DEFENSE VS. DISCIPLINE
DUE PROCESS & JUST CAUSE
IN
OUR
COLLECTIVE BARGAINING AGREEMENT
A NEW "STRATEGY" BOOK
BY:
JEFF
KEHLERT
NATIONAL BUSINESS AGENT
My new "strategy" book, "Defense vs. Discipline" is the latest in a series I
have produced as a National Officer for the APWU.
This, the twelfth in
that series, brings together in nineteen chapters the Due Process strategies
necessary when management imposes discipline. The Strategy Book utilizes
Arbitrator Carroll Daugherty's Just Cause definition - found in Article 19's
EL921 Handbook; the pertinent Union arguments, the Collective Bargaining
Agreement, National Arbitration mandates; Step 4 interpretive decisions;
regional arbitral reference and the key - and sorely underused weapon in our
investigative arsenal - the Union's investigative interview. There is even a
United States Supreme Court decision.
Together these elements frame the
best defenses vs. disciplinary actions.
Each chapter is constructed as
follows:
The following due process elements are included as chapters:
The following is an excerpt from one of those chapters:
THE DEFINITION
The Pre-Disciplinary interview is the multi-element due process right of each
employee to be:
1. Forewarned of the specific charge in the intended
disciplinary action;
2. Forewarned of the degree and nature of the
intended disciplinary action; and
3. Asked for his/her side of the story.
This is the employee's "Day-in-Court".
THE ARGUMENT
All the above is required before the disciplinary action is initiated.
Management must conduct a pre-disciplinary interview; that is, forewarn the
employee that discipline is being contemplated, what that discipline will be,
the charge the discipline is based upon, and ask the employee for his/her side
of the story. Whether or not management utilizes a written request for
discipline, the pre-disciplinary interview must be conducted prior to the
initiation of any request for discipline. The request for discipline is the
initiation of discipline.
Must the pre-disciplinary interview be done
in person? No. Management may conduct a pre-disciplinary interview over the
telephone or even through correspondence, informing the employee of the charge,
nature, and degree of the intended discipline and soliciting the employee's side
of the story.
A typical pre-disciplinary interview should be
conducted as follows:
Manager: Mr. Doe, I am considering issuing you
a Notice of Removal for "Failure to be Regular in Attendance." Your attendance
record is as follows. This is your chance to respond to that intended action. I
want any information you may have from your side of the story prior to making my
final decision.
In this manner, management has forewarned the
employee and solicited the employee's side of the story. If management conducts
an "interview" with an employee immediately prior to issuing a disciplinary
action, i.e., at the same meeting in which the employee receives the
disciplinary notice, then that is not a pre-disciplinary interview. As the
manager already has produced the Notice, discipline has already been initiated.
To hold otherwise is both illogical and unreasonable. Pleadings from management
that they had not yet made a final decision on issuance are irrelevant as the
pre-disciplinary interview must occur prior to initiation, not
issuance.
Each chapter in the book contains similar illustrations of our
Due Process arguments and the most effective strategies for
pursuit.
The Book is designed to be user-friendly as it is intended
for continual reference by stewards, advocates and members alike.
As
procedures and due process increasingly replace arguments "on the merits," we
must turn to Just Cause as it is defined and as it should be applied by
management, the arbitrators and yes, by stewards and advocates. We win a far
greater percentage of discipline cases based upon Due Process than we ever have
in the past; but too many valuable and job-saving Due Process arguments are
never explored much less pursued. It is my hope that this Strategy Book will
enable stewards and advocates to successfully pursue the arguments to better
defend our members.
The Strategy Book contains quoted reference from 68
Regional Arbitration awards; reference to 86 additional Regional Arbitration
awards; three National Level Arbitration awards; four Step 4 Interpretive
decisions; and 279 Interview Question illustrations. There is also the one
United States Supreme Court decision.
In the past, all handbooks I
produced were available upon request from my office. Due to new National APWU
budget policies imposed in our Regional office, I can no longer distribute these
handbooks without cost to the requester - with the exception that one handbook
per requesting local in Pennsylvania, New Jersey and Delaware has been
authorized.
For information on how to obtain the strategy book,
including cost to cover reproduction and shipping only, please contact me
at:
Jeff Kehlert, National Business Agent
American Postal Workers Union
10 Melrose Ave., Suite 210
Cherry Hill, NJ 08003
(609) 427-0027
Everyone is encouraged to reproduce the strategy book.
Jeff
Kehlert
National Business Agent
Clerk
Craft
JK/jl