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== CHAPTER 1 ==
The Joint Contract Interpretation Manual (JCIM)
=== JUST CAUSE ===
In addition, the Parties have incorporated the EL-921s TESTS into the JCIM in Article 16:
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.
Is There a Rule?
{{cquote|quote <b>We begin</b> where Just Cause first appears in our Collective Bargaining Agreement:
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, “The rule was posted ten years ago.” Management may have to prove that the employee should have known of the rule.
:“ARTICLE 16 DISCIPLINE PROCEDURE
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.
:Section 1. Principles
For example, an employee charged with intoxication on duty, fighting on duty, pilfer-
In the administration of this Article, a basic principle shall be that discipline
age, sabotage, insubordination, etc., would generally be assumed to have understood
should be corrective in nature, rather than punitive. No employee may be disci-
that these offenses are neither condoned nor acceptable, even though management
plined or discharged except for just cause such as, but not limited to, insubor-
may not have issued specific regulations to that effect.
dination, pilferage, intoxication (drugs or alcohol), incompetence, failure to per-
Is the Rule a Reasonable Rule?
form work as requested, violation of the terms of this Agreement, or failure to
Work rules should be reasonable, based on the overall objective of safe and efficient
observe safety rules and regulations. Any such discipline or discharge shall be
work performance. Management’s rules should be reasonably related to business effi-
subject to the grievance-arbitration procedure provided for in this Agreement,
ciency, safe operation of our business, and the performance expected of the employ-
which could result in reinstatement and restitution, including back pay.”
ee.
----
Is the Rule Consistently and Equitably Enforced?
<b><u>The EL-921</u></br></br>
A rule must be applied fairly and without discrimination. Consistent and equitable en-
The above quoted</b> provision explains that Management must have just cause to issue disci-
forcement is a critical factor, and claiming failure in this regard is one of the union’s
pline, but the provision does not explain what just cause is. In Collective Bargaining Agree-
most successful defenses.
ments throughout the United States, ours may be unique in that we have a clear definition of
The Postal Service has been overturned or reversed in some cases because of not con-
what just cause is. That definition is found in the EL-921 Handbook, Supervisor's Guide to
sistently and equitably enforcing the rules.
Handling Grievances, under Article 19 of the Collective Bargaining Agreement:
Consistently overlooking employee infractions and then disciplining without warning
The Principles of Just Cause
is one issue. For example, if employees are consistently allowed to smoke in areas des-
The main purpose of any disciplinary action is to correct undesirable behavior on the
ignated as No Smoking areas, it is not appropriate suddenly to start disciplining them
part of an employee. All disciplinary actions must be for just cause and, in the majority
for this violation.
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
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
disciplinary actions are issued for just cause.
IN OUR COLLECTIVE BARGAINING AGREEMENT
The definition of just cause varies from case to case, but arbitrators frequently divide
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
the question of just cause into six sub-questions and often apply the following criteria
Revised August 2015
to determine whether the action was for just cause.
18
These criteria are the basic considerations that the supervisor uses before initiating
In such a case, management may lose its right to discipline for that infraction, in effect,
disciplinary action. Discipline should not be issued if “No” is the answer to any of the
unless it first puts employees (and the union) on notice of its intent to enforce that
questions.
regulation again. Singling out an employee for discipline is another issue. If several
The following is the list of six sub-questions:
similarly situated employees commit the same offense, it is not equitable to discipline
1. Is there a rule? If so, was the employee aware of the rule? Was the employee
only one.
forewarned of the disciplinary consequences for failure to follow the rule?
Was a Thorough Investigation Completed?
It is not enough to say, “Well, everybody knows that rule,” or, “We posted that rule
Before administering the discipline, management should conduct an investigation to
ten years ago.” You should be prepared to present the document(s) that supports
determine whether the employee committed the offense. The investigation should be
that the employee knew, or reasonably should have known, the rule (posting and
thorough and objective.
location, previous discipline, relevant sections of handbooks, regulations, etc.)
The investigation should include the employee’s “day in court privilege.” The employ-
Certain standards of conduct are normally expected in the work place, and it
ee should know with reasonable detail what the charges are and should be given a
is assumed by arbitrators that employees should be aware of these stand-
reasonable opportunity to defend themselves before the discipline is initiated.
ards. For example, an employee charged with intoxication on duty, fighting
Was the Severity of the Discipline Reasonably Related to the Infraction Itself
on duty, pilferage, sabotage, or insubordination, may generally be assumed
and in Line with that Usually Administered, as Well as to the Seriousness of the
to have understood that these offenses are neither condoned nor accepta-
Employee’s Past Record?
ble, regardless of whether management has issued specific regulations to
The following is an example of what arbitrators may consider an inequitable discipline:
that effect.
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?
2. Is the rule a reasonable rule?
 Is this rule related to the job?
Management must make sure rules are reasonable, based on the overall objective
 Is that relationship stated within a regulation? Identify the regulation.
of safe and efficient work performance. Rules should be reasonably related to
 Is this rule related to safe operations?
business efficiency, safe operation of our business, and the performance we might
 Is that relationship stated within a regulation? Identify the regulation.
expect of the employee.
 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?
3. Is the rule consistently and equitably enforced?
 How many people have violated the rule?
A rule must be applied fairly and without discrimination. Consistent and equitable
 How often is it violated?
enforcement is a critical factor. Consistently overlooking employee infractions and
 How many employees have you disciplined for violating the rule?
then disciplining without warning is improper. For example, if employees are con-
 When was the last violation of the rule of which you are aware?
sistently allowed to smoke in areas designated as No Smoking areas, it is not ap-
 When did you last issue discipline for a violation of the rule?
propriate to suddenly start disciplining them for this violation. In such cases, man-
 Have you done a comparison of other employees' records who violated the rule?
agement loses its right to discipline for that infraction, in effect, unless it first puts
 Did you consider the grievant's violation in comparison to others?
employees (and the unions, when appropriate) on notice of its intent to enforce
 Why haven't other employees received the same degree of discipline for similar in-
that regulation.
fractions?
Singling out employees for discipline is another issue. If several similarly situated
 Why haven't you issued discipline to others for similar infractions?
employees commit an offense, it would not be equitable to discipline only one.
4. Was a thorough investigation completed?This question is covered in great detail in Chapters 2, 3 and 21.
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 or-
der 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 Dis-
trict Labor Relations office.
5. Was the severity of the discipline reasonably related to the infraction itself
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?
 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.
 The grievant is the first to be fired for that conduct?
____________________________________________________________________
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?
6. Was the disciplinary action taken in a timely manner?
The last absence you cited in the removal was May 5, 1997?
Disciplinary actions should be taken as promptly as possible after the offense has
 You issued the removal on July 15?
been committed.
 What new information came into your possession between May 5 and July 15?
The Daugherty ‘Tests’ of Just Cause
 When did you make the decision to remove the grievant?
The definition of Just Cause stated in the EL-921 is based upon the benchmark definition
 When did your investigation begin? End?
developed and first stated by Arbitrator Carroll R. Daugherty in the Grief Brothers Coop-
 When did you initiate the removal?
erage Corp. decision in 1964 and in a later decision, Enterprise Wire Company (1966). In
 How is a delay of 71 days timely?
Enterprise Arbitrator Daugherty stated:
The above illustrations are not intended to be complete lists of every question a
“Few if any union-management agreements contain a definition of "just cause."
steward should ask. Each case will differ and will require development of strategically differ-
Nevertheless, over the years the opinions of arbitrators in innumerable disci-
ent questions. In any event, no disciplinary grievance must ever be processed without a de-
pline cases have developed a sort of "common law" definition thereof. This def-
tailed interview of the managers issuing discipline.
inition consists of a set of guidelines or criteria that are to be applied to the
When the steward composes the interview questions and compiles them in writing,
facts of any one case, and said criteria are set forth below in the form of ques-
prior to the interview, with adequate space for responses and extemporaneously asked ques-
tions.
tions, the interview questionnaire should be developed using the format discussed above.
A no answer to any one or more of the following questions normally signifies
Questions for each test should be placed under the test on the form. This will better enable
that just and proper cause did not exist. In other words, such no means that the
the steward to keep track of the context--and under what just cause test--each question is
employer's disciplinary decision contained one or more elements of arbitrary,
asked.
capricious, unreasonable, or discriminatory action to such an extent that said
In our grievances, it is important that we structure our contentions so they address
decision constituted an abuse of managerial discretion warranting the arbitra-
each "test" or element of Just Cause. Listing the individual tests from the EL-921 and JCIM
tor to substitute his judgment for that of the employer.
and how each test has been violated through due process will focus our arguments and cre-
The Questions
ate a further due process breach for management should management fail to address each
1. Did the company give to the employee forewarning or foreknowledge of
"test" argument in its Step 2 grievance decision. We will argue that management is prevented
the possible or probable disciplinary consequences of the employee's
from raising refutations at arbitration to our "test" arguments since they failed in their obli-
conduct?
gation to raise those refutations as per Article 15, Section 2, Steps 2d and f, at Step 2 of the
Note 1: Said forewarning or foreknowledge may properly have been
Grievance/Arbitration procedure. Those provisions are as follows:
given orally by management or in writing through the medium of typed
“ARTICLE 15 - GRIEVANCE-ARBITRATION PROCEDURE
or printed sheets or books of shop rules and of penalties for violation
Section 2 Grievance Procedure Steps
thereof.
Step 2(d) At the meeting the Union representative shall make a full and de-
Note 2: There must have been actual oral or written communication of
tailed statement of facts relied upon, contractual provisions involved, and rem-
the rules and penalties to the employee.
edy sought. The Union representative may also furnish written statements from
Note 3: A finding of lack of such communication does not in all cases
witnesses or other individuals. The Employer representative shall also make a
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
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
Line 210: Line 131:
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
23
14
full and detailed statement of facts and contractual provisions relied upon. The
2. Was the company's rule or managerial order reasonably related to (a)
parties' representatives shall cooperate fully in the effort to develop all neces-
the orderly, efficient, and safe operation of the company's business and
sary facts, including the exchange of copies of all relevant papers or documents
(b) the performance that the company might properly expect of the em-
in accordance with Article 31. The parties' representatives may mutually agree
ployee?
to jointly interview witnesses where desirable to assure full development of all
Note: If an employee believes that said rule or order is unreasonable, he
facts and contentions. In addition, in cases involving discharge either party shall
must nevertheless obey same (in which case he may file a grievance
have the right to present no more than two witnesses. Such right shall not pre-
thereover), unless he sincerely feels that to obey the rule or order would
clude the parties from jointly agreeing to interview additional witnesses as pro-
seriously and immediately jeopardize his personal safety and/or integri-
vided above.
ty. Given a firm finding to the latter effect, the employee may properly
Step 2(f) Where agreement is not reached the Employer's decision shall be fur-
be said to have had justification for his disobedience.
nished to the Union representative in writing, within ten (10) days after the Step
3. Did the company, before administering discipline to an employee, make
2 meeting unless the parties agree to extend the ten (10) day period. The deci-
an effort to discover whether the employee did in fact violate or disobey
sion shall include a full statement of the Employer's understanding of (1) all rel-
a rule or order of management?
evant facts, (2) the contractual provisions involved, and (3) the detailed reasons
Note 1: This is the employee's "day in court" principle. An employee has
for denial of the grievance.”
the right to know with reasonable precision the offense with which he is
Specific compartmentalization structuring of Just Cause tests, interview questions and
being charged and to defend his behavior.
responses, and Union contentions/issues/arguments will move our disciplinary grievances
Note 2: The company's investigation must normally be made before its
from broad, general defenses to sharp, concrete due process issues. (The compartmentaliza-
disciplinary decision is made. If the company fails to do so, its failure
tion method is detailed within the Interviews as Evidence and Roadmap to Winning Strat-
may not normally be excused on the ground that the employee will get
egy Books.)
his day in court through the grievance procedure after the exaction of
The next chapters in this Handbook address those specific due process issues.
discipline. By that time, there has usually been too much hardening of
The USPS often takes the position that the EL-921 is only a guide, not an official Article 19
positions. In a very real sense, the company is obligated to conduct itself
Handbook. To refute such an argument, the Union relies upon the following:
like a trial court.
1. Directives and Forms Catalogue Publication 223.
Note 3: There may, of course, be circumstances under which manage-
This USPS publication lists all the USPS Handbooks and Manuals, including the EL-
ment must react immediately to the employee's behavior. In such cases,
921. In addition, it includes two handbooks (the EL-401 and EL-501) which are not part
the normally proper action is to suspend the employee pending investi-
of Article 19’s Handbooks and Manuals.
gation, with the understanding that (a) the final disciplinary decision will
In a binding Step 4 interpretive decision, H1C-NA-C 114, dated October 1, 1984, the
be made after the investigation and (b), if the employee is found inno-
USPS and APWU agreed the EL-401, "Supervisor's Guide to Scheduling and Premium
cent after the investigation, he will be restored to his job with full pay for
Pay", was not an Article 19 Handbook or Manual:
time lost.
MANAGEMENT ARGUMENT THAT THE EL-921
Note 4: The company's investigation should include an inquiry into pos-
IS NOT AN OFFICIAL HANDBOOK UNDER ARTICLE 19
sible justification for the employee's alleged rule violation.
____________________________________________________________________
4. Was the company's investigation conducted fairly and objectively?
A STRATEGY BOOK: DEFENSE vs. DISCIPLINE: DUE PROCESS AND JUST CAUSE
Note 1: At said investigation the management official may be both
IN OUR COLLECTIVE BARGAINING AGREEMENT
"prosecutor" and "judge," but he may not also be a witness against the
JEFF KEHLERT * National Business Agent * America Postal Workers Union, AFL-CIO
employee.
Revised August 2015
 
24
text}}
“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.
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