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____________________________________________________________________
== CHAPTER 1 ==
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
=== JUST CAUSE ===
IN OUR COLLECTIVE BARGAINING AGREEMENT
One of the most misunderstood concepts and requirements of our Collective Bargaining agreement is the Just Cause mandate under Article 16. Managers are often not held to proving they issued discipline for Just Cause. Arbitrators are often not held to issuing decisions which apply the standards of Just Cause. Grievances are often not investigated, processed, and presented in a method requiring management to meet the tests of Just Cause.
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
{{quote|text=<b>We begin</b> where Just Cause first appears in our Collective Bargaining Agreement:
Revised August 2015
:<b>“ARTICLE 16 DISCIPLINE PROCEDURE
17
:Section 1. Principles</b>
The Joint Contract Interpretation Manual (JCIM)
In the administration of this Article, a basic principle shall be that discipline should be corrective in nature, rather than punitive. No employee may be disciplined or discharged except for just cause such as, but not limited to, insubordination, pilferage, intoxication (drugs or alcohol), incompetence, failure to perform work as requested, violation of the terms of this Agreement, or failure to observe safety rules and regulations. Any such discipline or discharge shall be subject to the grievance-arbitration procedure provided for in this Agreement, which could result in reinstatement and restitution, including back pay.”
In addition, the Parties have incorporated the EL-921s TESTS into the JCIM in Article
----
16:
<b><u>The EL-921</u></br></br>
Is There a Rule?
The above quoted</b> provision explains that Management must have just cause to issue discipline, but the provision does not explain what just cause is. In Collective Bargaining Agreements throughout the United States, ours may be unique in that we have a clear definition of
If so, was the employee aware of the rule? Was the employee forewarned of the disci-
what just cause is. That definition is found in the <b>EL-921 Handbook, Supervisor's Guide to
plinary consequences for failure to follow the rule? It is not enough to say, “Well, eve-
Handling Grievances,</b> under Article 19 of the Collective Bargaining Agreement:
rybody knows that rule,” or, “The rule was posted ten years ago.” Management may
</br></br><b>The Principles of Just Cause</b></br></br>
have to prove that the employee should have known of the rule.
The main purpose of any disciplinary action is to correct undesirable behavior on the
Certain standards of conduct are normally expected in the industrial environment and
part of an employee. All disciplinary actions must be for just cause and, in the majority
it is assumed by arbitrators that employees should be aware of these standards.
of cases, the action taken should be progressive and corrective in nature.
For example, an employee charged with intoxication on duty, fighting on duty, pilfer-
As stated earlier in this guide, it is typically the Postal Service’s burden to prove that all
age, sabotage, insubordination, etc., would generally be assumed to have understood
disciplinary actions are issued for just cause.
that these offenses are neither condoned nor acceptable, even though management
The definition of just cause varies from case to case, but arbitrators frequently divide
may not have issued specific regulations to that effect.
the question of just cause into six sub-questions and often apply the following criteria
Is the Rule a Reasonable Rule?
to determine whether the action was for just cause.
Work rules should be reasonable, based on the overall objective of safe and efficient
These criteria are the basic considerations that the supervisor uses before initiating
work performance. Management’s rules should be reasonably related to business effi-
disciplinary action. Discipline should not be issued if “No” is the answer to any of the
ciency, safe operation of our business, and the performance expected of the employ-
questions.
ee.
</br></br>
Is the Rule Consistently and Equitably Enforced?
The following is the list of six sub-questions:
A rule must be applied fairly and without discrimination. Consistent and equitable en-
<ol style="list-style-type:decimal">
forcement is a critical factor, and claiming failure in this regard is one of the union’s
  </br><b><li>Is there a rule? If so, was the employee aware of the rule? Was the employee forewarned of the disciplinary consequences for failure to follow the rule?</b></br></br>
most successful defenses.
It is not enough to say, “Well, everybody knows that rule,” or, “We posted that rule ten years ago.” You should be prepared to present the document(s) that supports that the employee knew, or reasonably should have known, the rule (posting and location, previous discipline, relevant sections of handbooks, regulations, etc.)</br></br>
The Postal Service has been overturned or reversed in some cases because of not con-
Certain standards of conduct are normally expected in the work place, and it is assumed by arbitrators that employees should be aware of these standards. For example, an employee charged with intoxication on duty, fighting on duty, pilferage, sabotage, or insubordination, may generally be assumed to have understood that these offenses are neither condoned nor acceptable, regardless of whether management has issued specific regulations to that effect.</li>
sistently and equitably enforcing the rules.
  </br><b><li>Is the rule a reasonable rule?</b></br></br>
Consistently overlooking employee infractions and then disciplining without warning
Management must make sure rules are reasonable, based on the overall objective of safe and efficient work performance. Rules should be reasonably related to business efficiency, safe operation of our business, and the performance we might expect of the employee.</li>
is one issue. For example, if employees are consistently allowed to smoke in areas des-
  </br><b><li>Is the rule consistently and equitably enforced?</b>
ignated as No Smoking areas, it is not appropriate suddenly to start disciplining them
A rule must be applied fairly and without discrimination. Consistent and equitable enforcement is a critical factor. Consistently overlooking employee infractions and then disciplining without warning is improper. For example, if employees are consistently allowed to smoke in areas designated as No Smoking areas, it is not appropriate to suddenly start disciplining them for this violation. In such cases, management loses its right to discipline for that infraction, in effect, unless it first puts employees (and the unions, when appropriate) on notice of its intent to enforce that regulation.</br></br>
for this violation.
Singling out employees for discipline is another issue. If several similarly situated
____________________________________________________________________
employees commit an offense, it would not be equitable to discipline only one.</li>
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
  </br><b><li>Was a thorough investigation completed?</b></br>
IN OUR COLLECTIVE BARGAINING AGREEMENT
When considering disciplinary action, management must investigate to determine whether the employee committed the offense. Management must ensure that its investigation is thorough and objective. This includes the employee’s “day in court privilege.” Employees have the right to know with reasonable detail what the charges are and need to be given a reasonable opportunity to defend themselves before the discipline is initiated.</br></br>
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
The investigation should also include a review of the employees past record in order to determine what, if any, action is appropriate and/or warranted. When in doubt supervisors are encouraged to consult with their managers or with the District Labor Relations office.</li>
Revised August 2015
  </br><b><li>Was the severity of the discipline reasonably related to the infraction itself
18
In such a case, management may lose its right to discipline for that infraction, in effect,
unless it first puts employees (and the union) on notice of its intent to enforce that
regulation again. Singling out an employee for discipline is another issue. If several
similarly situated employees commit the same offense, it is not equitable to discipline
only one.
Was a Thorough Investigation Completed?
Before administering the discipline, management should conduct an investigation to
determine whether the employee committed the offense. The investigation should be
thorough and objective.
The investigation should include the employee’s “day in court privilege.” The employ-
ee should know with reasonable detail what the charges are and should be given a
reasonable opportunity to defend themselves before the discipline is initiated.
Was the Severity of the Discipline Reasonably Related to the Infraction Itself
and in Line with that Usually Administered, as Well as to the Seriousness of the
Employee’s Past Record?
The following is an example of what arbitrators may consider an inequitable discipline:
If an installation consistently issues seven calendar day suspensions for a particular of-
fense, it would be extremely difficult to justify why an employee with a past record
similar to that of other disciplined employees was issued a fourteen day suspension
for the same offense.
There is no precise definition of what establishes a good, fair, or bad record. Reasona-
ble judgment must be used. An employee’s record of previous offenses may never be
used to establish guilt in a case you presently have under consideration, but it may be
used to determine the appropriate disciplinary penalty.
Was the Disciplinary Action Taken in a Timely Manner?
Disciplinary actions should be taken as promptly as possible after the offense has been
committed.
____________________________________________________________________
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
IN OUR COLLECTIVE BARGAINING AGREEMENT
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
Revised August 2015
19
In conjunction with the tests of just cause, the EL-921 and the JCIM, the most im-
portant tool the Union has at its disposal--and one of the least utilized in developing
thorough, well-reasoned defenses vs. discipline--is our ability under Articles 17 and 31
of the Collective Bargaining Agreement to interview witnesses during the course of
grievance investigations.
The Collective Bargaining Agreement states:
“ARTICLE 17 - REPRESENTATION
Section 3. Rights of Stewards
The steward, chief steward or other Union representative properly certified in
accordance with Section 2 above may request and shall obtain access through
the appropriate supervisor to review the documents, files and other records
necessary for processing a grievance or determining if a grievance exists and
shall have the right to interview the aggrieved employee(s), supervisors and
witnesses during working hours. Such requests shall not be unreasonably
denied.” (Emphasis added)
“ARTICLE 31 - UNION-MANAGEMENT COOPERATION
Section 3. Information
The Employer will make available for inspection by the Union all relevant infor-
mation necessary for collective bargaining or the enforcement, administration
or interpretation of this Agreement, including information necessary to deter-
mine whether to file or to continue the processing of a grievance under this
Agreement. Upon the request of the Union, the Employer will furnish such in-
formation, provided, however, that the Employer may require the Union to re-
imburse the USPS for any costs reasonably incurred in obtaining the infor-
mation.”
Utilizing our right to interview, the questions the shop steward must ask of man-
agement are crucial if success is to be achieved through the grievance-arbitration pro-
cess. Too often, Union advocates are faced with presenting cases in Arbitration in
which the Union has not developed defenses addressing the tests of Just Cause. Too
often, Union advocates do not know prior to the hearing what management witnesses
and managers themselves will testify to at the hearing. Union interviews done at the
earliest steps--prior to Steps 1 or 2--will enable the Union to address Just Cause as a
structured requirement, not as a variable concept.
Once interviews are conducted, these become invaluable elements of evidence.
Moreover, the steward becomes a valuable witness for the Union and can, at an arbi-
____________________________________________________________________
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
IN OUR COLLECTIVE BARGAINING AGREEMENT
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
Revised August 2015
20
tration hearing, refute a manager’s changed story and seriously cripple a manager's
credibility.
The best way to develop solid defenses vs. disciplinary actions is to specifically uti-
lize the authority of Articles 17 and 31 for interviews in conjunction with the EL-921
and JCIM’s Just Cause definition. The following is illustrative of how that process may
proceed:
EL-921/JCIM JUST CAUSE INTERVIEW QUESTION ILLUSTRATIONS
1. Is there a rule?
 What is the rule?
 Is the rule posted in the Post Office?
 If yes, where is it posted?
 If yes, when was it posted?
 If yes, who posted it?
 If yes, were you present when it was posted?
 Was the rule related to the grievant by you?
 If yes, when?
 If yes, where?
 If yes, who else was present?
 Was the grievant informed of the rule when he/she was hired?
 If yes, were you present?
 If yes, who told you?
 How do you know if you weren't there and no one told you?
2. Is the rule a reasonable rule?
 Is this rule related to the job?
 Is that relationship stated within a regulation? Identify the regulation.
 Is this rule related to safe operations?
 Is that relationship stated within a regulation? Identify the regulation.
 What caused the creation of this rule?
 When was the last updating of this rule?
____________________________________________________________________
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
IN OUR COLLECTIVE BARGAINING AGREEMENT
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
Revised August 2015
21
 When did you inform the grievant of this update?
 Who informed the grievant of this update?
 You don't know whether the grievant was informed of any update?
3. Is the rule consistently and equitably enforced?
 How many people have violated the rule?
 How often is it violated?
 How many employees have you disciplined for violating the rule?
 When was the last violation of the rule of which you are aware?
 When did you last issue discipline for a violation of the rule?
 Have you done a comparison of other employees' records who violated the rule?
 Did you consider the grievant's violation in comparison to others?
 Why haven't other employees received the same degree of discipline for similar in-
fractions?
 Why haven't you issued discipline to others for similar infractions?
4. Was a thorough investigation completed?This question is covered in great detail in Chapters 2, 3 and 21.
5. Was the severity of the discipline reasonably related to the infraction itself
and in line with that usually administered, as well as to the seriousness of the
and in line with that usually administered, as well as to the seriousness of the
employee's past record?
employee’s past record?</b>
 Others have not received so severe discipline have they?
The following is an example of what arbitrators may consider an inequitable
 Isn't the grievant's record very similar to others under your supervision?
discipline: If an installation consistently issues seven-day suspensions for a particu-
 Doesn't employee Doe have more absences than the grievant and yet no disci-
lar offense, it would be extremely difficult to justify why an employee with a similar
pline?
record was issued a thirty-day suspension for the same offense under like circum-
 Other employees were all issued letters of warning for this particular infraction, and
stances.
the grievant was suspended?
There is no precise definition of what establishes a good, fair, or bad record.
 Doesn't the grievant's past record reflect no discipline?
Reasonable judgment must be used. An employee’s record of previous offenses
 Did you check that past record?
may not be used to establish guilt in a case you presently have under considera-
 No employee has ever been fired for taking a break outside the building?
tion, but it may be used to determine the appropriate disciplinary penalty.</li>
 The grievant is the first to be fired for that conduct?
  </br><b><li>Was the disciplinary action taken in a timely manner?</b>
____________________________________________________________________
Disciplinary actions should be taken as promptly as possible after the offense has
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
been committed.</li>
IN OUR COLLECTIVE BARGAINING AGREEMENT
</ol>
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
----
Revised August 2015
<b><u>The Daugherty ‘Tests’ of Just Cause</b></u>
22
The definition of Just Cause stated in the EL-921 is based upon the benchmark definition
6. Was the disciplinary action taken in a timely manner?
developed and first stated by Arbitrator Carroll R. Daugherty in the Grief Brothers Coop-
 The last absence you cited in the removal was May 5, 1997?
erage Corp. decision in 1964 and in a later decision, Enterprise Wire Company (1966). In
 You issued the removal on July 15?
Enterprise Arbitrator Daugherty stated:
 What new information came into your possession between May 5 and July 15?
“Few if any union-management agreements contain a definition of "just cause."
 When did you make the decision to remove the grievant?
Nevertheless, over the years the opinions of arbitrators in innumerable disci-
 When did your investigation begin? End?
pline cases have developed a sort of "common law" definition thereof. This def-
 When did you initiate the removal?
inition consists of a set of guidelines or criteria that are to be applied to the
 How is a delay of 71 days timely?
facts of any one case, and said criteria are set forth below in the form of ques-
The above illustrations are not intended to be complete lists of every question a
tions.
steward should ask. Each case will differ and will require development of strategically differ-
A no answer to any one or more of the following questions normally signifies
ent questions. In any event, no disciplinary grievance must ever be processed without a de-
that just and proper cause did not exist. In other words, such no means that the
tailed interview of the managers issuing discipline.
employer's disciplinary decision contained one or more elements of arbitrary,
When the steward composes the interview questions and compiles them in writing,
capricious, unreasonable, or discriminatory action to such an extent that said
prior to the interview, with adequate space for responses and extemporaneously asked ques-
decision constituted an abuse of managerial discretion warranting the arbitra-
tions, the interview questionnaire should be developed using the format discussed above.
tor to substitute his judgment for that of the employer.
Questions for each test should be placed under the test on the form. This will better enable
The Questions
the steward to keep track of the context--and under what just cause test--each question is
1. Did the company give to the employee forewarning or foreknowledge of
asked.
the possible or probable disciplinary consequences of the employee's
In our grievances, it is important that we structure our contentions so they address
conduct?
each "test" or element of Just Cause. Listing the individual tests from the EL-921 and JCIM
Note 1: Said forewarning or foreknowledge may properly have been
and how each test has been violated through due process will focus our arguments and cre-
given orally by management or in writing through the medium of typed
ate a further due process breach for management should management fail to address each
or printed sheets or books of shop rules and of penalties for violation
"test" argument in its Step 2 grievance decision. We will argue that management is prevented
thereof.
from raising refutations at arbitration to our "test" arguments since they failed in their obli-
Note 2: There must have been actual oral or written communication of
gation to raise those refutations as per Article 15, Section 2, Steps 2d and f, at Step 2 of the
the rules and penalties to the employee.
Grievance/Arbitration procedure. Those provisions are as follows:
Note 3: A finding of lack of such communication does not in all cases
“ARTICLE 15 - GRIEVANCE-ARBITRATION PROCEDURE
require a no answer to question 1. This is because certain offenses such
Section 2 Grievance Procedure Steps
as insubordination, coming to work intoxicated, drinking intoxicating
Step 2(d) At the meeting the Union representative shall make a full and de-
beverages on the job, or theft of the property of the company or of fel-
tailed statement of facts relied upon, contractual provisions involved, and rem-
low employees are so serious that any employee in the industrial society
edy sought. The Union representative may also furnish written statements from
may properly be expected to know already that such conduct is offensive
witnesses or other individuals. The Employer representative shall also make a
and heavily punishable.
____________________________________________________________________
Note 4: Absent any contractual prohibition or restriction, the company
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
has the right unilaterally to promulgate reasonable rules and give rea-
IN OUR COLLECTIVE BARGAINING AGREEMENT
sonable orders; and same need not have been negotiated with the un-
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
ion.
Revised August 2015
23
full and detailed statement of facts and contractual provisions relied upon. The
parties' representatives shall cooperate fully in the effort to develop all neces-
sary facts, including the exchange of copies of all relevant papers or documents
in accordance with Article 31. The parties' representatives may mutually agree
to jointly interview witnesses where desirable to assure full development of all
facts and contentions. In addition, in cases involving discharge either party shall
have the right to present no more than two witnesses. Such right shall not pre-
clude the parties from jointly agreeing to interview additional witnesses as pro-
vided above.
Step 2(f) Where agreement is not reached the Employer's decision shall be fur-
nished to the Union representative in writing, within ten (10) days after the Step
2 meeting unless the parties agree to extend the ten (10) day period. The deci-
sion shall include a full statement of the Employer's understanding of (1) all rel-
evant facts, (2) the contractual provisions involved, and (3) the detailed reasons
for denial of the grievance.”
Specific compartmentalization structuring of Just Cause tests, interview questions and
responses, and Union contentions/issues/arguments will move our disciplinary grievances
from broad, general defenses to sharp, concrete due process issues. (The compartmentaliza-
tion method is detailed within the Interviews as Evidence and Roadmap to Winning Strat-
egy Books.)
The next chapters in this Handbook address those specific due process issues.
The USPS often takes the position that the EL-921 is only a guide, not an official Article 19
Handbook. To refute such an argument, the Union relies upon the following:
1. Directives and Forms Catalogue Publication 223.
This USPS publication lists all the USPS Handbooks and Manuals, including the EL-
921. In addition, it includes two handbooks (the EL-401 and EL-501) which are not part
of Article 19’s Handbooks and Manuals.
In a binding Step 4 interpretive decision, H1C-NA-C 114, dated October 1, 1984, the
USPS and APWU agreed the EL-401, "Supervisor's Guide to Scheduling and Premium
Pay", was not an Article 19 Handbook or Manual:
MANAGEMENT ARGUMENT THAT THE EL-921
IS NOT AN OFFICIAL HANDBOOK UNDER ARTICLE 19
____________________________________________________________________
____________________________________________________________________
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
Line 258: Line 98:
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
Revised August 2015
Revised August 2015
24
14
“The issue in this case is whether management was proper in the manner under
2. Was the company's rule or managerial order reasonably related to (a)
which EL-401 (Supervisor's Guide to Scheduling and Premium Pay) was issued.
the orderly, efficient, and safe operation of the company's business and
In final resolution of this grievance we agreed on the following clarification of
(b) the performance that the company might properly expect of the em-
the purpose and intent of EL-401.
ployee?
The EL-401 has no authority as a handbook or manual and should never be cit-
Note: If an employee believes that said rule or order is unreasonable, he
ed or referred to in any manner to support management's position with regard
must nevertheless obey same (in which case he may file a grievance
to scheduling and premium pay for bargaining unit employees.”
thereover), unless he sincerely feels that to obey the rule or order would
In a National level arbitration case, H8C-NA-C 61 dated December 27, 1982, Arbi-
seriously and immediately jeopardize his personal safety and/or integri-
trator Gamser determined that the EL-501, "Supervisor's Guide to Attendance Im-
ty. Given a firm finding to the latter effect, the employee may properly
provement", was not an official Article 19 Handbook or Manual:
be said to have had justification for his disobedience.
“This case was brought on for arbitration by the APWU, in a grievance subject
3. Did the company, before administering discipline to an employee, make
to disposition at the National Level challenging the force and effect which the
an effort to discover whether the employee did in fact violate or disobey
Postal Service allegedly bestowed upon EL-501, a publication entitled SUPERVI-
a rule or order of management?
SOR'S GUIDE TO ATTENDANCE IMPROVEMENT which was published in No-
Note 1: This is the employee's "day in court" principle. An employee has
vember of 1980.
the right to know with reasonable precision the offense with which he is
1. The Employer shall promulgate an official document in which it clarifies the
being charged and to defend his behavior.
status of EL-501, making it clear that it is not to be regarded by management,
Note 2: The company's investigation must normally be made before its
the Unions, or employee covered by the National Agreement as a handbook
disciplinary decision is made. If the company fails to do so, its failure
having the force and effect of such a document issued pursuant to Article 19.
may not normally be excused on the ground that the employee will get
Copies of such promulgation shall be furnished to the Unions concerned.”
his day in court through the grievance procedure after the exaction of
The parties, through a Step 4 resolution and a National level arbitration decision have
discipline. By that time, there has usually been too much hardening of
determined that both the EL-401 and EL-501 are not Handbooks or Manuals under Article 19.
positions. In a very real sense, the company is obligated to conduct itself
There is no such Step 4 decision or National Arbitration decision excluding the EL-921 from
like a trial court.
Article 19. Absent such authority and determination for the EL-921, and recognizing the EL-
Note 3: There may, of course, be circumstances under which manage-
921's inclusion in the Directives and Forms Catalogue, the Union position is that the EL-921 is
ment must react immediately to the employee's behavior. In such cases,
a binding Article 19 Handbook. When the USPS argues against the EL-921, we must put forth
the normally proper action is to suspend the employee pending investi-
the Catalogue, the Step 4, the National Award, and Regional arbitral authority in support of
gation, with the understanding that (a) the final disciplinary decision will
the EL-921 as a binding Handbook under Article 19 of the Collective Bargaining Agreement.
be made after the investigation and (b), if the employee is found inno-
cent after the investigation, he will be restored to his job with full pay for
time lost.
Note 4: The company's investigation should include an inquiry into pos-
sible justification for the employee's alleged rule violation.
4. Was the company's investigation conducted fairly and objectively?
Note 1: At said investigation the management official may be both
"prosecutor" and "judge," but he may not also be a witness against the
employee.
 
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