APWU Steward

Denied and Delayed Information is becoming an increasingly common issue for Stewards. Labor Relations and Management is taking longer to complete our requests than ever before. Managements delays have highlighted issues within our Grievance Procedure. Now, more than ever, we need to fight against Denied Information.

Where to Start

The Unofficial Grievance Guide addresses Denied Information in Chapter 20. That is a fantastic start and I am not going to retread a lot of ground here, but we are going to dig into a deeper analysis. If you don’t know how to file a denied information Grievance that is where you start.

The commonly held position by the APWU is that denied information is a violation of Article 17 and 31. I also suggest and encourage that it is a violation of Article 15 – Something we will explore here. If you are unfamiliar with 15, 17 and 31 of the CBA (Collective Bargaining Agreement), JCIM (Joint Contract Interpretation Manual) and the Unofficial Grievance Guide – read them.

Move Your Grievance

One of the most common complaints I hear is Management takes 7+ days to fill a Request for Information. I have seen the Union asking for and granting extensions over and over again until Management catches up. You should NEVER do this.

Management’s base defense against the Union is timeliness. We are going to look at a redacted threshold Award from Arbitration involving denied information below.

To summarize this award, Management did not fill the Unions Request for Information UNTIL moments before the Arbitration hearing. While it was true the Union was technically untimely according to Article 15, the Arbitrator granted that the Grievance could be heard because the Union objected to the new evidence finally being presented.

The Arbitrator’s analysis includes that Management was reliant on information that was denied to argue timeliness and that was improper. Further, the Arbitrator affirmed the Union should object to the introduction of the document. This leaves the Union with a Negative / Adverse Inference Argument.

What this means for you is if you move the Grievance your preserve timeliness and you also create an argument for Negative / Adverse Inference.

A Bit About Negative / Adverse Inference

The origin of Negative / Adverse Inference is from Common Law as a “Missing Witness.” Essentially, if a witness would ordinarily be called but was not, it was be assumed that witness would hurt the Government. The first Supreme Court appearance of this rule is in 1893’s , Graves v. United States.

In Elkouri & Elkouri’s How Arbitration Works, the following quote exists on drawing an Adverse Inference, “The failure of a party to call as a witness a person who is available and should be able to provide important testimony may permit an arbitrator to form an inference that the testimony would have been adverse to the party that did not call such person as a witness.”

The Adverse / Negative Inference rule is used in Labor Arbitration to apply to Documents as well. If we specifically ask for it, and it is denied or not provided, we are allowed to assume it would hurt Management.

What to Cite in Your Grievances

We have two Grievances to discuss here. When Denied Information you should file a Grievance specifically for the denied information. In that Grievance you would cite Article 17, Article 31, Article 15 and potentially Article 1 (Union Recognition) if repeatedly Denied Information.

You cite Article 17 and Article 31 as Management clearly has violated our rights as Stewards and Bargaining Unit Representatives to have all informtion to process or determine if a Grievance should be filed. That is the foundation. You also cite Article 15 – Lowest Level Resolution. The assumption here is if you were provided the information you would be more likely to Settle at Step 1 or Step 2. Even if the evidence hurts Management, they would be more likely to settle if you can prove it. By not giving you the information, you are arguing Management is intentionally obstructing the Grievance Procedure.

You also SHOULD cite the Denied Information in the original Grievance under 15, 17, and 31. The reason being is how the Grievance – Arbitration Procedure works. In the age of direct to Arbitration, direct to Step 2, direct to Expedited Arbitration and Step 3’s, different Grievance types takes different amounts of time.

I am all for a multiple Grievance Strategy, but the commonly accepted Strategy only works when you have no backlog and the cases are heard at the same time. For example, if all Discipline is direct to Arbitration and you have Denied Information which goes to Step 3, a separate Grievance will not help the disciplined employee.

This is why I recommend including the Adverse Inference argument in your original Grievance, and file a second Grievance with an additional remedy or two. You still ask for the original Grievance to be sustained, but you also ask for Cease and Desist and compensation to the Union. You do this knowing that in some cases the original Grievance will be adjudicated before the Denied Information Grievance is ever heard.

RFI Strategy

Next is your RFI strategy. I am a fan, with Discipline, of asking for either, A. “Anything and everything used to determine Discipline should be issued.” or B. “A Copy of Managements Request for Discipline / Discipline Packet.” I do this so I can argue that something was not considered. This can be used to form a weak Negative / Adverse Inference Argument as you can say that you must assume Management did not consider X, Y or Z.

If you want to make a strong Negative / Adverse Inference Argument, you must be deliberate in what you ask for. For example, if I have an AWOL Grievance and I ask for, “Anything and Everything used to determine the absence should be AWOL” but I have a hunch that the employee did call in and it would save them, I should ask for “a Copy of the Call – In Log / Report.” This prevents Management claiming you did not specifically ask for it.

Several RFI Strategies exist. The typical strategy used to file a Denied Information Grievance is:

1. Original RFI
2. Follow Up RFI (5 Days Later)
3. File Grievance (10 Days after Original Request)

The issue with this is it assumes you have ten days to wait for information to file a Step 1 over your original Grievance.

But Eric, I don’t want to file two RFI’s…

… Shouldn’t Management just fill my first request? Yes. They should. But the core fundamental fact is winning Grievances requires documentation. Lets look at it this way.

You have two Grievance files before you. One contains:

1. Document Proving Violation
2. Document Proving Violation
3. Email Confirming 1
4. Email Confirming 2

Two contains:

1. Document Proving Violation
2. Email Confirming 1

From a Grievance perspective, number one is FAR superior. It is twice the evidence for the violation. It is also proof the Union made every reasonable effort to attain the information. Management will commonly claim the information was not relevant, they did not receive the RFI, they were still working on the request, etc.

To remove these obstacles the common knowledge is two RFIs. I also recommend you give a time constraint and get more specific. For example, RFI 1 would ask for:

1. Copy of Discipline
2. Copy of 3971s
3. Copy of 3972
4. Copy of Medical Documentation submitted by Grievant
5. Etc

RFI 2 would ask for what is missing with a deadline:

1. SECOND REQUEST FOR THE FOLLOWING INFORMATION
2. Copy of Signed and Completed 3971’s by Grievant
3. Copy of ANY / ALL Medical Documentation submitted by Grievant to the USPS the date range listed in the Discipline
4. PLEASE PROVIDE INFORMATION BY SEPTEMBER 6th IN ORDER FOR UNION TO USE IN GRIEVANCE XX-XXXX.

If you structure the RFI’s like this you back Management into a corner. They had an opportunity to ask for clarification or question the validity or need for information after the first request. The second request drills down to be more specific to remove potential issues and also gives the deadline you need the information to continue with your core Grievance. If you then proceed you have far stronger evidence and also vastly strengthened your Negative / Adverse Inference argument!

First RFI Example

Many years ago I was a newer Steward and Management wasn’t exactly respectful of a twenty-something pushing them on everything. They soon found that they could try to mess with me using my RFI’s. It got so bad we had an emergency Labor Management Meeting with my President. Management wanted to claim I was asking for information that was not relevant, was not accessible, etc.

That was my first Labor Management Meeting in my facility (Bid Cluster had roughly 1400 employees) and needless to say it did not go well for Management. I had an explanation for each item I asked for and what my argument would be in my Grievance. My President laughed. The purpose of that story is your RFI’s can be set up to make Management work hard to prove your case for you – and they hate it.

Here is an example of one such RFI:

Management refused to provide several items and argued relevance over 7, 8, 9, 10, 14, 15, 17, 18 and 19. I had a verbal and in person conversation and explained each line item to Labor Relations:

“Line item 7 is because I have a strong suspicion, based on my investigation, several of these absences have strong mitigating circumstances and some should have been scheduled.

Line item 8 is because I have a strong suspicion, based on my investigation, several important factors for Just Cause were not considered by the Supervisor and if they were this Discipline never would have been issued.

…”

The Second Request

After I explained everything to Management, and reviewed their packet, I submitted my second request. I removed line items that were provided and I included notes for the more pertinent items for clarification. That prevented anyone from claiming that they did not know specifically what I needed or relevance.

You would be surprised to find Management actually completed this request, on time. Every single item I was missing was included in a Denied Information Grievance and also cited as an Adverse / Negative Inference Item.

Management did not settle this Grievance. But we won later in the process at Pre-Arbitration. The Unions arguments were:

1. No Discipline on Record / Progression
2. No Discussion
3. 3971s Not Properly Returned / Recorded / Signed
4. Supporting Medical Documentation not Considered
5. Cited 7 Day was Settled for 1 Year on Record and Fell Off
6. Discipline is Punitive

Chaining Arguments

Adverse / Negative Inference has variable value depending on the strength of the argued violation, if alternate evidence would be available, and the Arbitrator. Due to this I recommend Chaining Arguments.

In the above scenario, I never tipped my hat to Management until the Step 2 Appeal. Even when I gave justification, it was generic. When the Step 2 was finally completed the full picture came to be.

The strongest violation was that the Grievant’s previous 7 Day Suspension was verbally settled by the Grievant and the Previous Supervisor / 204B. No LOW was still on record. My primary evidence was a statement and interview of the previous Supervisor, and a statement from the Grievant.

You structure your arguments like this:

Core Arguments: Discipline is not Corrective, but is Punitive & Progression was Skipped as confirmed by Statements from previous Supervisor and Grievant confirming no Discipline was on record.

Supplemental Arguments: Management refused to allow Union to interview appropriate officials, refused to provide proof of the parties verbal settlement, and refused to provide the original interview notes which contained the Unions and Grievants objections to Management citing a non – existent Seven Day Suspension. The Union asserts this Negative Inference confirms that Management willfully and willingly made every effort to ensure the Grievant received a 14 Day Suspension despite this action violating the Collective Bargaining Agreement.

Negative / Adverse Inference can be a strong enough argument on its own. But, you can create a far stronger argument by finding supporting evidence and using it to paint the picture you would like. In the above example Management had no real excuse or defense except saying, “No it wasn’t intentional!”

Management for Dummies

The final nail in the Denied Information coffin is the fact Management will, on occasion, be less than honest. For example, I have seen Management claim something was exchanged with the Union at Step 2 during Arbitration.

To combat this I adopted the following form:

The above Document I fill out in front of Management (If we physically exchanged documents) or I fill it out and include it in my case file. I submit it with my Step 2 as moving papers. I also cite it as an Exhibit as proof Management failed to provide information.

A number of times I met at Step 1 with a Supervisor and informed them I was missing X, Y and Z documents and that it created several new violations. The Supervisor has more often than not offered the information and settled with me as I preferred once I explained it was too late.

Inversely, I have had a Step 2 where another Labor Relations representative completed the RFI and I raised I was missing things. the LR rep I was meeting with was less than happy and settled how I wanted because I was more than willing to throw the entire department under the bus.

Pulling it Together

If you have a situation where you have Denied Information you should file two Grievances. One concerning the original issue, and the second over Denied Information.

You must cite 15, 17 and 31 in your Original Grievance as well and argue Negative / Adverse Inference. The remedy on Grievance Two should include to sustain the Original Grievance, information by a specific date, and a penalty to the Union due to Denied Information.

You must submit two RFI’s. Space them apart by 5 days – if time permits. If you do an RFI on Day 1 you would do a Second Request on Day 6. If Management provides partial information still submit a Second RFI with more specificity to prevent arguments about relevance.

Catalogue all documentation you receive from Management on a separate form. Offer them to sign it if in person. Cite it in both of your Grievances.

Finally, if possible, use your Adverse / Negative Inference arguments to support your Core and Strongest violations. In some cases the Adverse / Negative Inference argument is strong enough to win. But if not, this argument can prop up your best argument and give Management no way out.