In Douglas v. Veterans Administration, 5 M.S.P.B. 313, 5 M.S.P.R. 280, (Apr 10, 1981), the Merit System Protection Board recognized twelve factors to be considered in determining the appropriateness of discipline.  These factors have been adopted in administrative and court decisions.  Every steward should consider the Douglas factors whenever a grievance is analyzed.  These factors are not to be construed as the only possible analytical factors, merely those considered to be the most relevant.  The Douglas Factors include the following:

1. 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;

2. the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;

3. the employee's past disciplinary record(The Supreme Court has held that the MSPB, when determining the reasonableness of a penalty imposed upon an employee, could independently review prior disciplinary actions which were still the subject of pending grievance procedures. U.S. Postal Service v. Gregory, 122 S.Ct. 431 (2001));

4. the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;

5. 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;

6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;

7. consistency of the penalty with any applicable agency table of penalties;

8. the notoriety of the offense or its impact upon the reputation of the agency;

9. the clarity with which the employee was on notice of any rules that where violated in committing the offense, or had been warned about the conduct in question;

10. potential for the employee's rehabilitation;

11. 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

12. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

          If management is unable to address these universally accepted factors, then, more likely than not, the grievance will fail.  This is the Zen assault.  It is an intuitive and reasonable defense for grievances when the appropriate factors are used in written or verbal arguments.