Editing Chapter 1 DefVsDisc2016

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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
17
The Joint Contract Interpretation Manual (JCIM)
In addition, the Parties have incorporated the EL-921s TESTS into the JCIM in Article
16:
Is There a Rule?
If so, was the employee aware of the rule? Was the employee forewarned of the disci-
plinary consequences for failure to follow the rule? It is not enough to say, “Well, eve-
rybody knows that rule,” or, “The rule was posted ten years ago.” Management may
have to prove that the employee should have known of the rule.
Certain standards of conduct are normally expected in the industrial environment 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, pilfer-
age, sabotage, insubordination, etc., would generally be assumed to have understood
that these offenses are neither condoned nor acceptable, even though management
may not have issued specific regulations to that effect.
Is the Rule a Reasonable Rule?
Work rules should be reasonable, based on the overall objective of safe and efficient
work performance. Management’s rules should be reasonably related to business effi-
ciency, safe operation of our business, and the performance expected of the employ-
ee.
Is the Rule Consistently and Equitably Enforced?
A rule must be applied fairly and without discrimination. Consistent and equitable en-
forcement is a critical factor, and claiming failure in this regard is one of the union’s
most successful defenses.
The Postal Service has been overturned or reversed in some cases because of not con-
sistently and equitably enforcing the rules.
Consistently overlooking employee infractions and then disciplining without warning
is one issue. For example, if employees are consistently allowed to smoke in areas des-
ignated as No Smoking areas, it is not appropriate suddenly to start disciplining them
for this violation.
____________________________________________________________________
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
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.
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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?
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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
employee's past record?
 Others have not received so severe discipline have they?
 Isn't the grievant's record very similar to others under your supervision?
 Doesn't employee Doe have more absences than the grievant and yet no disci-
pline?
 Other employees were all issued letters of warning for this particular infraction, and
the grievant was suspended?
 Doesn't the grievant's past record reflect no discipline?
 Did you check that past record?
 No employee has ever been fired for taking a break outside the building?
 The grievant is the first to be fired for that conduct?
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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
22
6. Was the disciplinary action taken in a timely manner?
 The last absence you cited in the removal was May 5, 1997?
 You issued the removal on July 15?
 What new information came into your possession between May 5 and July 15?
 When did you make the decision to remove the grievant?
 When did your investigation begin? End?
 When did you initiate the removal?
 How is a delay of 71 days timely?
The above illustrations are not intended to be complete lists of every question a
steward should ask. Each case will differ and will require development of strategically differ-
ent questions. In any event, no disciplinary grievance must ever be processed without a de-
tailed interview of the managers issuing discipline.
When the steward composes the interview questions and compiles them in writing,
prior to the interview, with adequate space for responses and extemporaneously asked ques-
tions, the interview questionnaire should be developed using the format discussed above.
Questions for each test should be placed under the test on the form. This will better enable
the steward to keep track of the context--and under what just cause test--each question is
asked.
In our grievances, it is important that we structure our contentions so they address
each "test" or element of Just Cause. Listing the individual tests from the EL-921 and JCIM
and how each test has been violated through due process will focus our arguments and cre-
ate a further due process breach for management should management fail to address each
"test" argument in its Step 2 grievance decision. We will argue that management is prevented
from raising refutations at arbitration to our "test" arguments since they failed in their obli-
gation to raise those refutations as per Article 15, Section 2, Steps 2d and f, at Step 2 of the
Grievance/Arbitration procedure. Those provisions are as follows:
“ARTICLE 15 - GRIEVANCE-ARBITRATION PROCEDURE
Section 2 Grievance Procedure Steps
Step 2(d) At the meeting the Union representative shall make a full and de-
tailed statement of facts relied upon, contractual provisions involved, and rem-
edy sought. The Union representative may also furnish written statements from
witnesses or other individuals. The Employer representative shall also make a
____________________________________________________________________
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
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
IN OUR COLLECTIVE BARGAINING AGREEMENT
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
Revised August 2015
24
“The issue in this case is whether management was proper in the manner under
which EL-401 (Supervisor's Guide to Scheduling and Premium Pay) was issued.
In final resolution of this grievance we agreed on the following clarification of
the purpose and intent of EL-401.
The EL-401 has no authority as a handbook or manual and should never be cit-
ed or referred to in any manner to support management's position with regard
to scheduling and premium pay for bargaining unit employees.”
In a National level arbitration case, H8C-NA-C 61 dated December 27, 1982, Arbi-
trator Gamser determined that the EL-501, "Supervisor's Guide to Attendance Im-
provement", was not an official Article 19 Handbook or Manual:
“This case was brought on for arbitration by the APWU, in a grievance subject
to disposition at the National Level challenging the force and effect which the
Postal Service allegedly bestowed upon EL-501, a publication entitled SUPERVI-
SOR'S GUIDE TO ATTENDANCE IMPROVEMENT which was published in No-
vember of 1980.
1. The Employer shall promulgate an official document in which it clarifies the
status of EL-501, making it clear that it is not to be regarded by management,
the Unions, or employee covered by the National Agreement as a handbook
having the force and effect of such a document issued pursuant to Article 19.
Copies of such promulgation shall be furnished to the Unions concerned.”
The parties, through a Step 4 resolution and a National level arbitration decision have
determined that both the EL-401 and EL-501 are not Handbooks or Manuals under Article 19.
There is no such Step 4 decision or National Arbitration decision excluding the EL-921 from
Article 19. Absent such authority and determination for the EL-921, and recognizing the EL-
921's inclusion in the Directives and Forms Catalogue, the Union position is that the EL-921 is
a binding Article 19 Handbook. When the USPS argues against the EL-921, we must put forth
the Catalogue, the Step 4, the National Award, and Regional arbitral authority in support of
the EL-921 as a binding Handbook under Article 19 of the Collective Bargaining Agreement.