Chapter 1 DefVsDisc2016

CHAPTER 1

JUST CAUSE

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.

We begin where Just Cause first appears in our Collective Bargaining Agreement:

“ARTICLE 16 DISCIPLINE PROCEDURE

Section 1. Principles

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.”

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The EL-921

The above quoted 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 what just cause is. That definition is found in the EL-921 Handbook, Supervisor's Guide to Handling Grievances, under Article 19 of the Collective Bargaining Agreement:

The Principles of Just Cause

The main purpose of any disciplinary action is to correct undesirable behavior on the part of an employee. All disciplinary actions must be for just cause and, in the majority of cases, the action taken should be progressive and corrective in nature. As stated earlier in this guide, it is typically the Postal Service’s burden to prove that all disciplinary actions are issued for just cause. The definition of just cause varies from case to case, but arbitrators frequently divide the question of just cause into six sub-questions and often apply the following criteria to determine whether the action was for just cause. These criteria are the basic considerations that the supervisor uses before initiating disciplinary action. Discipline should not be issued if “No” is the answer to any of the questions.

The following is the list of six sub-questions:

1. 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?
   
   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.)
   
   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.


2. Is the rule a reasonable rule?
   
   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.


3. Is the rule consistently and equitably enforced? 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.
   
   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.


4. Was a thorough investigation completed?
   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.
   
   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.


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? The following is an example of what arbitrators may consider an inequitable discipline: If an installation consistently issues seven-day suspensions for a particu- lar offense, it would be extremely difficult to justify why an employee with a similar record was issued a thirty-day suspension for the same offense under like circum- stances. There is no precise definition of what establishes a good, fair, or bad record. Reasonable judgment must be used. An employee’s record of previous offenses may not be used to establish guilt in a case you presently have under considera- tion, but it may be used to determine the appropriate disciplinary penalty.


6. 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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The Daugherty ‘Tests’ of Just Cause The definition of Just Cause stated in the EL-921 is based upon the benchmark definition developed and first stated by Arbitrator Carroll R. Daugherty in the Grief Brothers Coop- erage Corp. decision in 1964 and in a later decision, Enterprise Wire Company (1966). In Enterprise Arbitrator Daugherty stated: “Few if any union-management agreements contain a definition of "just cause." Nevertheless, over the years the opinions of arbitrators in innumerable disci- pline cases have developed a sort of "common law" definition thereof. This def- inition consists of a set of guidelines or criteria that are to be applied to the facts of any one case, and said criteria are set forth below in the form of ques- tions. A no answer to any one or more of the following questions normally signifies that just and proper cause did not exist. In other words, such no means that the employer's disciplinary decision contained one or more elements of arbitrary, capricious, unreasonable, or discriminatory action to such an extent that said decision constituted an abuse of managerial discretion warranting the arbitra- tor to substitute his judgment for that of the employer. The Questions 1. Did the company give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee's conduct? Note 1: Said forewarning or foreknowledge may properly have been given orally by management or in writing through the medium of typed or printed sheets or books of shop rules and of penalties for violation thereof. Note 2: There must have been actual oral or written communication of the rules and penalties to the employee. Note 3: A finding of lack of such communication does not in all cases require a no answer to question 1. This is because certain offenses such as insubordination, coming to work intoxicated, drinking intoxicating beverages on the job, or theft of the property of the company or of fel- low employees are so serious that any employee in the industrial society may properly be expected to know already that such conduct is offensive and heavily punishable. Note 4: Absent any contractual prohibition or restriction, the company has the right unilaterally to promulgate reasonable rules and give rea- sonable orders; and same need not have been negotiated with the un- ion. ____________________________________________________________________ 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 14 2. Was the company's rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company's business and (b) the performance that the company might properly expect of the em- ployee? Note: If an employee believes that said rule or order is unreasonable, he must nevertheless obey same (in which case he may file a grievance thereover), unless he sincerely feels that to obey the rule or order would seriously and immediately jeopardize his personal safety and/or integri- ty. Given a firm finding to the latter effect, the employee may properly be said to have had justification for his disobedience. 3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? Note 1: This is the employee's "day in court" principle. An employee has the right to know with reasonable precision the offense with which he is being charged and to defend his behavior. Note 2: The company's investigation must normally be made before its disciplinary decision is made. If the company fails to do so, its failure may not normally be excused on the ground that the employee will get his day in court through the grievance procedure after the exaction of discipline. By that time, there has usually been too much hardening of positions. In a very real sense, the company is obligated to conduct itself like a trial court. Note 3: There may, of course, be circumstances under which manage- ment must react immediately to the employee's behavior. In such cases, the normally proper action is to suspend the employee pending investi- gation, with the understanding that (a) the final disciplinary decision will 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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