Ohio State NAPS Convention, August 23, 2013

1. Ohio State NAPS Convention, August 23, 2013

2. DOUGLAS FACTORS JUST CAUSE Stay out of trouble when issuing or reviewing discipline

3. JUST CAUSE

4. JUST CAUSE Just cause is a common standard in Labor Arbitration that is used in Labor Union contracts in the USA as a form of job security. The four US Postal Union National Agreements contain the following: ARTICLE 16 DISCIPLINE PROCEDURE Section 1. Statement of Principle 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. (Emphasis added)

5. JUST CAUSE When an arbitrator looks at a discipline dispute, the arbitrator first asks whether the employee's wrongdoing has been proven by the employer, and then asks whether the method of discipline should be upheld or modified. In 1966, an arbitrator, Professor Carroll Daugherty, expanded these principles into seven tests for just cause. The concepts encompassed within his seven tests are used by arbitrators when deciding discipline cases. These tests are:

6. JUST CAUSE 1. Reasonable Rule or Work Order Is the rule or order reasonably related to the orderly, efficient, and safe operation of the business? Is the rule or instruction straight forward and stated in language that is easy to understand? Have you been consistent and unbiased in applying the rule or standard? Is it applied consistently throughout your department? What is your department's discipline record for violation of this rule or standard?

7. JUST CAUSE 2. Notice Did the employee receive adequate notice of the work rule or performance standard and the possible consequences of failure to comply? Is the violated work rule or performance standard published? Is it up to date and relevant to the business needs of your unit? How was the employee made aware of it (department orientation, bulletin board, desk manual, staff meeting notes, prior oral or written communication, employee's job description, written standards)? What evidence do you have that the employee is aware of it, and understands it (new employee orientation, signature on a routing slip, signoff page)?

8. JUST CAUSE 2. Notice (continued) Have you reviewed the employee's personnel file? Has this issue been raised in performance appraisals or previous disciplinary actions? If so, how recently? Prior notice may not be necessary in cases of serious misconduct such as theft, insubordination, or job abandonment.

9. JUST CAUSE 3. Sufficient Investigation Did you conduct an investigation before making a decision about taking disciplinary action? Why do you suspect that a work rule violation or performance discrepancy occurred? Can the employee perform the task? Is there a history of successful performance, or could the employee need additional training? Are there witnesses other than you? List others who may have knowledge of the issue through involvement or as witnesses (supervisors, employees, clients). Interview them and take notes.

10. JUST CAUSE 3. Sufficient Investigation(continued) Are there written records pertinent to the case in your department or elsewhere? Should in-house records be secured under lock and key during the investigation? Are there written processes or procedures which have a bearing on the case? Is there equipment that should be examined by you or experts? If you suspect misappropriation of Postal resources, you should immediately contact the Office of Inspector General and your Employee and Labor Relations office. Your own investigation will proceed, but other offices may provide information which becomes part of your evidence.

11. JUST CAUSE 4. Fair Investigation Was your investigation fair and objective? How long ago did the alleged infraction occur? (Unnecessary delays may send a message that you don't consider the infraction to be serious.) If you think you already know what happened, have you looked only for evidence to support your theory? Should you conduct the investigation, or are you too close to what happened to be objective? Should the employee remain on the work site during the investigation? (Do you fear sabotage, or is the employee a threat to others?)

12. JUST CAUSE 4. Fair Investigation(continued) Have you made every effort to reconcile conflicting statements or other conflicting evidence? Are you prepared to discard what you cannot validate? Have you given the employee a chance to appear, with a representative, to tell their side of the story and respond to the evidence you have gathered?

13. JUST CAUSE 5. Proof During your investigation, did you find proof of misconduct or of a performance discrepancy? What conclusions are clearly supported by the evidence you gathered? Remember that evidence must be truly substantial, not flimsy or slight, to form a basis for taking disciplinary action.

14. JUST CAUSE 6. Equal Treatment Have you dealt with your employees equally, without discrimination? Are work rules applied consistently? Are all employees held accountable for the performance standards established for their positions? Have similarly situated employees (similar records and infractions) received the same discipline? What is your department's record for taking disciplinary action for this type of infraction? What is the Agency record? (Explore this with your Labor Relations office.)

15. JUST CAUSE 7. Appropriate Discipline How do you decide what's appropriate? Is the discipline you propose to take reasonably related to the seriousness of the problem? (Did the violation pose serious safety problems or create work flow disruptions for the department?) Is it reasonably related to the employee's record (length of service and overall performance)? Is this violation part of a pattern? A minor infraction does not merit harsh discipline, unless it is a repeat occurrence by the employee (progressive discipline).

16. JUST CAUSE 7. Appropriate Discipline (continued) Given the same violation for two or more employees, their respective records of service provide the only basis for administering different disciplinary actions without being subject to a charge of discrimination. Do you have the authorization to take this action, or should you have it reviewed by the next level of management? Can you defend this action based on these criteria? Consult your Labor Relations office.

17. JUST CAUSE Apply these just cause tests to your cases prior to issuing discipline to your employees to ensure the best chance for the discipline to survive any grievance appeals, through arbitration.

18. DOUGLAS FACTORS

19. DOUGLAS FACTORS Douglas Factors are a set of tests that are applied to disciplinary cases by the Merit Systems Protection Board (MSPB) to determine if the “Punishment fits the crime”. These tests are a result of a 1981 MSPB case, Curtis Douglas vs. Veterans Administration. The MSPB ruled in that case that agencies had the burden of proof, by a preponderance of the evidence, that the punishment fit the circumstances. In doing so, the MSPB outlined a non-exhaustive (not necessarily complete) list of factors, which may be aggravating and/or mitigating depending on the circumstances that agencies were to consider. It is generally recognized that not all factors apply to all cases. Review these factors when defending against discipline issued to your members. Were they properly applied prior to the issuance of discipline?

20. DOUGLAS FACTORS • The nature and seriousness of the offense, and its relation to the employee’s duties, position and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; • The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; • The employee’s past disciplinary record; • The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;

21. DOUGLAS FACTORS • The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties; • The consistency of the penalty with those imposed on other employees for the same or similar offenses; • The consistency of the penalty with any applicable agency table of penalties; • The notoriety of the offense or its impact upon the reputation of the agency;

22. DOUGLAS FACTORS • The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question; • Potential for the employee’s rehabilitation; • Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and; • The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

23. JUST CAUSEDOUGLAS FACTORS The Just Cause tests and the Douglas Factors are applied to cases in an attempt to determine if the discipline issued is appropriate for the infraction. Just Cause is primarily used in arbitration cases involving the discipline of craft employees and Douglas Factors are used in discipline cases subject to MSPB review. If you are placed in a position where discipline must be issued, pre-apply the Just Cause tests or Douglas Factors to ensure a rules or policy violation occurred and to determine if the “Punishment fits the crime” and would withstand outside review. Refer to the checklists provided to ensure you have applied all of the tests and/or factors in your review process.

27. Ohio State NAPS Convention, August 23, 2013