REGULAR ARBITRATION OPINION AND AWARD. In the Matter of the Arbitration ) GRIEVANT : Judy Boyle

Transcription

1 REGULAR ARBITRATION OPINION AND AWARD In the Matter of the Arbitration ) GRIEVANT : Judy Boyle between the ) United States Postal Service ) POST OFFICE : LaGrange,. IN and the ) National Association of Letter ) CASE NO. : J90N-4J -D Carriers, AFL-CIO BEFORE : Clarence R. Deitsch, Arbitrator APPEARANCES : For the U.S. Postal Service : Mr. Gene Mills, Labor Relations Specialist Fort Wayne, Indiana For the Union : Mr. Ernest Haynes, Regional Administrative Assistant, National Association of Letter Carriers, KIM Region PLACE OF HEARING : LaGrange Public Library 203 West Spring Street LaGrange, Indiana DATE OF HEARING : November 2, 1993 Award : GRIEVANCE SUSTAINED/REINSTATEMENT ORDERED November 20, 1993 HCEIVEID UV RONALD BROWN

2 REMOVAL FOR UNACCEPTABLE BEHAVIOR/PERSONAL HABITS, CARRIAGE OF MAIL CONTRARY TO LAW, AND OBSTRUCTION OF CORRESPONDENCE The Issues DEITSCH, Arbitrator--Whether the removal of the Grievant, Judy Boyle, for unacceptable behavior/personal habits, carriage of mail contrary to law, and obstruction of correspondence was for just cause. If not, what should the remedy be? Stipulated Evidence (Joint Exhibits) 1. The instant dispute is properly before the Arbitrator--that is, arbitrable. 2. Joint Exhibit #1 : The National Agreement between the United States Postal Service and the National Association of Letter Carriers, AFL-CIO. 3. Joint Exhibit #2 : The Grievance Chain. 4. Joint Exhibit #3 : The Notice of Proposed Removal, dated May 10, Joint Exhibit #4 : The Letter of Decision on Proposed Removal, dated June 2, Joint Exhibit #5 : Employee and Labor Relations Manual (ELM), Sections 665.2(0), 665.2(q), and Joint Exhibit #6 : Forwarding, Return, and Address Correction Charts. Relevant Contract Provisions Section 1. Principles ARTICLE 16 DISCIPLINE PROCEDURE In the administration of this Article, a basic principle shall be that discipline should be corrective 1

3 in 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. ARTICLE 19 HANDBOOKS AND MANUALS Those parts of all handbooks, manuals and published regulations of the Postal Service, that directly relate to wages, hours or working conditions, as they apply to employees covered by this Agreement, shall contain nothing that conflicts with this Agreement, and shall be continued in effect except that the Employer shall have the right to make changes that are not inconsistent with this Agreement and that are fair, reasonable, and equitable. This includes, but is not limited to, the Postal Service Manual and the F-21 Timekeeper's Instructions. THE EMPLOYEE AND LABOR RELATIONS MANUAL (ELM) Chapter o. Prohibition against carriage of mail contrary to law (18 U.S.C. 1693). q. Prohibition against obstruction of correspondence (18 U.S.C. 1702). 2

4 666 USPS Standards of Conduct Discharge of Duties Employees are expected to discharge their assigned duties conscientiously and effectively Behavior and Personal Habits Employees are expected to conduct themselves during and outside of working hours in a manner which reflects favorably upon the Postal Service. Although it is not the policy of the Postal Service to interfere with the private lives of employees, it does require that postal personnel be honest, reliable, trustworthy, courteous, and of good character and reputation. Employees are expected to maintain satisfactory personal habits so as not to be obnoxious or offensive to other persons or to create unpleasant working conditions. MANAGEMENT OF DELIVERY SERVICES HANDBOOK (M-39 HANDBOOK) 115 DISCIPLINE Basic Principle In the administration of discipline, a basic principle must be that discipline should be corrective in nature, rather than punitive. No employee may be disciplined or discharged except for just cause. The delivery manager must make every effort to correct a situation before resorting to disciplinary measures Using People Effectively Managers can accomplish their mission only through the effective use of people. How successful a manager is in working with people will, to a great measure, determine whether or not the goals of the Postal Service are attained. Getting the job done through people is not an easy task, and certain basic things are required, such as : a. Let the employees know what is expected of him or her b. Know fully if the employee is not attaining expectations ; don't guess -- make certain with documented evidence. 3

5 c. Let the employee explain his or her problem-- listen! If given a chance, the employee will tell you the problem. Draw it out from the employee if needed, but get the whole story Obligation to Employees When problems arise, managers must recognize that they have an obligation to their employees and to the Postal Service to look to themselves, as well as to the employee, to : a. Find out who, what, when, where, and why. b. Make absolutely sure you have all the facts. c. The manager has the responsibility to resolve as many problems as possible before they become grievances. d. If the employee's stand has merit, admit it and correct the situation. You are the manager ; you must make decisions ; don't pass this responsibility on to someone else. CITY DELIVERY CARRIERS HANDBOOK ( M-41 Handbook) 130 DELIVERY AND COLLECTION RULES 131 Delivery on Letter Routes.35 Deliver mail according to the instructions or known desire of the addressee. Otherwise, deliver as addressed if the addressee has not moved. Make inquiry, if necessary, and return the mail to the post office if still in doubt. Background and Facts The Grievant, Judy Boyle, was a Regular City Letter Carrier assigned to Route 2 in the LaGrange, Indiana Post Office at the time that she was issued the Notice of Proposed Removal on May 10, During the process of casing her mail the morning of April 20, 1993, the Grievant came across the National Association 4

6 of Letter Carriers Hoosier State Bulletin, a piece of 3rd class mail, addressed to : J. Hartman President, Branch S. Sherman LaGrange, IN She lined through the addressee ' s name and address and replaced them with own name and address. She then placed the item in the "carrier endorsement" section of "throwback case" as she left the office to deliver her first relay. When Ms. Jacqueline L. Hartman, the clerk doing mark-up mail and also the Grievant's co-worker to whom the item was originally addressed, discovered the Bulletin among other items of mark-up mail, she notified Postmaster John Cochard. After questioning the Grievant concerning the change of name and address on the Bulletin, Postmaster Cochard issued the disputed Notice of Proposed Removal, which was subsequently reviewed and approved by Mr. Ralph Harrison, Postal Operations Manager at Fort Wayne, Indiana. A timely grievance was filed which was processed unresolved through the grievance procedure. The matter is now properly before the Arbitrator for final adjudication. Positions of the Parties The following positions were taken by the Employer and the Union, respectively, in a hearing before the Arbitrator on Tuesday, November 2, 1993 at the LaGrange, Indiana Public Library located at 203 West Spring Street, LaGrange, Indiana. At this hearing, both Parties were afforded a full opportunity to present all relevant evidence and arguments. The record of evidence in this matter was declared closed at hearing's end. 5

7 EMPLOYER The position of the Postal Service is simple and straightforward. On April 20, 1993, the Grievant received a piece of 3rd class mail addressed to co-worker Jackie Hartman at 413 South Sherman, LaGrange, Indiana. It was correctly addressed and should have been cased with the rest of her Route 2 mail for delivery that day. Instead of properly casing and delivering the item, the Grievant crossed through Hartman's name and address and replaced them with her own. She then placed the item in the "throwback case". Her intention was unmistakable : to deny/ deprive the Grievant receipt of this item by routing it to the mark-up area either to notify the mailer not to send future correspondence to Hartman or to be subsequently rerouted to her own address. The Grievant's initial response when questioned by Postmaster Cochard concerning the readdressed letter confirms her intention to deprive the original addressee receipt of the item. Her response as to why she had replaced the original name and address with her own was something to the effect that "Hartman is not a union member and therefore not entitled to it". In addition to Postmaster Cochard, two (2) other employees overheard the response. Other reasons proffered by the Grievant and her representatives since her initial response in order to justify her actions-- namely, that what she did was address correction, that it was done in accordance with directions given concerning address correction at a March service talk, and that it was done in the capacity of Branch 2448 President--are pure fabrication put forward in a desperate attempt to extricate the Grievant from 6

8 an extremely serious situation. The evidence indicates that what the Grievant did was not address correction. No evidence was produced to indicate that address correction for city routes was discussed at the March service talk nor that the Grievant was President of Branch In sum, the only evidence produced indicates deliberate misconduct on the Grievant's part to deprive a postal patron her mail. A thorough investigation followed the incident of April 20, The Union's arguments that the Postal Service failed to fully inform the Grievant as to what was expected of her, failed to give the Grievant an opportunity to explain her problem, and failed to resolve the problem at an early stage are without foundation. The Union's argument that the concurring and reviewing authorities merely "rubberstamped" the initial decision is unsupported by the facts. They do not have reinvent the evidence ; they may rely on the record of evidence. The Grievant's conduct both at the time of the incident and shortly thereafter was dishonest, deceptive, unreliable, and untrustworthy. She carried mail contrary to postal regulations, and, in so doing, obstructed correspondence--all very serious infractions. Hence, the Postal Service requested the Arbitrator to deny the grievance and to sustain the discharge. The Postal Service submitted several arbitration awards in support of its case. These were : Case No. S8N-3U-D2138 AND D2139 (Arbitrator J. Fred Holly, December 5, 1979) ; Case No. C85-4H-D and D31953 (Arbitrator Neil N. Bernstein, July 5, 1982) ; and Case No. CON-4G-D (Arbitrator Alan Walt, December 18, 1992). 7

9 UNION The Union's position is similarly simple and straightforward. What the Grievant stands accused of on April 20, 1993 was nothing more than address correction. She was simply following the instructions given her by Postmaster Cochard during a service talk in March of He had instructed carriers to correct any address that was not one hundred (100) percent correct and place the item with the corrected address in the "throwback case" for processing through the mark-up area in order to notify the mailer of the correct information. Such address correction was undertaken by the LaGrange Post Office to increase revenue. Had the Postal Service conducted the contractually required fair and complete investigation of this matter, that is, had reviewing authorities Walt Hess and Ralph Harrison not simply "rubberstamped" the decision of Postmaster Cochard, the problem would have been resolved before it became a grievance : the discipline would not have been assessed. The discipline is flawed for several other reasons as well. First, as President of Branch 2448, the Grievant was properly positioned to determine that the Bulletin was improperly addressed. Second, the charges are unacceptably broad and misspecified. The second charge, in particular, is nebulous and vague. Presumably, the Grievant stands accused of violating some unspecified law. Yet, no evidence was tendered as to which law or the manner in which the Grievant violated that law. Finally, the Grievant is charged with obstruction of correspondence when, in fact, the Bulletin in question never left the LaGrange Post Office and, indeed, was delivered to the addressee at an earlier 8

10 point in time than if the incident (i.e., address correction) had not taken place. For all of the foregoing reasons the Union requested the Arbitrator to sustain the grievance and to reinstate the Grievant with full back pay and benefits. Discussion It is incumbent upon the Employer to prove the truth of the charges it has brought, namely that the Grievant engaged in unacceptable conduct, carried mail contrary to law, and obstructed correspondence. The quantum of proof customarily required in removal cases such as this is "a preponderance of clear and convincing evidence". This standard will be used to resolve the instant dispute. On the other hand, the Union has challenged the discipline on procedural grounds as well as raising the issue of mitigating/extenuating circumstances. Here, the burden of proof shifts to the Union. It must prove its contentions by a "preponderance of the evidence". The record of evidence taken during the arbitration hearing reveals a Grievant that had become increasingly frustrated because her coworkers did not show the same enthusiasm for union activities that she did. She was an activist ; they were apathetic--not attending meetings nor voting in a scheduled election. In the latter case, the Grievant took the opportunity to elect herself President of Branch 2448 in December of Particularly irritating to the Grievant was the fact that the National Association of Letter Carriers Hoosier State Bulletin continued to be sent to Ms. Jackie L. Hartman as "Pres. Br. 2448", requiring the Grievant, at least on one occasion, to 9

11 borrow the material from an individual whom the Grievant considered to be apathetic as far as Union affairs were concerned. Her frustration got the better of her the morning of April 20, Instead of once again delivering the Bulletin to Mr. Hartman as addressed, she lined through the addressee's name and address and replaced them with her own. Despite various explanations for her action proffered since the time of its occurrence, the truth of the matter is best adjudged from the Grievant's first response at the time that she was first questioned by Postmaster Cochard about the marked-up 3rd class mail. Postmaster Cochard, Jacqueline Hartman, and Sonja Dick all testified that the Grievant made a statement to the effect that Hartman was not a Union member and not entitled to the Bulletin. Her clear intent was to deprive/deny the addressee this specific item and future bulletins by placing, it in mark-up for processing. It is the Arbitrator's opinion that theft was not a motive because, had it been, the Grievant could simply have cased the item with her own personal mail to be delivered on Route 2 that day. This, however, does not change the fact that what the Grievant did was totally out of line and totally unacceptable behavior--despite the fact that it was the product of frustration. The Grievant compounded her mistake by trying to clothe it in the mantle of "address correction"--that she was merely following the instructions of Postmaster Cochard to perform address correction whenever an address was not 100 percent correct in order to increase revenue collection. Although such instructions purportedly were given during a service talk in 10

12 March of 1993, the Union failed to produce any evidence to refute Postmaster Cochard's testimony and that of Ms. Jacqueline Hartman that the service talk in question focused on address correction for rural routes rather than city routes-- other than the testimony of the Grievant that such instructions were given at the service talk in March. Assuming, arguendo, that the March service talk covered address correction for city routes and that Postmaster Cochard did instruct the carriers to "address correct" if the address was not 100 percent correct (facts which were not established by a preponderance of evidence), the Grievant's behavior was still unacceptable. As indicated by the testimonies of Postmaster Cochard, Sonja Dick, Jacqueline Hartman, and Judy Merrifield, the 3rd class Bulletin was 100 percent correctly addressed and should have been delivered as addressed. The addressee had not submitted a Change of Address Form 3575 ; the addressee still lived at the residence in question ; and the street address was valid. The addressee's title is irrelevant to the delivery of mail ; there's normally no way to determine the validity of such titles. As regards the Union's claim that the discipline iss procedurally flawed because the Postal Service did not conduct a complete and fair investigation and thereby "resolve as many problems as possible before they become grievances" (M-39 Handbook), it is totally without merit. There is no requirement imposed upon a manager by the M-39 Handbook to rescind discipline where appropriate in order to avoid a possible grievance generated by that discipline. Such a requirement would preclude 11

13 all discipline. The requirement is simply that the manager gather all the facts and evaluate them in a dispassionate fashion prior to the assessment of discipline should discipline be warranted. The record of evidence indicates that this was done in the case at hand. Similarly, the Union's contention that the reviewing/ concurring authorities failed to conduct an adequate investigation by "rubberstamping" the decision of the issuing supervisor, Postmaster Cochard, and thereby violated Article 15 of the National Agreement is without foundation. As noted above, the record of evidence indicates a fair and complete investigation. There is no contractual requirement that reviewing/concurring authorities, Step 1, Step 2, and Step 3 designees conduct de novo investigations--that they cannot use evidence generated by others at earlier points in the investigation/grievance process. For the reasons noted herein and in the preceding paragraph, the Arbitrator finds no procedural problem traceable to lack of a fair and complete investigation. The investigation taken by the Postal Service was reasonable in nature. With regard to misspecification of charges, this claim of the Union has merit. The first charge, "unacceptable behavior and personal habits" is correctly specified. The Grievant's initial action and subsequent desperate attempts to justify that action constitute unreliable and dishonest behavior. The next two charges, however, are not correct as written. The record of evidence prior to and during the arbitration hearing indicates that the Postal Service intended the second and third charges to 12

14 pertain to violations of regulations and not federal statutes. As presented to the Arbitrator, the charges do not involve criminal violations. Yet, as written, particularly the second charge, they appear to be just that--criminal in nature. If criminal, their validity must be judged against a much stricter standard/ quantum of proof (i.e., "proof beyond a reasonable doubt") than would otherwise be the case--a standard not met by the Service in this case. Viewed as intended, that is, as rules violations and not criminal violations, the second and third charges do have merit. The Grievant did process mail contrary to instruction/rule/ policy. The Grievant also obstructed correspondence by striking the name and address of J. Hartman on the Bulletin and replacing it with her own name and address and then placing the Bulletin in the "throwback case" to (in the best case scenario) be returned to the sender. The fact that the mail was never taken out of the mail stream and that it was actually given to the addressee earlier than would otherwise have been the case--that the Grievant never succeeded in her attempt to deprive the patron of receipt of the Bulletin --does not alter the seriousness of the infraction. Does a would-be bank robber have to succeed in a robbery for a serious infraction to have occurred? The Grievant's intent was obvious from her action and subsequent statement. In summary, what the Grievant did was totally unacceptable ; her infraction was serious. The only question is whether it warrants dismissal. After a careful consideration of all facts and circumstances, the Arbitrator thinks not ; removal would be 13

15 unduly harsh and premature at this juncture. A number of different considerations have combined to produce this conclusion. First and foremost, the second and third charges were misspecified. Second, her action was prompted by frustration and not undertaken for personal gain ; theft was not a motive. Third, several times during the arbitration hearing, Postmaster Cochard made the statement that discipline would have been less severe had the Grievant admitted her mistake early on and had not attempted to justify her offense through deliberate deceit and fabrication--leading the Arbitrator to conclude that this behavior was at least as important as the Grievant's initial misdirection of mail in the determination of the severity of the discipline imposed. Stated differently, this implies that the Grievant's initial misconduct was not as grievous as the Service would have the Arbitrator believe. This being the case, the Arbitrator remains unconvinced that these components of the Grievant's unacceptable conduct taken separately or together, even in light of past discipline, warrant the workplace equivalent of capital punishment. While not condoning the Grievant's deceitful attempt to justify her initial misconduct, it is all too typical of employees looking the spectre of discharge straight in the eye. Other mitigating circumstances considered were the Grievant's relatively long discipline-free period of time just prior to the instant infraction and her veteran status. For all of the reasons discussed in the preceding paragraphs, the Arbitrator concludes that there was not just cause for removal but only for a long-term suspension. 14

16 Award After a careful review and examination of the Parties' stipulations, relevant cited arbitration awards, the evidence, the facts, and the circumstances of this case, the following award is made : 1) The Grievance of Judy Boyle is found to be partially meritorious. The Employer's motion to uphold the Notice of Removal and to dismiss the Grievance is denied. GRIEVANCE SUSTAINED 2) The Postal Service is hereby ordered to reinstate the Grievant upon receipt of this award. Reinstatement does not carry back pay. The Grievant is hereby placed in a probationary status for a period of eighteen (18) months from the time of reinstatement. The Grievant is also put on notice that any discipline issued for cause during this probationary period will result in her immediate removal. 3) The Parties are hereby ordered to compensate the Arbitrator for his fee and expenses in accordance with the applicable provision(s) of the National Agreement. Dated this 20th day of November, 1993 at Muncie, Indiana. larence R. Deitsch Arbitrator 15