BETWEEN ANALYSIS AND AWARD UNITED STATES POSTAL SERVICE Carlton J. Snow AND ) Arbitrator. accordance with a collective bargaining agreement effective

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1 IN THE MATTER OF ARBITRATION BETWEEN ANALYSIS AND AWARD UNITED STATES POSTAL SERVICE Carlton J. Snow AND ) Arbitrator NATIONAL ASSOCIATION OF LETTER) CARRIERS ) (Case No. W1N-5H-D 27023) ) (Lamandia Grievance) ) I. INTRODUCTION This matter came for hearing before the arbitrator in accordance with a collective bargaining agreement effective from July 21, 1981 through July 20, A hearing occurred on December 11, 1984 in the Main Post Office located in Modesto, California. Ms. Lois Ellis, Superintendent of Support Services, represented the United States Post Office. Mr. Dale Hart, Director of Education, represented the California State Association of Letter Carriers. The hearing proceeded in an orderly manner. There-was a full opportunity for the parties to submit evidence, to examine and cross -examine witnesses and to argue the matter. -Al-17-witnesses testified under oath. The arbitrator tape-recorded the proceeding as an extension of his personal notes. The advocates fully and fairly represented their respective parties. The parties stipulated at the hearing that there were no objections to the substantive or procedural arbitrability of ;.: ;, '14R

2 the dispute. They authorized the arbitrator to retain jurisdiction for a period of sixty days after an award had been issued in the matter. The parties chose to submit posthearing briefs in the matter, and the arbitrator officially closed the hearing on February 12 after receiving the final brief. II. STATEMENT OF THE ISSUE The parties stipulated at the hearing that the issue before the arbitrator is as follows : Was the removal of the grievant, a full time.carrier at the Modesto Post'Office,for just cause? If not, what is the appropriate remedy? 11 III. RELEVANT CONTRACTUAL PROVISIONS ARTICLE 3 - MANAGEMENT RIGHTS B. To hire, promote, transfer, assign, and retain employees in positions within the Postal Service and to suspend, demote, discharge, or take other' disciplinary action against such employees ; ARTICLE 16 - Section 1. DISCIPLINE PROCEDURE Principles 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 2

3 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. Any such discipline. or discharge shall be subject to the grievancearbitration procedure provided for in this Agreement, which could result in reinstatement and restitution, including back pay. IV. STATEMENT OF FACTS The grievant, an employe of ten years, has challenged the decision of management to remove him as a result of an incident involving a small child on his route as well as an evaluation of his past record. Until July of 1984, the grievant had driven a route designated as Route Na 5107 and had experienced several problems with small children impeding his delivery of mail. The parties agreed that it was not uncommon for small children to greet a mail carrier as he or she arrived at a residence, and in their excitement, to attempt to receive the mail. The grievant had found that the practice disrupted his daily deliveries and allegedly had spoken to parents on several occasions in an effort to prevent the interference of children. He allegedly brought the problem to the attention of his station manager who refused to take any action because management planned to change the grievant to City Route 5125 in the near future. In fact, management transferred the grievant to Route No on July 7, At least part of the grievant's 3

4 route was mounted, meaning that he delivered mail to each address while remaining in his Postal Service vehicle as contrasted with walking a loop from his vehicle and back again. On July 7, 1984, the grievant delivered Route No without incident. He encountered no one at 604 or 608 Sunset Street. On July 10, 1984, the grievant allegedly confronted two young girls at 604 and 608 Sunset Street, at which time he, according to the Employer, spoke to them in a way that caused them to become distressed and to runinto their respective homes. The parties have disagreed vigorously regarding what occurred on the day in question, and the arbitrator will scrutinize the facts more closely later in the report. When the parties were unable to resolve their differences,the matter proceeded to arbitration. V. POSITION OF THE PARTIES A. The Employer : It is the position of the Employer that testimony given by Messrs. Fikse and Anderson regarding events of July 10, 1984 do not constitute hearsay evidence and must be accepted by the arbitrator as fact. Messrs. Fikse and Anderson allegedly were parties to conversations with Mr. Branch, Mrs. Branch, and Sheila Branch,and in those conversations the Branch family related their version of what happened on July 4

5 10, Those facts, according to the Employer, constituted just cause for the grievant's removal. B. The Union : It is the position of the Union that testimony presented by Messrs. Fikse and Anderson regarding the events of July 10, constituted unreliable hearsay evidence and should not be used. as the basis of an arbitrator's decision. According to the Union, there was no direct evidence regarding the incident of July 10, apart from the grievant ' s account of the confrontation. It is the belief of the Union that facts as set forth by the grievant did not provide just cause for his removal. It also is the contention of the Union that management did not adequately investigate events of July 10, 1984 as required by Section of the Employee and Labor Relations Manual.

6 VI. ANALYSIS A. The Factual Context of the Dispute : The grievant began delivering Route No on July 7, After two days off, the grievant returned to his route on July 10. He arrived at 604 Sunset at approximately noon on July 10. As the grievant approached the mailbox at 604 Sunset, there was no one near it. - Driving a right-handed jeep, the,grievant reached across the seat to his left in order to get the mail for the address. Turning back to the mailbox, he found a young girl had moved into the space between the jeep and the mailbox, blocking the mailbox. The grievant testified that he asked the young girl to move and repeated the request. She did. not do so, and the grievant, who is hard of hearing, assumed the child had not.heard what he said. Accordingly, he testified that he raised the volume of his voice and repeated his request a third time. Without comment, the young girl stepped aside ; and he placed the mail in the box. The grievant stated that, as he began to close the mailbox door, the young girl placed her arm in the box'in order to retrieve the mail, preventing the door from closing.._-the grievant, then, removed the child's hand from the box and closed the door. As he drove away, the grievant testified thathe made a comment to the young girl to the effect that she should leave the mailbox alone. He stated at the hearing that he saw no injury at all to the girl's hand or arm from the contact he had made with her, and testimony from Mr. Fikse and 6

7 Mr. Anderson corroborated his testimony. The grievant indicated that he was concerned not only with the fact that the young girl not be opening the mailbox on this particular occasion, but also with preventing problems he had experienced in the past with young children tampering with the mail. After completing his delivery at 604 Sunset, the grievant proceeded to the next residence, 608 Sunset. He testified that substantially the same incident occurred there. As he prepared to place the mail in the mailbox, a young girl placed herself between the box and his jeep. He asked her to move at least twice before he raised the volume of his voice and repeated his request. The child eventually moved, and the grievant delivered the mail. Sometime later that afternoon, Mr. Fikse received a telephone.call from the Main Post Office informing him that a customer on route No had complained of a postal employe's conduct. Mr. Fikse drove to 604-Sunset and spoke with Mrs. Branch, the mother of the child who had been asked by the grievant to move away from the mailbox.. On the completion of his interview with the mother, Mr. Fikse returned to the Westside Station and sent a substitute driver to complete the grievant ' s route while instructing the grievant to return to the station. The two men discussed the incident at the station, and the grievant contended that Mr. Fikse ' s understanding of the incident was not correct. The grievant maintained that he had raised his voice but not yelled at the young girl and had only pushed or touched her hand and had not handled her 7

8 roughly. Beginning to sense the seriousness of the incident, the grievant asked Mr. Fikse to transfer him to a mail handling slot where he would not be required-to deal with the public. This was the first such incident with which Mr. Fikse had had to deal, and he decided it was appropriate to place the grievant on immediate administrative leave. On July 12, 1984, management terminated the grievant, citing the incident on July 10 as well as the grievant' s past record. Mr. Fikse testified that he realized it was common for mail carriers to be confronted with small children while driving or walking a route, but he decided to terminate the grievant in this case because, according to statements-given to him by the Branch family, the grievant could have handled the situation more profegsionally. Approximately one and a half to two weeks after the incident of July 10, the Employer sent Messrs. Fikse and Anderson. to 604 Sunset in an effort to gather more information regarding the incident of July 10. Messrs. Fikse and Anderson testified that they spoke with Mr. Branch and-the child but failed to.inquire regarding what the grievant allegedly had said to the child prior to touching her arm. The investigators-also failed to question anyone at 608 Sunset Street. Based on this understanding of. the facts and the grievant's past record, Mr. Anderson terminated the grievant. The parties stipulated at the arbitration hearing that carriers in Modesto have taken steps to keep individuals away from mailboxes.,. 8

9 B. The Nature of an Arbitration Hearing : People view events differently. From such different perspectives arise conflict. In the United States, labor.---arbitrators weigh such differences and determine whose perspective prevails in the conflict. Although a form of problem solving, it is adversarial in nature. As such, evidence which the parties submit to the arbitrator must be verifiable and testable. There must be more than allegations, assumptions and opinions. In cases of termination, a tradition has grown up in labor arbitration of expecting the employer to assume the burden of going forward. It is the belief of arbitrators that the employer has in its possessign information which will explain management ' s decision to remove an employe,and at least a prima facie case should be made to support its action. 4 The-quantum of proof to be submitted has varied from case to case, but the burden of justifying the initial decision to terminate an employe has rested with the employer. In order to carry its burden, the expectation is that the employer will produce witnesses who have had a firsthand' opportunity to'observe the facts, and, indeed,have firsthand knowledge of the incident. An arbitrator seeks to understand what personal = involvement a witness has had with a particular incident. It is commonly said that strict. rules of evidence do not apply in arbitration, and hearsay testimony may well be admitted-into an arbitration hearing. But the weight to be accorded such evidence is the critical issue. Hearsay evidence routinely 9

10 is admitted "for what it is worth." Customarily, arbitrators will decide a case based on the reliability of the evidence in light of all the surrounding circumstances. Hearsay evidence usually is not considered to be sound evidence. C. The Nature of Hearsay Evidence : Hearsay evidence usually is excluded in a court of law on the ground that a trier of fact is not in a position to assess the accuracy of the hearsay statement. As a consequence, the weight to be assigned to the matter asserted as truth in the out of court statement is slight. In other words, hearsay evidence is not reliable, in part, because the trier of factis unable to assess the accuracy of hearsay testimony.. It can not be assessed because the statement made outside of the hearing room and introduced by someone else in the hearing room cannot be tested for its accuracy. The common law defines hearsay testimony as testimony given in a hearing regarding a statement made outside of the hearing by someone other than the witness. The witness,.then, repeats-the, statement at the arbitration hearing to prove the truth of the facts contained in the statement. The point is that the hearsay statement rests its.value on the credibility of the person who made the comment outside of the hearing room. For example, assume that John gave the following testimony at the arbitration hearing. He stated, " I know Jane 10

11 received an injury at the mailbox. I know she received an injury because Ted told me so." John has offered hearsay testimony. He has made a statement ( I know Jane received an injury ) about something that happened to someone other than himself outside the hearing room (Jane), and John has offered his testimony at the arbitration hearing to prove the truth of the matter asserted (that Jane received an injury). Hearsay evidence generally receives little or no weight in a decision making process. There are solid commonsensical reasons for this result. There are sound bas for giving hearsay evidence little or no weight. These reasons are deeply rooted in our American system of j ustice and have a heritage almost four hundred years old. The main reason for not placing much belief in hearsay testimony a to cross -examine the is that it cannot be tested. There is no opportunity originator of the statement made outside the hearing room. As the eminent Chancellor Kent stated almost two centuries ago : Hearsay testimony is from the very nature of it attended with doubts and difficulties, and it. cannot clear them up. A person who relates a hearsay is not obliged to enter into any particulars, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities ; --- he entrenches himself in the simple assertion ` that he was told so, and leaves the burden entirely on his dead or absent author. (See, Coleman v. Southwick, 9 John. 50 (N.Y. 1812). A key distinction between the Anglo-American system of justice and that of many Eastern Bloc countries is that in the United States an opportunity is given to test the accuracy of what a person has alleged. When John asserts that Jane received an 11

12 injury at the mailbox and knows that to be true because Ted told him so, there is a need to test Ted's knowledge. There is a need to know how Ted reached his conclusion. John might, with complete accuracy, reported what Ted told him about Jane's injury, but his information is not based on firsthand observation. It is evidence of personal observation that can be tested on cross-examination. Ted (if he saw the injury occur ) or Jane ( who sustained the injury) needs to be present at the hearing if the trier of fact is to be persuaded that Jane, indeed, sustained an injury at the mailbox. There are other less weighty reasons for being reluctant to rely on hearsay evidence. They are not nearly as important as lack of opportunity for cross -examination, but they merit some mention. Continuing the hypothetical example according to which John " knows " of Jane's injury because Ted told him about it, it is obvious that Ted made his statement outside of the hearing while not under oath. Administering the oath is more than a ceremonial ritual. It places a witness on notice regarding the societal and even criminal sanctions for perjury. Nor would an arbitrator have an opportunity to observe Ted when he made his statement to John regarding Jane's injury ajthe mailbox. While there are disputes regarding the usefulness of demeanor evidence, it on occasion can be an invaluable source of knowledge for the trier of fact. Another reason against placing much faith in hearsay testimony is the fact that the individual reporting to the arbitrator the statement that had been made outside of the hearing 12

13 may report inaccurately. The inaccurate report may be the result of inadvertence. It may result from malice. There, however, is no opportunity to test the accuracy of the report in the absence of the individual who originated the statement being reported to the arbitrator. in our hypothetical example, Ted might well have intended to say to John that he did not see Jane sustain an injury at the mailbox, but he inadvertently might have dropped the negative or spoke it so softly that John did not hear it. All these latter reasons, however, have little consequence when weighed against the lack of an opportunity for cross -examination. As early as 1668, there is evidence that a court rejected hearsay testimony because there was no oppor-. tunity for cross-examination of the absent declarant whose out of court statement had been reported by the witness at the hearing. (See, 2 Rolle's ABR 679 (1668)). Bentham has described the opportunity for cross-examination in a hearing as "security for the correctness and completeness of testimony." ( See, 5 Wigmore, Evidence 1367 ( 3rd ed. 1940)). Without the opportunity to cross-examine an individual who personally observed an incident, there is no opportunity-to test the perception of the witness. It is recognized that various exceptions to the hearsay rule have arisen over the years. Hearsay evidence has a wide range of reliability, and it will be received and used in appropriate circumstances. For example, admissions of the opposing party might well be received as an exception to the 13

14 hearsay rule. Likewise, business records or official written statements or declarations made against interest might be received as exceptions to the hearsay rule. The exceptions, however, have not provided a basis for ignoring the general rule regarding hearsay testimony in this particular case. D. Principles Applied to the Facts : In this case, the testimony of Messrs. Fikse and Anderson recounted the statements of the Branch family regarding events of July 10, The testimony of Messrs. Fikse and Anderson constituted hearsay evidence. The statements of the Branch family had been. made outside the hearing room. The Employer introduced those statements of the out of court declarants because no member of the Branch family appeared and testified at the arbitration hearing. The point is that the Employer presented statements of the Branch family in an effort to prove management ' s version of the events of July 10, Management introduced statements of Messrs Fikse and Anderson to prove the truth of the matter asserted in their testimony, namely, to show thaw grievant yelled at and roughly treated the young child in the Branch family. There was no opportunity to cross- examine any member of the Branch family. Statements they made to the postal investigators had not been given under oath. Nor did the arbitrator have an opportunity to observe their demeanor. 14

15 Likewise, there was no opportunity to have them test the accuracy of their statements as transmitted by Messrs. Fikse and Anderson. This statement in no way impugns the integrity of. the investigators, for they may have transmitted the Branchs ' statements with complete accuracy. But the Branchs themselves could have inadvertently misstated facts to Messrs. Fikse and Anderson, and there was no opportunity to test their perception at the arbitration hearing. Hence, it was not reasonable to credit the hearsay testimony. Accusations made against the grievant are serious. The Employer has an obligation to prevent the type of conduct allegedly committed by the grievant. At the same time, a decision as consequential as a'termination cannot be based on hearsay evidence of the sort submitted here. The Employer argued that it was the obligation of the Union to call the Branch family to testify at the arbitration hearing. This contention is without merit. That burden rested with the Employer. It was the Employer that asserted the accuracy of allegations made by the Branch family against the grievant. The Employer bore the burden of substantiating its allegation that the grievant acted improperly at 604 Sunset. By not producing the Branch family at the arbitration -Iwiii4ng, the Employer failed to submit'credible evidence regarding its version of the events of July 10, The best evidence that could have been presented as proof of management 's statement of facts regarding July 10 was testimony from those individuals who were present when the events 15

16 occurred. The Employer failed to present those witnesses, and the burden of going forward with such testimony cannot now be shifted to the Union. The grievant denied any wrongdoing at 604 Sunset on July 10, and there was no credible evidence to rebut his version of the facts. By failing to prove the events of the precipitating incident, the Employer has failed to set forth justification for terminating the grievant. As a consequence of management ' s heavy reliance on defective hearsay testimony, the arbitrator is left primarily with the grievant ' s testimony. Based on his statement of the incident, just cause did not exist for his termination. Absent reliance on hearsay testimony, the arbitrator is left without any facts to warrant discipline against the grievant. The grievant's unrebutted testimony described conduct on his part which was reasonable and arguably restrained under the circumstances. It was unrebutted that it has not been uncommon in the.area for children to confront mail carriers while they are delivering their routes. The grievant had discussed a similar incident with Mr. Fikse prior to his termination.-'1t as unrebutted that the Employer chose not to conduct an investigation and certainly did not sanction the employe for his conduct - in that earlier incident. Additionally, the grievant was credible in his testimony. that it required more than one request in order to achieve a response from the young child. Mr. Fikse, himself, testified 16

17 that he was aware of the grievant's hearing problem, a problem that may have been exacerbated by the noise of the jeep motor on the day in question. The Employer has given the arbitrator no basis for discounting the grievant's version of the events on July 10, Management terminated the grievant based not only on his past record but also on the events of July 10, There was no indication that his past record alone provided the, basis for-the termination, and the absence of a valid precipitating incident must cause the grievance to be sustained. k 17

18 AWARD Having carefully considered all evidence submitted by the parties concerning this matter, the arbitrator concludes that the Employer did not have just cause for removing the grievant. He shall be reinstated with full back pay. minus interim earnings) and all other employment benefits lost as a result of the contractual violation. The arbitrator shall retain jurisdiction of this matter for sixty days from the date of the report in order to resolve any problems result-' ing from the remedy in the award. It is so ordered and awarded. Re$petfully submitt W) Carlton J. Sno Professor of Law, and Executive Director, Center for Dispute Resolution Date : a_/, ;~-Z~<, 18