Writing The Notice of Intent

Employee Relations Forum, May 9, 2013

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

Case Study Discussions

Thank you for attending today’s ER

Forum sessionMay 9, 2013