union representative. (Also see the supplemental terms of use, below.)

Discipline and WorkPlace Rights

Weingarten Rights

Discipline and Appeals

What's a Skelly Hearing?

MOA Rights

City/State Laws/Policies


Lybarger Rights

Garrity Rights

Free Speech Rights

Grievance Process

Three basic elements of discipline are that is must be: 1) progressive, 2) corrective, and 3) for just cause:

Progressive: Discipline is supposed to get the worker’s attention so that behavior will improve. It gets more severe if the behavior does not change. The first time you do something, you may only get a warning, the next time a one day suspension, the next time a three day suspension, until you are fired for a repeated problem. Progressive discipline does not mean that a worker cannot be fired immediately for certain things that are serious and the worker knew (or should have known) were serious – such as fighting and stealing.

Corrective: The goal of the discipline should be to correct the worker’s behavior, rather than just to punish.

Just Cause: This means that management must have a reason (“cause”) for disciplining a worker and it has to be fair (“just”). Although the MEF MOA does not specifically provide for “just cause,” the San José Municipal Code §3.04.1370 does list the reasons a worker can be disciplined “for cause.” If the “just causes tests” are not met, there is generally the option to appeal to the San José Civil Service Commission. Usually, a seven rules, or tests, is used when deciding discipline cases. Under these rules, management has to follow ALL these rules for the discipline to be considered fair. If management fails to use any one of the tests, it may be used to help reduce the discipline.

The Seven Tests for Just Cause in Discipline

1. Did the worker know what would happen if he broke the rule? There has to be a warning, including saying what will happen if the rule is broken. It can be announced or in writing. Often, a boss puts up with something for a long time and then suddenly punishes someone for breaking the rule – that’s not usually considered reasonable. Some rules are so obvious that workers are expected to know that they will be in big trouble, even without a warning from the boss (such as drinking at work, stealing, or refusing direct orders).

2. Is the rule important to safe and efficient operations? The more important a rule is, the more reasonable it is to discipline a worker for breaking it.

3. Did management investigate before disciplining the worker? When management disciplines a worker and THEN investigates, it looks like they are looking for information to explain what they already did. Bosses are allowed to place workers on administrative leave in serious situations – but they should bring the worker back, with back pay, if the investigation shows that the worker is not guilty or there are other facts to consider.

4.Was management fair and objective when they investigated? If the boss only looks for information that will prove that a worker is guilty, it’s not a fair investigation. Examples include if they refuse to interview witnesses who will back up the worker’s story or only interview supervisors.

5. Did the investigation show substantial evidence or proof of guilt? Unlike criminal court, the boss doesn’t have to prove his case “beyond reasonable doubt.” But, bosses must have real evidence, not just guesses. The boss can’t say that the worker has to prove she is innocent – the boss has to show proof of her guilt.

6. Were rules and orders the same for everyone and the penalty for breaking rules the same? If workers were not treated the same, it is harder for a boss to defend disciplining a worker under a rule. This is one of the most common ways that bosses are unfair – that certain “picks” get treated better, not expected to meet the same production and not disciplined the same for breaking a rule. Bosses can announce that they have a new rule, or are starting to enforce an old rule so long as they hold everyone to the same rule.

7. Does the discipline consider how serious the situation is and the worker’s past record? A worker with a good work history, seniority, and no record of problems should get less discipline, even for the same offense. The kind of rule that was broken should be considered in the level of discipline. For example, a mistake that put other workers in danger is more serious than a paperwork mistake.


*Supplemental Terms of Use for Discipline Rights

These supplement terms of use are in addition to the general Municipal Employees’ Federation (MEF), AFSCME Local 101 website terms of use that can be found by clicking here. Information contained on this webpage is of a general nature and is subject to change; it is not meant to serve as legal advice in any particular situation. MEF does not guarantee the accuracy of the legal information in this site nor in any of the sites to which this site links. As laws are constantly changing, only an attorney can provide you with specific advice pertaining to your situation. It is recommended you consult a licensed lawyer who is knowledgeable about the area of law in question before you take action to address a legal matter.

By using this webpage,, and the pages linked to it, you are agreeing that under no circumstances will MEF be responsible for any information contained in, or omitted from, the webpage; and any person’s reliance on any such information, whether or not the information is correct, current or complete and the consequences of any action you or any other person takes or fails to take, whether or not based on information provided by or as a result of the use of this webpage.


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Created 13 November 2009 • Modified 23 April 2016