Managing Discipline
Managing Discipline
1. “just cause”
· Article 16.1
· Investigation (See EL-921)
1. “Hot Stove” rule for handling formal discipline.
2. Weingarten Rights
3. Pre-D
· Just Cause Fact Sheet
Ask the follow-up question.
Pertinent and relevant information to support request
1. Penalty
· Discussion, LOW, short term, long term, removal.
1. Case Study – Arbitrator Decisions
2. Attachments
· EL-921
· Just Cause Fact Sheet
· Contents of Grievance Package
o Discipline cases
o Contract cases
· Arbitration Decisions - Issues
o Pre-D Interview
o Review of Discipline
o Progressive Discipline
o Traditional
o Supervisor’s Authority (grievance procedure)
o Nexus (off-duty conduct)
o Redefined Charge by Arbitrator
o FMLA Documentation (prospectively v. retroactively)
o Safety/Suitability
Just Cause
What is Just Cause? The term just cause is found in Article 16 of our National Agreements, it states;
No employee shall 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 follow safety rules and regulations.
Arbitrators frequently divide the question of just cause into six sub-questions and often apply the following criteria to determine whether the adverse action was for just cause. These criteria are the basic considerations that the supervisor must determine before initiating disciplinary action.
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.
2. Is the rule reasonable?
· Management must maintain work rules by continually updating and reviewing them, and making sure that they are reasonable, based on overall objective of safe and efficient work performance. Management’s rules are reasonably related to business efficiency, safe operation of our business, and the performance we might expect of the employee, and this is known to the employee.
3. Is the rule consistently and equitably enforced?
· If the rule is worthwhile, it is worth enforcing, but be sure that it is applied fairly and without discrimination.
4. Was a thorough investigation completed?
· Before administering the discipline, management must conduct an investigation to determine whether the employee committed the offense. Management must ensure that its investigation is thorough and objective.
· This includes Pre-Disciplinary (Pre-D) interview with the employee. The employee has the right to representation, (See Weingarten Rights). This affords the employee due process. It allows for the employees “day in court”, affirmative defenses and mitigating circumstances.
· The employee has the right to know with reasonable detail what the charges are and to be given a reasonable opportunity to defend themselves before the discipline is initiated.
· Secure witness statements at the time of incident. Make note of a negative response; if the employee did not want to give a statement at the time of incident.
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.
· 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 never be used to establish guilt in a case you presently have under consideration, but may be used to determine the appropriate penalty.
· The penalty is based upon a reasonable person’s determination. The penalty should not be so far out line that it shocks.
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.
· The longer it takes to initiate discipline the more it affects the employee’s due process. Memories are always better when in close proximity to events as they occurred (i.e. witness statement and Pre-D). However, a thorough investigation needs to be completed.
· In accordance with Article 16.8 (16.6 w/NRLCA), “In no case may a supervisor impose suspension or discharge upon an employee unless the proposed disciplinary action by the supervisor has first been reviewed and concurred by the installation head of designee.”[1]
Hot Stove Rule
Consider any proposed formal action not only in terms of the facts, but also consider the reasons for the employee’s behavior.
Douglas McGregor draws an analogy between touching a hot stove and experiencing discipline. When you touch a hot stove, your response is immediate, consistent, and impersonal.
1. Immediate: The burn would be immediate, and there would be no question of the cause and effect. The closer the consequences to the behavior, the more it is associated with the behavior.
2. Consistent: Everyone who touches the stove is burned. There are few behaviors a supervisor can engage in that are more demoralizing and disruptive than inconsistent disciplinary action.
3. Impersonal: Individuals are burned not because of who they are, but because they touched the stove. The supervisor MUST maintain a focus on behavior. The individual must be made to believe that the only thing criticized is the behavior itself and not his/her personality.
Weingarten Rights
In 1975 the U.S. Supreme Court its Weingarten decision on the subject of the employees rights to union representation during investigatory interviews conducted by the employer. In Weingarten the Supreme Court upheld the position that individual employees have the right to refuse to submit without union representation to an investigatory interview which the employee reasonably believes may result in disciplinary action. The outline and limits are in the following excerpt from the Court’s opinion.
First, the right the right inhere in § 7’s guarantees of the employees to act in concert for mutual aid and protection.
Second, the right arises only in situations where the employee requests representation. In other words, the employee may forego his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative.[2]
Third, the employee’s right to request representation as a condition of participation in an interview is limited to situations where the employee reasonability believes the investigation will result in disciplinary action. [The Board] “would not apply the rule to such run-of-the-mill shop-floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques.[3]
Fourth, exercise of the right may not interfere with legitimate employer prerogatives. The employer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview and forgoing any benefits that might be derived from one.
Fifth, the employer has no duty to bargain with the union representative at an investigatory interview. “The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only interested, at that time, in hearing the employee’s own account of the matter under investigation”
The parties National Agreements state that a discussion is for minor offences by an employee, management has the responsibility to discuss such matters with the employee. Discussions of this type shall be held in private between the employee and the supervisor. Such discussions are not considered discipline and are not grievable. An official discussion is not discipline. It is intended to correct any deficiency prior to taking disciplinary action. However, should the stated deficiency continue the employee would subject themselves to discipline not as a result of the discussion but their failure to adhere to the topic of discussion. An official discussion is like being pulled over for speeding and the officer letting you go this time. The Union should realize that a discussion is to be held in private and advise the employee accordingly. Union intervention is encouraged before the issuance of discipline or before something becomes a grievance.
Pre-Disciplinary Interview
First and foremost the Pre-Disciplinary (Pre-D) interview is mandatory prior to the issuance of any discipline. The Pre-D is mandatory because it lends itself both to the investigation and to the due process (day in court) of the disciplinary process. The Pre-D is conducted when the Supervisor is contemplating a disciplinary action based upon his or her side of the story. The Pre-D gives the employee the opportunity to respond to the allegations and the grounds for discipline. The Pre-D is a process, in which the employee can tell their side of the story, raise affirmative defenses, and discuss any mitigating factors. This process must be completed so that the supervisor can then determine whether or not discipline is warranted.
The “Just Cause Fact Sheet”[4] is a great tool because it begins to address the six sub-questions or the tests of just cause. However, this is the beginning of the process. As the employee states their side of the story there always be conscious of the follow-up question. It is not the purpose that the Pre-D is a cursory event required prior to discipline it is a part of the thorough investigation. The employee may impart defenses, comparisons that you are not aware of and may influence subsequent decisions in the grievance procedure or by an impartial arbitrator regarding the subject disciplinary action.
Components of an Effective Pre-D
· Inform the employee that you are considering discipline.
· State the infraction and explain the reason and purpose of the interview to the employee.
· Ask the employee what he/she has to say in his or her behalf.
· LISTEN! This is a probative interview to find all the fact circumstances. Should subsequent discipline be issued what was discussed in the Pre-D will be a part of the grievance procedure.
· Always allow the person speaking time to finish.
· Never turn the interview into a confrontation.
· Ask questions, as appropriate. Do not subject the employee to the “third degree”.
· Ask the follow-up question. When the employee finishes, ask, “Is there anything else that I should take into consideration.
· Excuse the employee. The decision to initiate discipline dose not have to be made at the time of this interview. However, this decision should be made once all the fact circumstances have been considered.
The decision to issue corrective action should be accompanied with all supporting documentation, (See attachments Contents of Grievance Packages). Supporting documentation will differ with the type of discipline being considered. Most, if not all, supporting documentation should be secured prior to the Pre-D. This documentation must be advanced at each step of the grievance procedure.
Penalty
As stated in the first sentence of Article 16, Discipline Procedure, of the parties National
Agreement:
“In the administration of the Article, a basic principle shall be that discipline should
be corrective on nature, rather than punitive.
The main purpose of any disciplinary action is to correct undesirable behavior on the part of the employee. All actions must be for just cause and, in the majority of cases the action taken must be progressive and corrective. The National Agreement in Sections 3, 4 and 5 addresses Letters of Warning (LOW), Suspensions of 14 days or less and Suspensions of more than 14 days or discharge respectively. Arbitrators have historically recognized this progression to be a LOW, short term suspension, long term suspension and removal. Historically, the U.S. Postal Service has applied this progression as a LOW, 7-day suspension, 14-day suspension and removal. The Greater Michigan District recognizes a single line of progressive discipline. Therefore, any subsequent considerations for progressive discipline will be based upon the employee’s prior disciplinary record[5].
Questions to ask yourself when
contemplating disciplinary action
· How serious is the offense?
· What is its impact on the efficiency of service?
· What is the employee’s overall performance and past record?
· Did the employee have notice and knowledge of the expected behavior?
· What is necessary to correct the employee’s deficiency?
As noted discipline should be progressive in nature, however, there are behaviors that are so egregious in nature that progressive discipline is not warranted. Such examples are subject but not limited to physical altercation and theft. Arbitrators have held that there are inherent understandings with the employee in the workplace. An employee does not need forewarning that it is unacceptable to strike a co-worker or that stealing from the employer would be just cause for any lesser form of discipline.
**If you are contemplating not following a progressive line of discipline contact Labor
Relations. Moreover, Labor Relations can review any discipline prior to issuance.
In order for disciplinary action to be effective and gain the desired result of seeking to correct an employee’s behavior, it must be supported by the facts, not assumptions, of what occurred. To gather the facts (supporting documentation), supervisors must investigate the who, what, where, when and why factors in every case. By conducting a thorough investigation of the individual circumstances from the beginning, the supervisor can build a case that will meet the requirements for demonstrating just cause.
Case Study
1. Arbitrator Linda DeLeone Klein, C90C-1C-D 93036875 (1994).
Arbitrator Klein sustains a grievance for Violation Last of a Chance Agreement for failure to conduct a Pre-Disciplinary Interview. Opinion on page 8 states, “The Postal Service is required to establish that it had just cause for discharge even though she was in a last chance status…” Arbitrator Klein continues, “The procedural safeguards of “just cause” are not eliminated or negated by the last chance agreement. The denial of a chance to be given a “day in court” before the removal notice was issued must be viewed as a breach of procedure which adversely affected the grievant’s right to due process.” Arbitrator Klein concludes, “…absent the procedural error, the position of Management would have been sustained.”
1. Arbitrator Dana Eischen, E95R-4E-D 01027978 (2002) w/NRLCA.
Article 16.6 Review of Discipline of the 1995-1999 USPS-NRLCA
National Agreement:
a. Is not violated if the lower level supervisor consults, discusses, communicates with or jointly confers with higher reviewing authority before deciding to propose discipline;
b. Is violated if there is a “command decision” from a higher authority to impose a suspension or discharge;
c. Is violated if there is a joint decision by the initiating and reviewing officials to impose a suspension or discharge;
d. Is not violated if the higher level authority does not conduct an independent investigation and relies upon the record submitted by the supervisor when reviewing and concurring with the proposed discipline;
e. Is violated if there is a failure of either the initiating or reviewing official to make an independent substantive review of the evidence prior to the imposition of a suspension or discharge;
f. Is violated if there is no evidence of written review and concurrence prior to the imposition of a suspension or discharge.
1. Arbitrator Martin Soll, G01N-4G-D 03065540 (2002).
“At USPS , the parties have agreed that for most offences progressive discipline is an important, and many times the most important factor when determining whether just cause does or does not exist to remove a postal employee.”
1. Arbitrator Dana Eischen, B95R-4B-D 97011669 (1997)
“In Arbitration of discipline/discharge grievances under a traditional just cause standard, the Employer bears the burden of demonstrating persuasively, by at least a preponderance of the record evidence, that:
1. Management made a fair, informed and proper determination of the employee’s guilt or innocence;
2. The accused employee actually engaged in the breached of duty, malfeasance or misconduct charges; and
3. The disciplinary penalty imposed was not unreasonably harsh, discriminatory or otherwise inappropriate in all circumstances, including considerations of the nature of the offense, progressive discipline, and factors, if any, exacerbating or mitigating the employee’s demonstrated guilt.
Arbitrator Eischen concludes, “The file is permeated with a strong redolence of prejudgment and orchestration of outcome in handling of this case from the predisciplinary investigation to the removal action and through Step II grievance appeal.” In addition, “That prejudicial mixing of the roles of investigator, witness, accuser, prosecutor and judge in one individual is a factor in my determination that the quamtum of discipline imposed by the Employer in this particular case must be modified under the Just Cause standard.”
1. Arbitrator J. Fred Holly, S8N-3F-D 9885 (1980)
“The grievance procedure set forth in Article XV of the National Agreement provides that first step grievance discussions must be with the Grievant’s immediate Supervisor, and “the Supervisor shall have authority to settle the grievance.” In the instant case, the appropriate representatives met at Step 1, but a serious question arises regarding the Supervisor’s authority to settle the grievance. Can one realistically assume that the Supervisor had the authority the settle a grievance in this situation where the removal action had been initiated by the Sectional Center Director of Employee and Labor Relations? Obviously not, and the Step 1 procedure was no more than a charade.
1. Arbitrator Dana Eischen, B91R-4B-D 96050654 (1997)
Given the volume of arbitration under collective bargaining agreements between the Postal Service and various labor organizations, it is not surprising that each of the parties supplied me with a number of awards holding that discharge was or was not appropriate for a Postal Service employee convicted of crime involving moral turpitude. Several prior decisions proffered by the Postal Service seem to stand for the dubious proposition that proven conviction of such an offense is alone sufficient to justify discharge, irrespective of any demonstrated logical connection (nexus) between the employees off duty conduct and his employment with the Postal Service.
1. Arbitrator Joel Troch, K01N-4K-D 03067440 (2003)
“The last quoted paragraph of the charges asserted that the Grievant had “conducted yourself in an unprofessional manner” and engaged in “improper conduct”. At least one of the regulations cited relates to conduct, courtesy and personal behavior (Section 666.2 ELM) which appears to relate the November 30 incidents involving the customer who was allegedly blocked his mail box. At the hearing, the Postal Service spent considerable time and effort introducing evidence related to several exchanges between the customer and the Grievant, including some that occurred after the issuance of the notice of removal.”
This arbitration is important; when the charge is not well defined, it allows the Arbitrator to redefine the charge in their terms. In addition, on page 13 of the same award Arbitrator Troch combines the use of hearsay evidence and the issues that were discussed in the Pre-D as controlling and the basis for the removal notice. The grievant was brought back.
1. Arbitrator B.R.Skelton, H90M-1H-D 94057914 (1995)
“…may qualify for FMLA leave. But as noted above, “serious health conditions” must be documented and approved for FMLA leave prospectively and not retroactively. And certainly not after discipline has occurred.” Arbitrator Skelton concludes, “The Family Medical Leave Act was not applicable…absences cannot be made applicable retrospectively.”
1. Arbitrator Jacquelin Drucker, Esq., A94C-1A-D 98013185
This employee had 22 injuries in fewer than 9 years of employment. Arbitrator Drucker states, “Under these circumstances, the traditional just-cause element of progressive, corrective discipline must yield in the interest of safety where the removal is effected to protect the employee, co-workers, and employer rather than capital punishment of the workplace for either a grievous wrong or a series of uncorrected misconduct. When it is legitimately and fairly determined by an employer that an employee cannot safely perform her duties and is not a safe presence in the workplace, the employer has the right to remove the employee rather than subjecting her to further injury while playing out the stages of progressive discipline.” Referencing Arbitrator Marx: “Whether an employee is basically suitable for continued employment, not by his deliberate actions but because of his apparent continuing inability to perform any work, however restricted in nature, in a safe manner.”
Cautionary Note: The grievant’s cavalier attitude regarding her own accidents made the Arbitrator in this case make a credibility determination. The grievant stated on one of the accident reports, “for some reason slippery reason the floor wanted to kiss it with my left hip. I did, I’m sorry and I’m hurting.” The grievant in this case had twice gone into restricted areas and fallen. Arbitrator Drucker concludes, “Weighing the weaknesses in the Grievant’s account against the various supporting factors present in Management’s accounts, the balance tips in favor of Management’s account.” Satiability is an additional burden placed upon the Agency by the Arbitrator. Nothing can substitute for remedial training or corrective action taken prior to the accident when observing unsafe acts.
[1] The National Postal Mail Handlers Union require that the concurrence by signed and dated in writing. The National Rural Letter Carriers Association requires that the concurrence be in writing.
[2] However, it is advised that every effort is made to make a Union representative available when the decision is made to conduct a Pre-D, up and to the point as stated, that the employee forgoes this guarantee.
[3] Official Job Discussions are not subject to Weingarten rights. The supervisor must make it known that this an Official Job Discussion and that said discussion will not lead to discipline.
[4] The Just Cause Work Sheet can be found on the Greater Michigan District WEB page under Human Resources/Labor Relations.
[5] The provisions of Article 16.10 are applicable, 16.8 with the National Rural Letter Carriers Association.
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