REGULAR REGIONAL ARBITRATION PANEL. Discipline. ) Termination

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1 c0i44o( REGULAR REGIONAL ARBITRATION PANEL Discipline Arbitration between UNITED STATES POSTAL SERVICE ) Opinion and Award Kenner, Louisiana ) pertaining to and ) 5lN - 3Q-D NATIONAL ASSOCIATION OF ) Ray Yochim LETTER CARRIERS ) Termination Arbitrator : J. Earl Williams The hearing of the subject matter in at the Post Office in Kenner, Louisiana, on were filed by the parties in due course. arbitration was held March 28, Briefs Appearances For Management : For the Union : Bonnie Raby Wallace Labor Relations Assistant United States Postal Service 701 Loyola Avenue New Orleans, Louisiana Collier M. James Regional Administrative Assistant National Association of Letter Carriers 2 International Plaza Drive, Suite 305 Nashville, Tennessee 37217

2 2 Background By letter dated August 25, 1983, the grievant was issued a notice of removal to be effective.september 30, In relevant part, it stated the following : The reasons for this removal action are : CHARGE : Deviation From Your Route On August 19, 1983, you were assigned to Route 6230 and Vehicle Number On this same date, you requested 90 minutes of overtime which was denied by Supervisor S. Montegut. Instead, you were given 60 minutes of street assistance. On August 19, 1983, at approximately 2 :15 p.m., while on street supervision, I observed your Vehicle parked at 3303 California. This block is on Route When you exited this private residence, I confronted you and inquired why you were inside this residence. You informed me that you delivered this route a long time ago and knew the residents. You also informed me that you had stopped as you were feeling bad and visited the residents. This is not an acceptable reason for deviation from your route. You have violated Parts , , and of the M-41 and are charged accordingly. The following elements of your past record have been taken into consideration in taking this action : 06/07/ 83 - You were issued a letter of warning for unsatisfactory performance. 05/16/83 - You were issued a 7 - day suspension for failure to follow a direct order and disrespect toward a Postal Supervisor.

3 3 A grievance was filed a few days later, and, there being no resolution of the issue, it led to the subject arbitration. Issue Immediately prior to the start of the hearing, the parties agreed to the following statement of the issue : Was there just cause for the termination of the grievant? If not, what is the appropriate remedy? Contentions of Management In terms of the charge, which was listed in the notice of removal, the supervisor indicated that the grievant did not inform him that he was feeling ill before he left for his route, and he did not appear to be ill when he came out of the residence. Also, he reported for duty as scheduled the following day, even though he left ill during the, day and did not return until August 25, The doctor's certificate was not acceptable. In fact, Management feels that the explanation that he was ill from a dog bite, which was sustained on July 29, 1983, has all the earmarks of an excuse fabricated after the fact, since he did not visit a doctor in regard to the dog bite for a period of almost one month. However, the supervisor and the Postmaster both testified that the grievant's deviation from his assigned route and entering the premise unofficially was not the ultimate reason for his

4 4 removal. The overall performance record was considered. Thus, his past disciplinary record, along with the deviation, were the determining factors for the removal notice. In fact, Management testified that corrective efforts, such as removing a letter of warning at Step 2 or rescinding an earlier termination notice, were tried without success. Thus, the determining factor for removal was that the grievant continued to perform below standards, and it was felt that a lesser degree of discipline would not correct the grievant's deficiency. While Management agrees that the letter of warning is under appeal, it contends that the contract does not prohibit the use of that element. Also, it indicates that the letter of warning is not vital to the decision. 1 Finally, Management does not believe that there is a disparity in the grievant's penalty as compared to other employees who deviated. One received a letter of warning and has not deviated again ; another received a discussion, and there has been no further action against him. In fact, it contends that the grievant's disciplinary record does not compare with any of the employees cited by Union witnesses. Thus, given the culmination of the grievant's deficiencies, it does not show disparate treatment. Contentions of the Union The Union believes that there was a concerted plan to remove the grievant. It does not believe the grievant did anything wrong,

5 5 and, even if he had, it insists that the circumstances would not merit any disciplinary action. Yet, it indicates that Management did not investigate the case, there was no discussion with the grievant, there was no attempt to talk with the witnesses at the scene where the grievant used the restroom, and the mitigating circumstance, in the form of the grievant's illness, was overlooked. That all this was purposeful, according to the Union, was proved when the supervisor testified that, "I finally got something to remove the grievant for.". Yet, the Union contends that Mrs. Tyson's testimony should have been convincing. The grievant knocked on her door and asked to use the restroom. She offered him a cold towel, gave him a drink of water and stated in"no uncertain terms that she knew that he was sick. Yet, both the supervisors involved in the subject case testified that, if a carrier had an emergency, they had no problem with his finding a place to take a comfort break. This was an emergency, which was ignored by Management. In the second place, the Union contends that Management tried to drum up charges from the past to supplement its obviously insufficient reason for termination. In fact, the only thing that the Postal Service addressed in this case was performance, and performance is not the charge in the grievant's case. Further, no proof was offered to show where his performance was less than it should have been. In fact, in terms of the past record, the parties

6 6 stipulated at the hearing that a 7-day suspension had been reduced to three days by an expedited arbitration and that the letter of warning was at Step 4. Thus, there is no past record to tie in with the alleged deviation. Finally, the Union contends that, even if the grievant had been guilty of deviation, there was disparate treatment between his termination and what others have received for the same offense. In fact, testimony at the hearing revealed that no employee ever had received more than a letter of warning for deviation from the assigned route. Discussion There are four major problems with Management's contentions and/or actions in the subject case. All of them impact on the removal decision and lead to a quick resolution of the issue. They are as follows : A. Contentions Re the Total Record Management insisted that deviation on the day in question was not the sole reason for the removal action. It indicated that the determining factor was the grievant's continuing to perform below standards. Many general comments were made by the supervisors in question. For example, it was suggested that the grievant made an effort to the best of his ability, but that was not sufficient. There was testimony that he was given additional training without

7 7 success. The corrective efforts of eliminating a letter of warning and proposed removal were mentioned. It was suggested that he was out due to illness a lot. In short, the Postmaster concluded that the dismissal was the culmination of years of deficiencies. However, there are two problems with these contentions. First, the notice of removal does not contain any suggestion that he was removed for excessive absences, unscheduled absences, a history of deviation, or a past record of deficient performance. Only two specific elements of a past record are referenced. Thus, even if Management had documented the general contentions, the Arbitrator would be unable to consider them. Second, even if the general charges had been contained. in the letter of proposed removal and it had been noted that this was the reason for the removal, there was absolutely no documentation of any of the general charges. In short, the Union has a point when it contends that it appears that Management attempted to dredge up charges, after the fact, to support the termination. B. Specific References of Past Record Considered As the notice of removal stated, only two elements of the past record were considered. One was a 7-day suspension for failure to follow a direct order and disrespect toward a supervisor. However, the parties stipulated that this was reduced to three days in arbitration. It was an expedited award, so it was

8 8 not introduced at the hearing. However, it is clearly unrelated to a primary charge of deviation. The letter of warning was related to unsatisfactory performance. It did charge that he overstated the time required to deliver his route. However, there was no charge of deviation. Even if there is a relationship between overstatement of time and deviation, the parties stipulated at the hearing that the letter of warning is in adjudication at Step 4. The Arbitrator made it clear at the hearing that he cannot consider discipline, which is being adjudicated. If some is reduced or eliminated, it has a definite impact on the past record, progressive discipline, etc. For example, in one postal case heard by the Arbitrator, there were three elements of past record which had been considered, and all were in adjudication. Before the award was rendered, all were forwarded to the Arbitrator. All had been overturned completely. Thus, the letter of warning adjudication is significant in the subject case. However, it was not suggested that the decision be held in abeyance until the results of the adjudication were known, and the results have not been forwarded to me. In fact, Management contends that it is not even necessary to consider it. In summary, the general charges could not be considered. In terms of specific references to the past record, all that can be considered is a 3-day suspension for an unrelated matter. It is

9 9 true that it is not necessary to go through all the stages of progressive discipline in conjunction with the final charge, which led to termination. However, there must be an excessively poor record of unrelated violations, which are documented and included in the notice of removal, in order to justify termination. In the subject case, we have only one unrelated violation, and, even there, the penalty was considered to be excessive. While there very well may be a past record of unsatisfactory performance sufficient to justify termination, it was not included in the notice of removal and not documented. Thus, the fact that the only past record to be considered is one unrelated violation is sufficient, standing alone, to overturn the removal action. C. The Deviation Charge Normally, the past record is not considered until the charge leading to removal is proved. At that point, the past record is utilized in the determination of the appropriate penalty. The peculiarities of the subject case caused the Arbitrator to reverse the procedure. Thus, he determined that, even if the grievant is guilty of deviation, the past record, which could be considered, does not justify termination. However, if the grievant is guilty of deviation, a lesser penalty would be in order. Essentially, the grievant is charged with going two blocks off his route and entering,.a private residence. The

10 10 supervisor in question testified that he thinks that he went off the route in order to expand time to agree with a 1-hour overtime request. The grievant testified that he was sick and having severe stomach problems and that this was the home of an elderly lady, whom he had known for a long time. He knew she would be home, and he needed to use the bathroom. He testified that he was in the house for ten minutes. It.is true that the following day, August 20, the grievant mentioned that he had been bitten by a dog on July 29 and that it may have been related. He testified that he had been ill off and on since, but it was not bad until the day in question. He did leave after two hours on the job on the twentieth. He testified that he was still sick and had diarrhea. He remained off until the twenty-fifth, when he returned with a doctor ' snote. That same day he received a notice of removal. Unfortunately, Management continued down the same misguided path. Most of its efforts were expended in regard to charges that the dog bite was fabricated and that the doctor's note was not acceptable, so he was charged with AWOL for the days he was absent. However, whether or not the doctor's note is acceptable is immaterial. The notice of removal charges the grievant with deviation. There is absolutely no suggestion that AWOL, failure to document absences properly, etc., are part of the charges. Consequently, the only question is whether or not the grievant

11 11 purposely deviated. In regard to this charge, the primary question is whether or not the grievant was sick and needed to go to the restroom. Management witnesses testified that, if there was an emergency, it was permissible to go to the nearest and most logical restroom. Yet, the Union made meaningful points when it charged that Management really did not conduct an investigation in regard to this question. There never was a discussion with the grievant in regard to the alleged deviation. It was unrefuted that, when he came out of the house, he told the supervisor that he was ill and had to go to the bathroom. Nothing was said re deviation. There was no contact made with the elderly lady, who residea.at the house where the grievant stopped. The supervisor did call the doctor, but it is obvious that they did not communicate. He testified that he did not understand the terms the doctor used, so the doctor requested that he be called by a postal doctor. It is apparent that a postal doctor did not call. On the other hand, the evidence fully supports the fact that the grievant was ill. He testified to same. It is apparent that he was still ill the following day to the extent of having to leave work. This apparently continued for several more days. Even the doctor visit and note suggest that he probably was ill on the day in question. Finally, Mrs. Tyson came in to testify. She fully corroborated the grievant's story.

12 12 He appeared to be ill and used the bathroom, and she gave him water and a wet cloth. Her testimony was that there was no doubt in her mind but that the grievant was sick. It was clear that no one in the room doubted her word. In summary, whether or not the illness came from a dog bite is immaterial, for the above evidence fully supports the fact that the grievant was sick-on the day in question. Thus, he was justified in going to the nearest and most logical. restroom in this emergency situation. In short, Management did not prove purposeful deviation from his route. D. Disparate Treatment Since the Arbitrator has determined that the grievant is not guilty of the charge, which led to his removal, and there is no supportive documented past record, it is not necessary to discuss the charge of disparate treatment. However, for future reference, it should be pointed out that, even if the charge had been proved and there had been a documented past record to consider, the evident disparate treatment in the subject case would still call for overturning the removal. Union witnesses testified to eight specific cases of deviation in which no more than a letter of warning was assessed. Management witnesses questioned only one of them and corroborated most of them. Included was one instance of deviation to go to the bathroom. However, there was not even a formal discussion of the

13 13 deviation. In another, there was an employee with a terrible record who deviated and was playing video games. Yet, his ultimate discipline was a letter of warning. that In. fact, Management witnesses agreed no one ever before had been terminated for deviation. In general, postal arbitrators would overturn discipline if only one example of disparate treatment was proved (in fact, several were referenced by the Union). Thus, it is abundantly clear that the disparate treatment in the subject case, standing alone, would call for reinstating the grievant with full back pay. Award There was not just cause for the termination of the grievant. He will be offered reinstatertient upon receipt of this award'by Management. He will be made whole for all monies and benefits lost. Earl Williams, Arbitrator Atlanta, Georgia July 16, 1984