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 Issue
• The Definition
• The Argument
• The Collective Bargaining Agreement
• The Interview
• The Arbitrators

The following due process elements are included as chapters:

• Just Cause
• The Pre-Disciplinary Interview
• Investigation Prior to Discipline's Initiation
• Higher Level Review and Concurrence
• Authority to Resolve the Grievance at the Lowest Possible Step
• Denial of Information
• Nexus between off-duty misconduct and USPS Employment
• Timeliness of Discipline
• Disparate Treatment
• Higher Level Concurring Official as Step 2 Designee
• Double Jeopardy/Res Judicata
• Disparate Elements of Past Discipline Relied Upon for Progression
• Past Elements of Discipline not Adjudicated, yet Relied Upon in Subsequent Discipline
• Modified Past Elements of Discipline not Cited in Modified State in Subsequent Discipline
• Placement in Off-Duty Status Outside Article 16.7 Reasons
• Placement in Off-Duty Status Without Post Placement Written Notification
• Placement in Off-Duty Status Following Time Lapse
;
• 30 Day Advance Notice
• Statement of Back Pay Mitigation in Notices of Removal and Indefinite Suspensions - Crime Situation

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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