USPS-NALC ARBITRATION PANEL SOUTHERN REGION WILLIAM J. LeWINTER, ARBITRATOR

Transcription

1 USPS-NALC ARBITRATION PANEL SOUTHERN REGION WILLIAM J. LeWINTER, ARBITRATOR IN THE MATTER OF ARBITRAT BETWEEN 1 UNITED STATES POSTAL SERVICE i (Miami, Florida)! Case Nos. S*N-3W-D 4915 S4N-3W-D AND-!Record Closed :December 21, 1986!Arbitrator File No NATIONAL ASSOCIATION OF LETTER RIERS, (Tropical Branch 1071) CJ F= I IV I C P4 flisiid A(4 trn Representing the Employer : Daniel Smith, Labor Relations Assistant Peter Marcous, Labor Relations Representative Representing the Union : Matthew Rose, President Tropical Branch 1071, NALC Preliminary Statement On 1985, the Union filed a written grievance on behalf of Robert R. Reed, at No. SIN-3W-D 4915, eging the Employer violated the parties' colle gaining agreement by issuing g ant a Notice of Proposed Removal without, just cause, issuing discipline that was punitive and rendering disparate treatment. Another grievance was filed on behalf of the same employee at No. S4N-3W- D 8429, alleging the employer violated the said agreement by the previously stated intent to discharge and issuing grievant a Notice of Decision without just cause and other allegations similar to that of the first grievance. T he two grievances, arising out of the same factual matters, were combined for hearing. The parties, being

2 ;.enable to resolve the matter, assigned it to arbitration. Hearing was held before William J. lewinter, Panel Arbitrator, at Miami, Florida, on November 26, 1995, at which time the parties were accorded full opportunity to present witnesses for direct and cross examination and such other evidence as was deemed pertinent to the proceedings. At the hearing, the parties stipulated that both grievances were properly before the arbitrator. The record was closed on December 21, 1995, at which time all briefs filed by any of the parties were received. From the evidence adduced at the hearing, the arbitrator makes the following : Findings of Fact As o January 2, grievant was a c at the 3ratigny Branch Pos t Office. He had been hired August 28, His past record demonstrates a letter of Warning, Seven-day Suspension and 14 day Suspension, all for failure t.o meet attendance requirements, the latest being November ', On August 13, 1934, grievant was admitted to the Veterans' Administration hospital for alcoholism. According -to hiss, testimony, and other evidence presented, he has not been drinking since and has participated in the VA dependency program. During October and November, 1984 grievant was treated for problems with his prostate gland. On January , grievant was working in the office because his special service drivers license had been suspended. While sorting flats, grievant was seated on a stool with his legs stretched out, resting on a lower ledge of the case to form a working table on his legs. In this position,

3 he was sitting behind Carrier McCool whom he was assisting. Carrier Mr-Cool was standing at the case sorting mail. Supervisor Stuart Mills came up to grievant and asked him if he thought he was "on vacation or at a country club". Grievant responded to let him alone and do his work. Super- Mills stated he would show grievant the proper method to sort the fiats and went to look for U-carts to form a table at which he could stand and work. Mr. Mills never stated to grievant that his position was unsafe or against postal regulations. When he returned, the supervisor made additional sarstic remarks concerning grievant's position. Grievant ery emotional and accused the supervisor of trying to cost him his job and told the supervisor to leave him alone or he would hurt the supervisor. Grievant stated he could not work under such circumstances and began to look for a Form 3971 to leave- Acting Manager Violet Murphy viewed part of the situation upon returning from her lunch break. When grievant decided to leave, she did not call police. She was told by grievant that he would hurt Mr. Mills. Grievant was speaking to Mills by addressing her. Grievant had previously been referred to the Employee Assistance Program (formerly PAR). Ms. Murphy checked with ce and found that grievant had not participated oyer's program. Ms. Murphy then requested persion to issue a discharge based on her claim that grievant was unstable and dangerous to have in the vicinity with -4-

4 other workers. Concurrence in the request for permission to issue a issal was signed by Jose Rivera, Manager of Stations and Branches. Mr. Rivera testified that he made no independent nvestigation and did not speak with the grievant before concurring in the discharge. He stated his function was take the events told him by the supervisors and converse with his superior. On January 2 4, 1985, Ms. Murphy issued a Notice of Proposed Removal alleging, in pertinent part : On January 2, 1985, at approximately 12 :00 P.M., you became - angry after supervisor Stuart Mills instructed you to stand up and do your job. Mr. Mills i nstructed you to stand up due to the fact you had been sitting down on a stool with your feet propped up on the hold tray at route You then told Mr. Mills in a very loud manner, that he better leave you alone. You also told Mr. Mills that he was trying to cause you to lose your job. You then told me that he was trying to cause you to lose your job. You then told me in a loud voice that I had better tell Mr. Mills to leave you alone or you would have to hurt him. You stated further that you were going home as you couldn't work under the conditions, and also stated that you were going to hurt Mr. Mills. At this time, you walked over to the stand -up desk and looked for a PS Form After you located a pad of PS form 3971' s, you turned towards Mr. Mills, pointed your finger at him and stated that i f he did not leave you alone or i f he cost you your job, you were going to hurt him. Conduct of this nature cannot be tolerated. You are charged with threatening a postal supervisor with bodily harm in the performance of his duties. Thereafter, the Notice recites the three previous disciplines relating to absence. The first grievance, No. SiN- 3W-D 4915 was filed alleging : Grievant was issued a Notice of Proposed Removal dated Jan. 24, 1985, that charged him with threatening a supervisor with bodily harm in the

5 performance of his duties. The Union and the grievant contend that this action is totally unwarranted and punitive rather than corrective in nature. Management has failed to comply with Sections 115 of them39 Handbook and 374 of the Employee and Labor Relations Manual. The Union also contends disparate treatment is evident as similarly situated employees were not treated in a similar manner under similar circumstances. The actions of the supervisor involved were both intimidating and threatening and instigated a verbal confrontation. There was no just cause for the issue of this action. The Union objects to the referral of prior elements not related to the charges cited. On March 11, 1985,. W. P. Stokes, Manager of Delivery and Collection issued a Notice of Decision - Proposed Removal to grievant stating, in part : By notice of January 24, 1985, you were informed of a proposal to remove you from the Postal Service. I have given full consideration to your verbal response of February 28, 1985, and all other evidence of record. I find, however, that the charge is fully supported by the evidence and warrants your removal. You failed to provide me with any reasons or support to mitigate this action. It has been long upheld that the threatening of a supervisor directly affects the efficiency of the service adversely. Your threats were made in the course of the supervisor's duties, while on postal premises, and in hearing distance of other employees. Such acts cannot be tolerated. Additionally, although the past elements are for matters not relative to the issue in this removal, the long history of discipline indicates an unsatisfactory work history with the Agency. It must be noted that your actions as outlined in the proposed action warrant removal for a first-time offense. This removal action will be effective March 18, In making this decision, I have considered the elements of past record. The second grievance, No. S4N- 3W-D 8429, was filed alleging matters similar to the previous grievance. The Union submitted several instances of discipline rendered to other employees for threats made to supervisors -6-

6 with penalties ranging from Letter of Warning to 14 day Suspensi on. Contract Provisions ARTICLE 16 DISCIPLINE PROCEDURE Section 1. Statement of Principle In the administration of this Article, a basic principle shall be that discipline should be corrective i n nature, rather than punitive. No employee may be disciplined or discharged except for just cause such 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 grievance- arbitration procedure provided for in this Agreement, which could result in reinstatement and restitution, including back pay- Suspensions of More Th Discharge In the case of suspensions a+ more than fourteen (14) days, or of discharge, any employee shall, unless otherwise provided herein, be entitled to an advance written notice of the charges against him/her and shall remain either an the job or on the clock at the option of the employer for a period of thirty (30) days. Thereafter, the employee shall remain on the rolls ( non-pay status) until the disposition of the case has been had either by settlement with the Union or through exhaustion of the grievance-arbitration procedure. A preference eligible who chooses to appeal a suspension of more than fourteen ( 14) days or his discharge to the Merit System Protection Board (MSPB ) rather than through the grievance-arbitration procedure shall remain on the rolls (non-pay status ) until disposition of the case has been had either by settlement or through exhaustion of his MSPB appeal. When there is reasonable cause to believe an employee is guilty ' of a crime for which a sentence of imprisonment can be imposed, the employer is not required to give the employee the full thirty (30) days' advance written notice in a -7-

7 discharge action, but shall give such lesser number of days advance written notice as under the circumstances is reasonable and can be justified. The employee is immediately removed from a pay status at the end of the notice period. Section 8. Review of Discipline A In no case may a supervisor impose suspension or discharge upon an employee unless the proposed disciplinary action by the supervisor has first been reviewed and concurred in by the installation head or designee. *** D i sc ussion The Union raises a basic question of concurrence. As I have had occasion to state in United States Postal Service, Tampa, Florida and HALE, Branch 599, Case Nos. SIN-33W-D and SIN-3W-D (1985) : Concurrence by a higher official is mandatory before the Employer can issue any suspension or before it can issue a discharge. The language is as follows, in Article 16 : Section 8. Review of Discipline A In no case may a supervisor impose suspension or discharge upon an employee unless the proposed disciplinary action by the supervisor has first been reviewed and concurred in by the installation head or designee. (Emphasis supplied.) *** Concurrence is not a mere " rubber-stamp" action by upper level supervision. It requires a degree of separate action by the concurring superiorr to "review" the discipline... (pp. 15, 16) In that prior case, there was no concurrence demonstrated. In this case, thesupervisor had Area Manager sign as the concurring officer. Mr. Rivera testified that he made -8-

8 no attempt to investigate the case and did not speak with the grievant or obtain his viewpoint on the affair. He relied upon what his supervisors told him and what he saw in the records. To that point, Mr. Rivera did not incorrectly state the concept of concurrence. The requirement to "review" does not mean that at each level of supervision a separate invesation of all the facts must be undertaken. The requiremeat is for an upper level supervisor to check the records, isfy himself there is sufficient cause in the record for di.sciplin to issue and that the level of disciplinary penis proper in accord with the record. If he i s wrong, or if the record or lower level vestigation is improper, grievance procedure is present to correct the situation. The concurrence requirement is to "review(ed)". That an affirmat act. Signature without that affirmative ould have no meaning. The obvious intent is for the iewing official to have meaningful input in this level of discipline. Accordingly, Mr. Rivera was required to make his own decision. Mr. Rivera testified further, however, that not only was he not to investigate but, to him, "review" meant to take the matter to his superior. This is not the case. The purpose of concurrence is for the concurring officer to take action. He must make a decision based upon his knowledge and determine if the requested' discipline should or should issue. His signature on the request for discipline demonstrates that he as made that decision. Mr. Rivera's -9-

9 testimony demonstrates that no such decision was made in this case.. He discussed this matter with another supervisory official who he was unable to identify. His testimony leaves no doubt that the concurrence was not his but some other's. It is not improper for the concurring official to seek advice, but the final decision, the concurrence, must be his own decision. The Employer argues that Mr. Rivera ' s testimony was sufficient to determine concurrence, especially since he was olved from the beginning. It was Mr. Rivera Ms. Murphy called when the events were taking place, and he suggested having grievant removed from the workplace. The fact that the concurring official may have some knowledge of the early facts of the case does not eliminate his obligation, as a concurring offi i to make the review and take the necessary actions required to accomplish concurrence. Mr. Rivera hat he believed his function was to call his superior. He was not sure whom he called. He left no doubt mind that it was to be the decision of someone else at would result in his signature as the concurring ofe, and without concurrence, no valid discipline can That was not in accord with the collective bargaining agreement. Accordingly, his act was not a valid concur- issue at this level. Under those circumstances, no concurrence took place within the meaning of the contract. The concurring officer may not evade the obligation of making the decision. Other- -10-

10 wise, the requirement_ of concurrence has no viable meaning. Mr. Rivera's testimony is tantamount to stating that his nature is his concurrence, regardless of his activity. actl "rubber stamp" decisions. Without actually considering and making a decision, the " reviewed and concurred in" requirement has no meaning. Without a proper concurrence, the disciplines must The Notice of Proposed Discharge must be concurred in. The Letter of Decision is a result of the Proposed Discharge. Without the Proposed Discharge, the Letter of Decision has no meaning. Even if the Letter of Decision is a review of the matter and the making of a decision by upper level supervision, that activity cannot correct the concurrence required --for theproposed removal. The concurrence must occur before the rendering of discipline, not after. The Employer may object that this is a "technicality", and in truth, i t is. However, concurrence is as much a part of the collective bargaining agreement as the right to remove. The arbitrator may not side -step it because he worries that the merits might have validity as to the issuing of discipline. My personal likes, dislikes or feelings cannot permit me to evade the responsibility to uphold the agreement. The facts seem to show that grievant is an unstable i ndividual. Management has the ability to require him to demonstrate his fitness for duty under other clauses of the agreement. I have no right, once finding the issuance of discipline to be fatally defective, to enter the merits and render a decision am as bound by the contract as the par- -11-

11 in relation to the discipline, itself. Accordingly. I must rule that the grievances be sustained, and grievant be reinstated. The discipline being defective, I must order back pay. In addition to back pay, the Union has requested interest. As I also stated in the Tampa case, previously cited : Since the basis of issuance of both disciplinary actions were faulty, the grievant must be reinstated with full contract rights with back pay. The Union. also demands interest under the decision at the National Level by Arbitrator Benjamin Aaron at Case No. HIN-5-FD In that Award, Arbitrator Aaron states, in conclusion : On the basis of my interpretation of Article 16 and Section of the ELM, I conclude that under the National Agreement arbitrator' s have discretionary authority to grant or to refuse interest on back-pay awards when sustaining disciplinary grievances. The regional arbitrators are bound by the National Awards. The Aaron Award authorizes the ordering of interest. Whenever an arbitrator utilizes his discretionary powers, those powers must be exercised within accepted bounds of labor relation concepts. The grant or denial of interest is not at the whim of the arbitrator but at his discretion, an entirely different thing. An analogy may be made to cases wherein the arbitrator finds a grievant guilty of a disciplinable offense but must mitigate the penalty the Employer has issued. Mitigation is also not ordered in accord with the arbitrator's personal feelings or desires. It is ordered only after the arbitrator has found the Employer to have abused its right to determine the degree of discipline. In assessing the amount of discipline to be rendered, the arbitrator should utilize the maximum amount he would sustain, not what he would issue had he been the supervisor involved. There are many elements taken into account. The grievant's equitable position in his employment status, the acts committed, the Employer's activity in the case, etc. -12-

12 In this case, the facts, though not material in a discussion of the merits for reasons set forth above, demonstrate that grievant has taken actions which could reasonably demonstrate that he has placed himself in the position where he would be disciplined. I do not render a decision on the merits. I must, however, excercise my discretion as the claim for interest. There may have been some provocation, but he was addressed on the work floor by his supervisor and acted in a manner not ordinarily expected of a junior employee. For this reason, I do not believe interest is warranted in this case. As to the back pay award, there are many questions which the parties did not address, awaiting the decision on the merits. Accordingly, the arbitrator will retain jurisdiction solely over the question of remedy. In the event the parties are unable to agree concerning these matters, the arbitrator will hold a hearing thereon, at the request of either party hereto.. AWAFt0 The grievances are sustained. `Grievant shall be reinstated with back pay but without interest. The arbitrator retains jurisdiction solely over the question of remedy. The parties are directed to. discuss the remedy in this case. In the event they are unable to agree, the arbitrator will hold a hearing on remedy at the request of either party hereto. Respectfully submitted, int Arbit