DefVsDisc2016

Source Document

APWU Defenses vs. Discipline 2016

APWU Defenses vs. Discipline 2016

Forward

This handbook, which was my twelfth as a National Officer, continues to be designed to place into a single accessible package the strategies necessary for members, stewards, officers, and arbitration advocates to provide the best possible defenses when disciplinary actions are imposed. Through strategic use of the Just Cause definition, the Article 17 interview and the Collective Bargaining Agreement, this Strategy Book is intended to promote thorough and well-reasoned grievance initiation, investigation, processing and arbitration advocacy in disciplinary instances.
Procedural and due process issues increasingly have, over the years, replaced arguments “on the merits”. Now, more than ever, we must utilize Just Cause as it is defined and as it is required to be applied by management, the arbitrators, and yes, by stewards and advocates. We win a far greater percentage of disciplinary cases based upon due process then we ever have in the past; but too many valuable and job-saving due process and just cause arguments are never explored much less pursued. It is my hope that this Handbook will continue to enable stewards and advocates to successfully develop and prove the arguments to better defend our members.
Following the introductory section covering Just Cause, each of the next 23 chapters discusses in detail a particular due process, just cause subject. Included are a definition and explanation of the Issue, The Union’s Argument, The Applicable Collective Bargaining Agreement and Joint Contract Interpretation Manual Provisions and/or National Level Arbitration Mandates, The Article 17 Interview, and Regional Arbitral Reasoning and Support.
Although some parts of this Handbook are directed more to the shop steward than to the arbitration advocate – and vice versa – all the information contained herein should provide everyone in our Union with a better understanding and ability to deal with the disciplinary process and the defenses necessary to protect the membership.

Yours for Education in our Union, I remain,
Jeff Kehlert
National Business Agent
American Postal Workers Union, AFL-CIO
jkehlert@apwu.org
jeffkehlertapwu@aol.com
(609) 937-2993 – Cell
(856) 740-0115 – Office

ACKNOWLEDGMENTS

Many thanks to the following Union Leaders who have contributed to the advancement of Due Process strategies: Paul Cirino President, Lancaster Area Local APWU President, Pennsylvania State Postal Workers Union Lu-Ann Glaser President, Keystone Area Local APWU Director, Publicity & Legislation Pennsylvania State Postal Workers Union Bill Lewis President, Trenton Metro Area Local APWU President, New Jersey State Postal Workers Union Bob Pitchalonis Clerk Craft Director, Pennsylvania State Postal Workers Union Clerk Craft Director, Philadelphia BMC Local APWU John L. Jackson, Jr. National Business Agent, Clerk Craft, Philadelphia Region Robert Romanowski National Business Agent, Clerk Craft, Philadelphia Region Ann Albro-Mathieu President, Providence Rhode Island Area Local APWU THEY HAVE MADE THE DIFFERENCE I also thank the following National Business Agents who responded to my request for addi- tional arbitral reference, some of which appears in this Strategy Book: Steve Albanese National Business Agent – Clerk Craft, Boston Region John Clark National Business Agent – Clerk Craft, Chicago Region John Kelly National Business Agent – Clerk Craft, Denver Region Lyle Krueth National Business Agent – Clerk Craft, Minneapolis Region

DEDICATION

This Handbook is dedicated to my wife, Congetta. Without her enthusiasm, wisdom, intuition and commitment to the cause, it would not have come into being.

SPECIAL RECOGNITION

I gratefully acknowledge the critically important contribu- tions of Providence Rhode Island Area Local President Ann Albro-Mathieu and National Business Agents Robert Romanowski and John Louis Jackson, Jr. for their roles as co- authors of the Progressive Discipline for PSEs, Chapter 24. They are the first Union Educators to so author a portion of DEFENSE VS. DISCIPLINE.

INTRODUCTION

Before we begin with the just cause discussion, a requirement in grievance processing must be emphasized. WE MUST RAISE OUR JUST CAUSE AND DUE PROCESS ISSUES AND ARGUMENTS IN SPECIFIC DETAIL NO LATER THAN IN THE WRITTEN STEP 2 APPEAL. Article 15 of the Collective Bargaining Agreement states:

ARTICLE 15 GRIEVANCE-ARBITRATION PROCEDURE

Section 2. Grievance Procedure Steps

Step 1: (d)The Union shall be entitled to appeal an adverse decision to Step 2 of the grievance procedure within ten (10) days after receipt of the supervisor’s decision. Such appeal shall be made by completing a standard grievance form developed by agreement of the parties, which shall include appropriate space for at least the following:

Detailed statement of facts;

Contentions of the grievant;

Particular contractual provisions involved; and

Remedy sought.

Step 2(d): At the meeting the Union representative shall make a full and detailed statement of facts relied upon, contractual provisions involved, and remedy sought. The Union representative may also furnish written statements from witnesses or other individuals. The Employer representative shall also make a full and detailed statement of facts and contractual provisions relied upon. The parties’ representatives shall cooperate fully in the effort to develop all necessary 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 preclude the parties from jointly agreeing to interview additional witnesses as provided above.
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This is the “full disclosure” stage of our grievance/arbitration procedure. We have a contractually required obligation to raise our issues and arguments in detail in our Step 2 appeal or at the Step 2 meeting. Should we fail to raise those arguments at Step 2, management will argue the Union failed to meet its obligation in pursuit of the grievance.

Management will argue their due process rights to address the issues and arguments at the lowest possible step--and thus the possibility of lowest possible step resolution--are violated. Management will, in effect, turn the tables on us and pursue their own due process issues if we fail to fully raise our issues and arguments at Step 2. We must remember that in recent years, the Union has been highly successful in winning due process arguments within the grievance/arbitration procedure and at arbitration. Due process violations in disciplinary cases--such as the improperly conducted Pre-Disciplinary Interview--and in contract cases--such as the lack of proper grievance appeal language in letters of demand--have resulted in a solid history of successful grievance processing. As we have pursued these due process violations to successful ends, management has increasingly sought and pursued due process issues against the Union. Their education in due process is directly related to our successes. For these reasons, we can expect management to raise every due process issue which presents itself, and in particular, our obligation to raise our issues and arguments no later than at Step 2.

Without a commitment and practice to full development of our arguments through thorough grievance investigation and processing, we will see many valuable Union due process issues and USPS violations excluded by arbitrators and of no assistance to the defense of members in need.

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.”

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:

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.

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.

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.

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.

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.

Was the disciplinary action taken in a timely manner? Disciplinary actions should be taken as promptly as possible after the offense has been committed.

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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DefVsDisc2016

Contents

Source Document

Forward

ACKNOWLEDGMENTS

DEDICATION

SPECIAL RECOGNITION

INTRODUCTION

ARTICLE 15 GRIEVANCE-ARBITRATION PROCEDURE

CHAPTER 1

JUST CAUSE

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DefVsDisc2016

Source Document

Forward

ACKNOWLEDGMENTS

DEDICATION

SPECIAL RECOGNITION

INTRODUCTION

ARTICLE 15 GRIEVANCE-ARBITRATION PROCEDURE

CHAPTER 1

JUST CAUSE

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