APWU of Iowa
APWU of Iowa
PO Box 539
Des Moines, IA 50302
United States
ph: 563-599-7725
alt: 515-669-8046
info
Discipline
Article 16 – Discipline Procedures
(National Agreements)
Disciplinary measures for attendance generally should be imposed progressively, beginning with oral or written warnings, then progressing to 7-day and 14-day suspensions, and finally to removal. Avoid rushing into discipline without first “doing your homework” to insure you meet the just cause and proof requirements – see Discipline Checklist link.
It is important to be able to show that the steps listed below have been taken to correct attendance deficiencies in the order listed and that you only took more severe action when the lower discipline steps proved to be ineffective – see Collective Bargaining Agreements – Article 16 link.
· Job Discussions for minor offenses
· Letter of Warning.
· Suspensions of 14 Days or Less
· Suspensions of More than 14 Days or Discharge
Employee Discipline Records
NOTE: The records of a disciplinary action against an employee shall not be considered in any subsequent disciplinary action if there has been no disciplinary action initiated against the employee for a period of two years. (Exception: See Article 16.8, National Agreement for rural carriers).
Upon the employee's written request, a disciplinary notice or decision letter will be removed from the employee's official personnel folder after two years if there has been no disciplinary action initiated against the employee in that two-year period.
Expectations and Job
Discussions
Expectations: Supervisors must not wait until an employee’s attendance is irregular to explain leave regulations and attendance expectations. The expectation that employees make every effort to avoid unscheduled absences should be discussed at regular intervals with those you supervise. General attendance requirements can be a topic for group discussions – such as during service talks or whenever a new employee is assigned to your area of responsibility.
Job Discussions: see Collective Bargaining Agreements – Article 16 link.
- A job discussion is considered to be an informal action, which means it is not considered to be discipline and is, therefore, not grievable.
- Whenever specific problems arise regarding an individual employee, the problems must be discussed in private with that employee and supervisor.
- A job discussion should be given for all minor offenses as specified in #5 below.
- Supervisors have a responsibility to encourage employees to correct their attendance before discipline is issued. A simple job discussion with the employee may be enough to correct the deficiency
- The job discussion should a) identify the problem – be specific, cite examples;
b) explain what the employee needs to do to correct the problem; c) explain what the consequences will be if the problem is not corrected; and d) explain that the next discipline step will be progressive for any infraction (i.e., unsatisfactory attendance, failure to follow instructions, poor performance, etc.).
Make sure that you share all completed copies of Forms 3971 with the employee to show his/her leave history during the discussion. You may also attach the eRMS Employee Key Indicator Report. This report provides a detailed overview of the employee’s attendance history, within a specific date range, so that excessive unscheduled absences and signs of probable leave abuse can be easily identified. A copy of this report should be given to the employee at the beginning of the discussion. The supervisor should record on this Report the date of discussion and the employee’s comments; it should be kept in a locked file.
Continue to monitor the employee’s leave history to insure the discussion was effective. If the employee corrects the deficiency, you need to let the employee know that you appreciate the improvement.
- It is advisable to make notes of your job discussion as the conversation will serve as proof that the employee had been made aware of his/her attendance responsibilities.
- Notes must be kept in a locked file - no reference to a job discussion is to be placed in the eRMS database or the employee’s personnel file.
Discipline Action Proposals
(DAP)
Disciplinary actions should be taken as promptly as possible after the offense has been committed. When discipline is issued untimely, grievances and arbitration decisions are likely to be sustained.
One of the primary reasons discipline is not issued timely is because supervisors send incomplete DAP packages to labor relation specialists. Before labor relation specialists can develop discipline letters for supervisors, they check to make sure that all supporting documentation is included in the DAP package. A lot of valuable time is wasted when additional information has to be gathered.
One simple way to prevent such delays is to “check off” that the items listed below are accurately completed and have been included in the DAP package: - see DAP Form link.
A complete DAP package must include, but is not limited to:
1. Form 3972
2. Forms 3971 – completed as follows:
a. Type of absence box needs to be checked
b. Approval or disapproval boxes need to be checked
c. Supervisor needs to sign and date the form
d. Employee needs to sign the form or the written words “employee refused to sign” needs to be annotated.
e. Compare Forms 3971 to the entries reported on the 3972 or the Key Indicator Report to insure no 3971’s are missing and that the “leave type” entries agree.
f. “Finalized” FMLA leave – see footnote
3. Employee Key Indicator Report – if your office has implemented the Enterprise Resource Management System (eRMS).
Footnote: When a new FMLA condition is requested, supervisors are to check the box “Approved FMLA, Pending Documentation Noted on Reverse” and sign the form.
Once the FMLA is approved or denied, it is the responsibility of the supervisor to “finalize” the action. If approved, the box “Approved, FMLA” must be checked. If disapproved, the box “approved, not FMLA” must be checked. Also, one of the following boxes needs to be checked on the reverse of Form 3971, depending on the reason the FMLA request was denied:
1. Absence Not for a Covered Condition
2. Absence Not for a Covered Family Member
3. Requested Documentation Not Provided
A copy of the “finalized” slip should be given to the employee.
Form 3971s that are checked “Approved, FMLA pending…” should be maintained by the supervisor in a secure file until the Form has been “finalized”. Then the form can be sent to the Hawkeye District TACS Office for file retention.
Steps to Progressive Discipline
It is management’s responsibility to take appropriate action to control unscheduled absences by its employees – see Unscheduled Leave link. Any action that is taken needs to be consistent, equitable, and timely.
By taking the time to carefully read, understand and then apply the following information, the use of unscheduled leave in your unit should decline.
When is it time to issue discipline for unsatisfactory attendance? Listed below are examples of reasons that may warrant discipline:
- When a review of an employee’s leave history indicates the employee is regularly using unscheduled leave at a rate equal to or greater than the rate it is earned.
- When the employee has established unscheduled leave patterns (i.e., leave taken in conjunction with: 1) scheduled days off, 2) holidays, 3) specific days of week, etc.).
- When you are able to answer “yes” to the questions on the Discipline Checklist – see Discipline Checklist link.
Job Discussion – Article 16 – National Agreement – see Job Discussion link
A job discussion is the first and most important step to correcting unacceptable attendance. It is an opportunity to share your attendance expectations with the employee and to assure he/she understands the impact to the unit and the future consequences of poor attendance.
Restricted Sick Leave – ELM 513.39 – Please consult with a labor relations specialist prior to placing an employee on restricted sick leave (RSL). Placing an employee on RSL is not a precondition to require medical documentation (ELM 513.364) to support an unscheduled absence – see Documentation link.
Disciplinary Action Proposal (DAP) – see DAP link – When discipline is determined to be appropriate, review the Discipline Checklist before you complete a DAP package. You also may want to review some of the Reasons Discipline May Be Reversed link to avoid these common mistakes.
After meeting with the employee and his/her union representative – see Investigatory Interview link – it is important to check the DAP package to insure it is complete before submitting it to a labor relations specialist. Incomplete DAP packages is one of the primary reasons discipline is delayed. (NOTE: Discipline letters are prepared by labor relations specialists).
Discipline – Article 16 – National Agreement – see Article 16 link - Disciplinary measures normally should be imposed progressively in the following order:
· Letter of Warning
· 7-day suspension
· 14-day suspension
· Removal
Last Chance Settlements – see Last Chance Settlements link
Last chance settlement (LCS) terms must be clear and unmistakable and need to incorporate certain performance requirements plus other specific language. The attached link offers guidance in selecting terms that will clearly and objectively convey your intent, and terms that should be avoided. It is also important that you consult with a labor relations specialist before any last chance settlement is entered into.
Steps to Progressive Discipline
It is management’s responsibility to take appropriate action to control unscheduled absences by its employees – see Unscheduled Leave link. Any action that is taken needs to be consistent, equitable, and timely.
By taking the time to carefully read, understand and then apply the following information, the use of unscheduled leave in your unit should decline.
When is it time to issue discipline for unsatisfactory attendance? Listed below are examples of reasons that may warrant discipline:
- When a review of an employee’s leave history indicates the employee is regularly using unscheduled leave at a rate equal to or greater than the rate it is earned.
- When the employee has established unscheduled leave patterns (i.e., leave taken in conjunction with: 1) scheduled days off, 2) holidays, 3) specific days of week, etc.).
- When you are able to answer “yes” to the questions on the Discipline Checklist – see Discipline Checklist link.
Job Discussion – Article 16 – National Agreement – see Job Discussion link
A job discussion is the first and most important step to correcting unacceptable attendance. It is an opportunity to share your attendance expectations with the employee and to assure he/she understands the impact to the unit and the future consequences of poor attendance.
Restricted Sick Leave – ELM 513.39 – Please consult with a labor relations specialist prior to placing an employee on restricted sick leave (RSL). Placing an employee on RSL is not a precondition to require medical documentation (ELM 513.364) to support an unscheduled absence – see Documentation link.
Disciplinary Action Proposal (DAP) – see DAP link – When discipline is determined to be appropriate, review the Discipline Checklist before you complete a DAP package. You also may want to review some of the Reasons Discipline May Be Reversed link to avoid these common mistakes.
After meeting with the employee and his/her union representative – see Investigatory Interview link – it is important to check the DAP package to insure it is complete before submitting it to a labor relations specialist. Incomplete DAP packages is one of the primary reasons discipline is delayed. (NOTE: Discipline letters are prepared by labor relations specialists).
Discipline – Article 16 – National Agreement – see Article 16 link - Disciplinary measures normally should be imposed progressively in the following order:
· Letter of Warning
· 7-day suspension
· 14-day suspension
· Removal
Last Chance Settlements – see Last Chance Settlements link
Last chance settlement (LCS) terms must be clear and unmistakable and need to incorporate certain performance requirements plus other specific language. The attached link offers guidance in selecting terms that will clearly and objectively convey your intent, and terms that should be avoided. It is also important that you consult with a labor relations specialist before any last chance settlement is entered into.
Settlements
General Settlements
Terms to Avoid | Comments | Better Terms |
Grievant must show improvement |
What is improvement – is 19 days better than 20? | Must demonstrate satisfactory attendance (Allows the supervisor to determine what he/she considers to be satisfactory attendance). |
Review in 6 months and remain for 1 year. | Why bother to review in 6 months if you have no written recourse should you find attendance has not improved. | Discipline will be removed on a specified date (i.e. 03/10/08) providing …. (State specifically when and under what conditions the discipline will be removed. Monitor regularly and keep the employee apprised – acceptable or not acceptable.) |
Will remove all discipline | Only negotiate the case before you |
|
Will remove if no further discipline of similar nature
| Shouldn’t prior discipline remain for any type of future discipline? | Discipline will be removed on a specified date (i.e. 03/10/08) providing the employee receives no further discipline. |
Note: Please contact a labor relations specialist to discuss or obtain the provisions.
Last Chance Settlements (LCS)
A last chance agreement serves as the “last chance opportunity” for the employee to save his/her career. To do so, the employee must:
- establish and maintain a satisfactory record, which is a requirement of his/her position.
- agree that future deficiencies will result in removal.
Note: Please contact a labor relations specialist for guidance.
Discipline
Checklist
A “yes” response to the following questions is a good indicator that it may be time to issue discipline.
- Do you have just cause? – see Just Cause link
- Did you share and document your attendance expectations with the employee? That is, was the employee forewarned of the disciplinary consequences for failure to maintain regular attendance – see Job Discussion link?
- Is the discipline being issued in a timely manner? Disciplinary actions should be taken as promptly as possible after the offense has been committed. Regularly monitoring your employees’ attendance history (eRMS or Form 3972) is one way to insure discipline is issued timely.
- Are your attendance expectations reasonable – corrective and not punitive?
- Have you tried to work with the employee to improve his/her attendance? Ways to work with employees is through coaching (discussing/reminding of attendance expectations), reasonable settlements, and referral to the EAP. – see EAP link
- Did you permit the employee to have his/her day in court – employee interview – see Investigatory Interview link? Employees have the right to know with reasonable detail why you consider their attendance to be unsatisfactory and to be given an opportunity to defend themselves before the discipline is initiated. Based on the employee’s response, you may find that the planned discipline is either inappropriate or premature.
If you fail or refuse to consider an employee’s explanation in making a decision to discipline, this would be considered a violation of that employee’s due process rights. It is important that you not have a closed mind, refusing to take into account valid excuses. You need to be open to a reasonable explanation.
- Are attendance expectations consistently and equitably enforced? They must be applied fairly and without discrimination. What you do for one, you must do for another in the same situation – it is unwise and unfair to make exceptions.
Ask yourself – Is the severity of the discipline that I plan to issue in line with the discipline that I usually mete out to other employees with past records similar to this employee’s record? You need to be prepared to justify why a particular employee may have been issued a more severe discipline than another.
- Is the discipline progressive – are you starting at the lowest, most lenient level and progressing to the highest – most severe level (i.e., LOW, 7- day suspension, etc.)? – see Article 16 link
The 510 – Administrative Action screen in eRMS should show all prior discipline steps that have been taken. When in doubt – check it out with Labor.
- Did you check to make sure the discipline you plan to issue is appropriate by determining if the last discipline step had been reduced or removed by a former supervisor during a settlement? When in doubt – check it out with Labor.
If you were able to respond “yes” to steps 1 – 9, then prepare and submit a complete DAP package to Labor – see DAP Package link.
NOTE: It is important that you do not complete a DAP package prior to an employee’s interview. This premature action would suggest that you have reached a final decision before giving the employee his/her day in court.
Just Cause
Checklist
for
Unsatisfactory
Attendance
Disciplinary action must be for just cause. Whether an employee has been removed or disciplined for just cause commonly involves an analysis of whether the following basic components of that term have been satisfied for attendance purposes:
1. Was the charged offense proven?
2. Was the employee forewarned that his/her conduct would lead to discipline?
3. Was discipline applied in a nondiscriminatory or non-disparate manner?
4. Was proper review and concurrence obtained?
5. Was the penalty imposed reasonably related to the seriousness of the offense?
6. Was the discipline appropriate under incorporated statutes, such as the FMLA?
Reasons that will support just cause for unsatisfactory attendance:
- Employees are required to be regular in attendance. Failure to be regular in attendance may result in disciplinary action, including removal from the Postal Service – ELM 665.41
- Postal officials may take appropriate disciplinary measures to correct violations of the regulations referred to in 665 – ELM 665.6.
- Employee’s attendance record shows excessive unscheduled absences and the employee continually fails to show an ability or inclination to correct his/her attendance problem.
Management has the right to impose discipline even when the absences are due to illness and even if the absences had previously been “approved” for pay purposes. Unscheduled absences create the need for overtime, penalty overtime and delayed mail – which impact expense and the operational efficiency of the Postal Service.
Investigative Interviews
Weingarten rights
Weingarten rights always must be applied whenever you engage in an investigatory interview of a bargaining unit employee.
The Supreme Court ruled in 1975 that an employee may insist upon union representation at an employer’s investigatory interview, which the employee reasonably believes might result in disciplinary action. The principles in this decision are known as Weingarten rights.
Weingarten rights apply when the meeting is an investigatory interview – when management is searching for facts and trying to determine the employee’s guilt or innocence or where facts elicited at the meeting might ultimately result in discipline or a change in previously imposed discipline.
Employee
- An employee has Weingarten rights where he or she reasonably believes that discipline or changes in previously imposed discipline could result from the investigatory interview. Whether or not an employee’s belief is “reasonable” depends on the circumstances of each case.
- The employee must affirmatively ask for representation – such as, by responding that he or she will answer questions once a steward is provided.
- The employee has the right to a steward’s assistance – not just a silent presence.
- Employees also have the right to a “pre-interview consultation” with a steward – that is, to meet in advance of the investigatory interview to prepare for the interview.
- Although ELM Section 665.3 requires all postal employees to cooperate with postal investigations, the employee still has the right under Weingarten to have a steward present before answering questions. The employee may respond that he or she will answer questions once a steward is provided. Employees may exercise these rights without reprisal.
Steward
- A steward cannot exercise Weingarten rights on the employee’s behalf.
- A steward does have a speaking part in the interview rather than being a silent presence.
Employer
- The employer is not required to inform the employee of the Weingarten right to representation.
- Once the employee has requested representation, the employer is required to either:
1. Grant the request
2. Deny the request and offer the employee the opportunity to continue the interview without union representation; or
3. Deny the request and hold no interview at all
- The employer would violate the employee’s Weingarten rights if it refused to allow the union representative to speak or tried to restrict the steward to the role of a passive observer.
NOTE: Improperly denying the employee’s request for union representation may have legal consequences for the Postal Service.
PAST PRACTICE
A clear definition of past practice as stated by Arbitrator Clair Duff
(American St. Gobain Corp., 46 LA 920, 921) is as follows:
"Past practice may be described as a pattern of conduct which
has existed over an extended period of time and which has been
known to the parties and has not been objected to."
Q. When does a past practice become binding on the parties?
A. Arbitrator Richard Mittenthal concluded that in order for a post practice to rise
to the level of a binding past practice, one ordinarily would expect it to be clear,
consistently followed, followed over a long period of time and to have been mutually
accepted by the parties.
Q. What do we mean by "clear" past practice?
A. With respect to clarity, arbitrators have found that the party claiming the past
practice should show that, given a set of similar circumstances, the past practice was
followed in nearly every situation where there were not extenuating circumstances.
That is, where the circumstances did not change, the practice was followed on a
consistent basis.
Q. What is meant by "consistently followed"?
A. To determine if a past practice has been consistently followed, it is not required
that in every case the results be the same. The criteria required, given the same set
of circumstances, is that the parties could reasonably expect a similar outcome.
Q. What length constitutes an "extended period of time" in establishing a past
practice as a binding past practice?
A. Any place from weeks to years depending on the frequency. If a certain practice
occurs every hour for a period of one week, some arbitrators have found that a past
practice would be binding, while a practice which occurs once a year would require
a period of years to establish a binding past practice.
2.
Q. What determines if a past practice has been "mutually accepted by the parties"?
A. To prove that a practice was mutually accepted a showing must be made that
both parties were cognizant of the practice and accepted it. The determination of
whether parties had knowledge of the practice lies with the arbitrator. In many
cases arbitrators have made that determination based on the action or inaction of
either party. That is, where it can be shown that a particular practice was
widespread, clearly utilized and done over a reasonable length of time, an arbitrator
will hold both parties to such a practice, even if they claim at the arbitration hearing
they had no knowledge that such a practice was occurring. In those cases, mutuality
is implied by the meeting of the other criteria of past practice.
Q. When can you change past practice?
A. When a past practice exists and has not been used by an arbitrator to define
ambiguous language, such a practice may be changed if the nature of the practice
and the circumstances under which it arose have been altered. As Arbitrator
Richard Mittenthal stated in Houston Electronics Corporation, 70 LA 887:
"One must consider the underlying circumstances that give a practice its true
dimensions. A practice is not broader than the circumstances out of which it has
arisen."
Q. What are some changes to the "underlying circumstances" that could permit a
change in past practice?
A. There are basically four ways that underlying conditions can be changed,
thereby causing the past practice to be negated.
First is by showing that the practice has become inefficient or uneconomical. Such a
statement must be accompanied by empirical evidence which supports the position
of the party indicating that the past practice should be stopped.
Second, past practice may be invalidated when there is an underlying change in the
way the company does its business.
Third way to alter past practice is in those situations where the bargaining unit
changes. If either the company changes owners or the union that represents the
employee changes, then the past practice ends. Arbitrators are divided in these
situations and may retain the practice if one of the parties remain. (Change of
owners or unions does not mean change of the Postmaster or the branch president.}
3.
The fourth way that a past practice may be changed is if the party that would like to
discontinue the practice makes its desire known during the course of negotiating a
new contract. If either party fails to do this during negotiations, the practice may
not be unilaterally revoked during the life of the contract.
SUMMARY
A past practice, to exist, must be clear, consistently followed, followed over a
reasonable length of time and shown by the record to have been accepted by the
parties.
Arbitrators consider past practice to clarify ambiguous language and will uphold
past practice unless the existing language which contains the ambiguous language is
changed during collective bargaining. If the ambiguous language is not changed,
the past practice will continue to define mutual intent.
It is crucial to note that where a past practice has developed between the parties,
and is not used to define ambiguous language, the practice can be changed or
nullified in circumstances where: (1) the practice is no longer economical or
efficient; (2) the company changes owners or the bargaining unit changes; (3) the
company changes operations or the nature of the business changes; or (4) one party
informs the other during the negotiation of a new contract that it is not bringing
forth into the new contract the specific past practice that had developed.
Absent these factors, established past practice is given great weight in grievance
arbitration and should be duly noted by the parties.
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Iowa Postal Workers Union, APWU, AFL-CIO
Be Union - Buy Union
The Iowa Postal Workers Union is a part of the American Postal Workers Union (APWU) AFL-CIO.
The Iowa Postal Workers Union (IPWU) affirms its belief in a single union of all Postal Workers in non-supervisory levels and will work to achieve this goal.
The IPWU educates our membership through use of seminars and specials class as well as through media outlets such as the Postal Solidarity (The Iowa Postal Worker paper is a part of this joint effort.)
The IPWU works towards educating the general public on the history of the Labor Movement.
The IPWU will work for the election of candidates - regardless of party - who favor pasage of improved legislation in the interest of all labor. To work for the repeal of laws which are unjust to labor and Postal workers, such as the denial of the right to strike and denial of the right to support political cadidates of their choice.
The IPWU will represent all members in every way possible with issues dealing with, but not limited to grievances.
The IPWU will continue to organize the unorganized.
APWU of Iowa
PO Box 539
Des Moines, IA 50302
United States
ph: 563-599-7725
alt: 515-669-8046
info
