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William "Bill" Lewis

Maintenance Craft - NBA

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Delaware, Maryland, New Jersey, New York, Pennsylvania, 

Virginia, West Virginia & Washington DC

Shop Steward's Corner

APWU GUIDE TO THE GRIEVANCE PROCEDURE

Grievance Tips

Rights Before Postal Inspectors

Weingarten Rights

APWU GUIDE TO THE GRIEVANCE PROCEDURE

A grievance includes, but is not limited to, the complaint of an employee or the union which involves the interpretation, application of, or compliance with the provisions of the APWU Agreement or any local Memorandum of Understanding.

When an employee or the union believes their rights under the Agreement have been violated your Shop Steward should:

Establish a File

01.  Request all relevant information from appropriate management official.  Take detailed notes.

02.  Interview grievant, witnesses if appropriate and review applicable documents.

Step 1

03.  Discuss grievance with immediate supervisor within 14 days of date union or employee first learned of its cause.

04.  Take notes of union and supervisor's Step 1 positions in discussion.

05.  Supervisor's decision shall be given no later than 5 days after Step 1 discussion, unless parties agree to extension.

06.  If decision is unfavorable supervisor shall initial Step 2 standard grievance form at request of steward confirming date decision was rendered.  Demand the form be initialed!

07.  Review notes of Step 1 meeting, contract and applicable references and documentation.  If necessary discuss with other union officials.

08.  The union is entitled to appeal adverse Step 1 decision to Step 2 within 10 days after receipt of Step 1 decision.  Use standard grievance form.

Step 2

09.  Installation head or designee must meet with union representative within 7 days after receipt of Step 2 appeal.

10.  The parties representatives may mutually agree to jointly interview witnesses.  In discharge cases either party shall have the right to present no more than two witnesses.

11.  The parties shall make a full and detailed statement of facts relied upon, contractual provisions involved, and union shall explain remedy sought.  Union and management will exchange all relevant papers and documents.

12.  Take notes of statement of facts relied upon by management.

13.  Where agreement is not reached, employer's written decision is furnished to the union within 10 days after the Step 2 meeting.  Time limit may be extended by mutual agreement.

Decision shall include Employer's understanding of:

a.  all relevant facts

b.  contractual provisions involved

c.  detailed reasons for denial

14.  If union's representative believes Employer's facts or contentions in decision are incomplete or inaccurate he/she may file a written statement to the Employer's representative setting forth corrections or additions.

Step 3

15.  The union is entitled to appeal adverse decisions to the Regional Director for Employee & Labor Relations within 15 days after receipt of Step 2 written decision.

File to union Step 3 representative should include:

a.  Letter of charges (discipline)

b.  Step 1 notes and any witness statements

c.  Step 2 decision and Appeal Form

d.  Step 2 notes

e.  Copies of relevant documents (overtime lists, manuals, seniority list, etc.)

f.  Letter of objections/corrections if filed

g.  Step 3 appeal

NOTE:  Copy of Step 3 appeal and letter of corrections and objections must be forwarded to Employer's Step 2 representative and Regional Director for Employee & Labor Relations.

GRIEVANCE TIPS

 In order to be successful in arbitration the grievance file must be properly documented.  Obtaining the proper documents and conducting interviews must be done by the steward during the step 1 investigation.  These interviews and documents are necessary in order to be successful in arbitration.

In discipline cases, as well as contract cases, it is imperative that the steward interview the issuing supervisor, and all other management officials involved in the early days of the grievance so we may obtain all the facts and details, before the supervisor speaks with their labor representatives.  Too many times the supervisor changes his/her story after they speak with labor relations representatives and, without interviews to lock them in, they are free to change their version at the arbitration. 

The following should be included in the grievance case file when the grievance involves discipline: 

DOCUMENTS REQUIRED FOR DISCIPLINE GRIEVANCES i.e.:

 LETTERS OF WARNING, SUSPENSIONS and REMOVALS. 

1. Copy of the discipline letter or letter of charges, (letter of warning, notice of suspension, notice of removal, etc.)
2. Copy of the grievant’s statement.  (Have the grievant write them out; help them, and support them.) It is imperative to get the grievant’s version of what happened.  This also helps protect the union.
3. Copy of the Factual Report and all requests to higher authority for the concurrence.
4. Interview the grievant, supervisor, concurring official and all witnesses including management’s witnesses.
5. Obtain all evidence management relied on to support their position.  Question them on the evidence and obtain copies.  Also request any and all statements obtained by management during their investigation and all evidence referenced in the letter of charges.
6. Copy of all past elements cited in the letter of discipline.  Verify all past discipline.  Check on all settlements.  Was past discipline cited?  Is it outdated? (Over 2 years as per Article 16.10.)
7. Include in the grievance package the number of years of service the grievant has in the Postal Service.  (This could work both ways; in our favor or against us.  I.e.: The employee should have known better or, on the other side of the coin, the employee should receive consideration for years of service.)  Does the employee have any awards in their OPF?  Request to review their OPF.

ATTENDANCE RELATED INFRACTIONS 

1. All of the above.
2. Copies of all 3971’s for the dates cited on the discipline letter.  Are the 3971’s clear and legible? (If not, demand to review the original 3971’s.)  Verify the dates with the grievant and supervisor and watch for errors.  (i.e.: wrong dates, rest days, scheduled vs. non-scheduled, etc.)
3. Copy of 3972’s (both sides) for the past 2 years.  Demand to review the original to determine if your copy is accurate.
4. Copy of all medical documentation, including the medical officer’s documents.  Was the employee sent home by the medical unit?  (Not fit for duty?)
5. Number of hours of sick leave and annual leave the employee is carrying.

DISCIPLINE INVOLVING THE INSPECTION SERVICE 

1. All of item 1.
2. Copy of the Investigative Memorandum generated by the Inspection Service.
3. Obtain all information stated in the Investigative Memorandum and interview all parties referenced in the I.M.
4. Interview all Postal Inspectors involved with the Postal Service’s investigation.

CONDUCT INTERVIEWS FOR ALL DISCIPLINE GRIEVANCES 

1. The grievant.
2. The supervisor who issued the discipline.
3. The concurring official.
4. All witnesses for the grievant.
5. All witnesses for management.

When conducting interviews the steward should focus on the WHO, WHAT, WHERE, WHY, WHEN and HOW principles from all parties being interviewed.  When interviewing the issuing supervisor and concurring supervisor formulate your questions to work around the 7 TESTS OF JUST CAUSE and the above-mentioned principles. 

While conducting the interview, the steward should try to place the person being interviewed at ease and make them feel very comfortable.  Most people being interviewed tend to clam up and perceive it as an adversarial confrontation.  A wise steward should start the interview by explaining the reason and purpose of the interview to the individual.  Always allow the person speaking time to finish and never interrupt.  Never turn the interview into a confrontation even when you know the person speaking is not being truthful with you.  Try to lead the person into giving the correct or honest answer.  This is not always an easy task. 

Prior to conducting interviews have all your facts together.  Have your questions all written up and leave space for your answers.  Keep in mind that an answer to one question may lead to another question.  Try to know the answer to your questions before asking it. 

PRE-DISCIPLINARY INTERVIEWS 

1. Get the date of the Day in Court (EL-921).  If you are the steward present during a day in court process, you must take notes of the meeting.
2. Who was the supervisor who interviewed the employee?
3. Determine if an interview really occurred?
4. Was the employee given advanced notice that he faced possible discipline and afforded an opportunity to defend him/her self?
5. Did the supervisor lead the employee into believing that this meeting was just a discussion and everything would be OK?  (This happens far too many times.)
6. Did the supervisor conduct some form of investigation while performing the Day in Court and encourage the employee to discuss the matter?
7. Did the employee request a union representative be present during the Day in Court process?  Remember an employee is not entitled to a union representative during an official discussion.  (We may be able to use the argument that when the employee was denied a steward that this had all the makings of an official discussion.)

 ***NOTE***ASK THE GRIEVANT AND SUPERVISOR THE SAME QUESTIONS.

The day in court process is part of the grievant’s due process right.  I have personally witnessed supervisors who totally abuse the process.  The supervisor must conduct a fair and objective investigation into the alleged offense and the employees must be given an opportunity to defend themselves.  Did you notice the date on the day in court?  This PRE-DISCIPLINARY INTERVIEW must be prior to requesting discipline.  (Also watch the date of the request for discipline.)  This Pre-Disciplinary interview falls under the test of Just Cause; was a fair and objective investigation conducted prior to the disciplinary action being initiated?  There could not have been a fair and objective investigation into the matter if the grievant’s account of the incident was not included in management’s investigation.  Management during this process must try to determine if there was any mitigating factors involved, and did it have bearing on the grievant’s behavior.  The American Postal Workers Union has been very successful in arbitration at overturning discipline for the lack of a pre-disciplinary interview.  Always cite in the grievance papers that management failed to conduct a fair and objective investigation by failing to conduct a pre-disciplinary interview.  This is particularly important to raise the issue of pre-disciplinary interview on the step 2-appeal form.

TEST FOR JUST CAUSE

The definition of just cause was really defined by Arbitrator Carroll Daugherty in Grief Brothers Cooperage vs. United Mine Workers District 50, 41 LA 555 and is the cornerstone used by virtually every arbitrator.  Arbitrator Daugherty formulated even (7) specific questions that must be answered in an arbitrator’s mind to establish that a suspension or discharge was for “just cause.”  A positive “no” answer to one or more of the questions would indicate that “just cause” did not exist. 

      These questions are taken from the APWU Shop Steward Handbook. 

1. Did the USPS give the employee forewarning or knowledge of the possible or probably disciplinary consequences of the employee’s conduct?  In other words, was there some kind of written (or oral) instructions governing the situation the employee is being disciplined for?  This could be a notice posted on a bulletin board or found in an order book.  The important thing is that it must be proven that there was actual written or oral communication of these rules before the incident occurred.
2. Was the rule or managerial order reasonably related to the orderly, efficient and safe operation of the USPS’s business?  Even if he/she believes it’s unreasonable, the employee must obey the order.  The employee can later file a grievance.
3. Did the USPS, before administering discipline to an employee, make an effort to discover whether the employee did, in fact, violate or disobey a rule or order?  The employee has a right to know what he/she is being disciplined for.  The investigation should be made before disciplinary action is taken.  In too many cases, the action is taken without proper investigation.
4. Did the USPS conduct the investigation fairly and objectively?  (No comment needed.)
5. At the investigation, was there substantial evidence that the employee was guilty as charged?
6. Has the USPS applied its rules, orders and penalties evenhandedly and without discrimination to all employees?  Have other employees been guilty of the same infraction of rules and not received a disciplinary action?
7. Was the degree of discipline administered by the Postal Service in a particular case reasonably related to (a) the seriousness of the employee’s proven offense, and (b) the record of the employee in his/her service with the USPS?  It would not be just to fire an employee for being tardy twice over a six-month period if he/she had an unblemished record for 15 years prior to that.  On the other hand, if the employee has a record of previous offenses, that record should not be used to judge whether he/she is guilty of the latest offense.

Following the above will not guarantee a winner in all grievances, but it should enhance their chances of being settled successfully.  

Good Luck with your case

Bill

Rights Before Postal Inspectors

If questioned by a U.S. Postal Inspector, even if you believe you are not guilty of any wrong doing, it is suggested that you:

 *  Remain calm;

*  Correctly identify yourself;

*  Do not physically resist an arrest or a search of your person or property;

*  Read aloud to the Postal Inspectors the statement ; listed below,

*  Remain silent until you have consulted with your APWU representative or attorney, as appropriate.

This is not complete legal advise.  Always consult with a lawyer.

Statement

I request the presence of my APWU representative.  If I am a suspect in a criminal matter, please so advise me.  If so, I wish to contact my attorney.

His/Her name is _______________________________________

Telephone number _____________________________________

If I am under arrest, I request you to so advise me and to inform me of the reason or reasons.

I do not consent to a search of my person or property.  If you have a search warrant, I request to see it at this time.

I do not waive any of my rights, including my right to remain silent.  I will not sign a waiver-of-rights form, nor admit or deny any allegation, nor make any written or oral statement unless my attorney is personally present and so advises me.

Weingarten Rights

EMPLOYEE'S RIGHT TO UNION REPRESENTATION

The rights of unionized employees to have present a union representative during investigatory interviews were announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.

Employees have Weingarten rights only during investigatory interviews:

An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.

If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation.

Management is not required to inform the employee of his/her Weingarten rights; it is the employees responsibility to know and request.

When the employee makes the request for a union representative to be present management has three options:

(1) it can stop questioning until the representative arrives.

(2) it can call off the interview or,

(3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)

Once you’ve asked for union representation, any attempt by management to continue asking questions before a union representative gets there is ILLEGAL. If supervisors pressure you by telling you that "you’re only making things worse for yourself" by asking for union representation, that’s against the law too.

Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview.

The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.

While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee's case.

What to Say if Management Asks Questions That Could Lead to Discipline:

"If this discussion could in anyway lead to my being disciplined or terminated, or affect my personal working conditions, I request that my union representative, officer, or steward by present at the meeting. Without representation, I choose not to answer any questions."

Know the limits:

Just as it’s important to know what your Weingarten rights are, it is also important to know the limits.

You are not entitled to have a steward present every time a supervisor wants to talk to you. Remember, if the discussion begins to change into questioning that could lead to discipline, you have the right to ask for representation before the conversation goes any further. If you are called into the supervisor’s office for an investigation, you can’t refuse to go without your steward. All you can do is refuse to answer questions until your union representative (or steward) gets there and you’ve had a chance to talk things over.

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