Reading a Disciplinary Notice
If you should receive a disciplinary notice make sure you read it over and share it with your shop steward immediately so he/she can file a grievance.
Q: What should you do first?
A: Read the disciplinary notice. It may seem obvious, but this is always the first step when you investigate discipline. Don’t assume you know what’s at issue until you read the notice. Typically, you will want to take a few minutes and read every word in the charge thoroughly.
Below is a list of possible errors:
1. Timeliness. How long did Management wait from the time of the alleged violation as well as to the pre-disciplinary interview, to issue the discipline? This opens Management to a Union claim that the discipline was untimely issued. Generally, Management waives its right to issue discipline when it waits too long after the incident in question. This rule protects the Carrier’s right to prepare a defense when memories are still fresh.
2. How many absences? If the letter is on attendance, Management lists the dates the Carrier called in sick on the discipline letter. If the Carrier has called in sick on five dates, but there are actually 2 absences, lasting two days apiece, that is only 3 occurrences. This is worth investigating because there appear to be three absences, not five.
3. Past elements. It states under Article 16, Section 10, if Management cites a prior discipline letter on the disciplinary notice, and the Carrier has been discipline-free for two years it shouldn’t be cited as a past element. If the prior discipline letter had been more recent, the Steward could still argue “apples and oranges.” As an example, a failure to deliver Express Mail on time and a failure to be Regular in Attendance are so different, that Management must stretch logic to connect them. Also, as explained in Article 16, Section 2, the contract does not allow Management to cite an official discussion as a past element in discipline. Additionally, Article 16 of the National Agreement prohibits Management from citing Discipline that has not yet been adjudicated through the grievance procedure.
4. Explanation of diabetes—a serious health condition covered by the FMLA. This is potentially a fatal flaw if the discipline is for attendance. The carrier states clearly that the same medical condition has caused repeated absences. If Management has this information they are obligated by the Family and Medical Leave Act to investigate further and learn whether the absences were covered by the FMLA. Investigation would show that diabetes is a chronic condition that easily qualifies as a “serious health condition” under the law. Management has the right to request documentation of the Carrier’s condition, of course. However, the Postal Service is absolutely prohibited from disciplining the carrier for sick leave taken due to his/her diabetes problems. If that is the case, some of the absences may be due to a serious health condition and protected by the FMLA.
5. The alleged violations. Disciplinary notices should state the rule or rules which the Grievant allegedly violated. Look out for Management “piling on” by citing two rules, one rule might not relate to say an attendance letter. The first appears proper, for it requires employees “to be regular in attendance” (ELM Section 665.41). The second violation cited, however, is curious. ELM Section 112.15 requires employees to “prompt, courteous, and obliging” while performing duties, and warns then to “refrain from loud talking and the use of profane language.” That hardly relates to unscheduled sick leave. This is probably a case of Management “piling on” citations and alleged violations, hoping that one or more will stick.
6. The charge. Then there is the charge itself. As an example, Management has charged the grievant specifically say with “Failure to be Regular in Attendance.” Does this charge fit the facts of the case and the violations listed in the disciplinary notice? That is not always the case. Sometimes management dumps a slew of violations onto a case that cannot support them. Some disciplinary notices begin with charging a letter carrier with extending a break, and then add charges of fraud or delaying the mail? Some managers throw the book at the grievant, taking the equivalent of a parking ticket and escalating it to manslaughter. There is no hard-and-fast standard in the ELM, or the contract. Those charges are open to interpretation. The steward may want to look at other, similar discipline, the attendance records of other employees, and so forth.
Make sure you show your shop steward the disciplinary letter.
Have a Merry Christmas and a Happy & Healthy New Year!
Be safe, stay well, and keep smiling.
