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November 12, 2022
Know Your Responsibilities When Issuing Discipline
By Sue Bartko
President of Pennsylvania State Branch 941 and Labor Relations Specialist
Hello, NAPS postmasters. I recently was promoted to Labor Relations specialist. However, I have not forgotten what it’s like to be a postmaster in the field.
One of the things that frustrated me when I was a postmaster was what to do when the union files a grievance. How could I show justification for my actions? And if I didn’t, how would I remedy that? One of the first things that can be confusing is the incident date. Often, the union will enter the date it became aware of the incident as the incident date. But the incident date always is the date the action occurred that caused the union to file a grievance. It is the date the employee or union first learned or may reasonably have been expected to have learned of its cause.
For example, you issue a letter of warning, dated Oct. 1, 2022, to an employee on Oct. 3, 2022. The union learns of the employee receiving the letter of warning on Oct. 6, 2022. The correct incident date in this circumstance is Oct. 3, 2022; that is the date the employee received the discipline.
Don’t accept the incident date on a grievance form unless you have verified it to be correct. If the union fails to correct the incident date, you must indicate in your contentions that the incident date is incorrect, then establish the correct incident date. The union has only 14 days from the date of incident to file the grievance, so, if it enters an incorrect incident date and you verified the correct date, the union’s grievance may be untimely.
It is your responsibility to indicate the grievance is untimely when writing your contentions. Discuss this with your supervisors, as well, because when they are meeting an Informal Step A, they must inform the union steward the grievance is untimely. Then, you must maintain it is untimely at Formal Step A.
The timeliness argument must be maintained throughout the grievance procedure. This holds true when you are meeting with any of the unions on grievances, not just the NALC.
Article 15 of all the national agreements reads: “Any employee who feels aggrieved must discuss the grievance with the employee’s immediate supervisor within fourteen (14) days of the date on which the employee or the Union first learned or may reasonably have been expected to have learned of its cause.”
Your supervisors or you must be available to meet at the initial level of the grievance procedure. When the grievance reaches Step 2/Formal Step A, you, as postmaster, must schedule the meeting as expeditiously as possible, but no later than seven days following receipt of the Step 2/Formal Step A appeal, unless the parties agree on a later date.
Do not ignore this step! Otherwise, the union will move the grievance to the next step without any contentions from you. When meeting on grievances, the two items you should have on your desk are the national agreement and the corresponding interpretation manual. Make sure you review the agreement and the interpretation manual during the meeting:
When the union claims a contract violation, it is the union’s burden to prove a violation of the contract occurred. But, regardless, you must provide contentions and disprove what the union is claiming.
You must explain in your contentions what occurred and your justifications. You need to disprove each of the union’s claims when writing your contentions.
When the grievance involves disciplinary action, management has the burden of proof to show “just cause” for issuing the discipline. The just cause provision requires a fair and provable justification for discipline. Arbitrators frequently divide the question of just cause into six subquestions. They often apply the following criteria to determine whether the action was for just cause.
Every disciplinary grievance must have the following six subquestions listed; you must show how you met each of them:
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 10 years ago.”
You may have to prove the employee should have known the rule. Certain standards of conduct normally are expected in the industrial environment; 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, insubordination and more may generally be assumed to have understood that these offenses are neither condoned nor acceptable, even though management may not have issued specific regulations to that effect.
Is the rule a reasonable rule? Management must ensure rules are reasonable, based on the overall objective of safe and efficient work performance. Management’s 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, then disciplining without warning, is improper.
If employees are consistently allowed to smoke in areas designated as no-smoking areas, it is not appropriate to suddenly start disciplining employees 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) on notice of its intent to reinforce that regulation. Singling out employees for discipline usually is improper. If several similarly situated employees commit an offense, it would not be equitable to discipline only one.
Was a thorough investigation completed? Before administering discipline, management must make an investigation to determine whether the employee committed the offense. Management must ensure its investigation is thorough and objective; this is the employee’s day-in-court privilege. Employees have the right to know, with reasonable detail, what the charges are and to be given a reasonable opportunity to defend themselves before discipline is initiated.
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? Following is an example of what arbitrators may consider an inequitable discipline: If an installation consistently issues five-day suspensions for a particular offense, it would be extremely difficult to justify why an employee with a past record similar to that of other disciplined employees was issued a 30-day suspension for the same offense.
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 never may be used to establish guilt in a case you presently have under consideration, but the record 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 requirement that discipline be corrective rather than punitive is an essential element of the just cause principle. In short, it means that, for most offenses, management must issue discipline in a progressive fashion, issuing lesser discipline (for example, a letter of warning) for a first offense and a pattern of increasingly severe discipline for succeeding offenses (for example, short suspension, long suspension and discharge). The basis of this principle of corrective or progressive discipline is it is issued for the purpose of correcting or improving employee behavior—not as punishment or retribution.
I hope this information is helpful. If you have any questions, please contact your district Labor Relations specialist.
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