Ohio State NAPS Convention, August 23, 2013
JUST CAUSE
DOUGLAS FACTORS
Stay out of trouble when
issuing or reviewing discipline
JUST CAUSE
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)
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:
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?
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)?
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.
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.
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.
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?)
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?
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.
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.)
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).
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.
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.
DOUGLAS FACTORS
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?
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;
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;
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.
JUST CAUSE
DOUGLAS 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, preapply 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.
Ohio State NAPS Convention, August 23, 2013