REGULAR ARBITRATION PANEL. In the Matter of Arbitration ) Grievant : K. Reilly between ) Post Office : Stamford, CT

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1 REGULAR ARBITRATION PANEL C-1447 I(~o9o In the Matter of Arbitration ) Grievant : K. Reilly between ) Post Office : Stamford, CT United States Postal Service ) Case No : B90N - 4B-D and ) GTS National Association of ) Letter Carriers, AFL-CIO ) Before : GEORGE R. S HEA, Jr. Appearances : For United States Postal Service : T.J. O'Keefe For National Association of Letter Carriers ( Union ) : R. Melsopp Place of Hearing : Stamford, CT Date of Hearing : October 29, 1996 Date of Award: November 21, 1996 AWARD SUMMARY For the reasons more fully set forth in the attached Opinion, the Arbitrator determines that by reason of its failure to comply with Section 16.8 of the Agreement, to issue the grievant, the Service did not have just cause K. Reilly, the Notice of Removal dated October 31, Consequently, the contested Notice of Removal is vacated and the grievant reinstated to his postal employment. in consideration of the procedural basis of this Award, the reinstatement of the grievant to his postal employment is without restitution of the back pay and benefits lost by him by reason of the now vacated Notice of Removal. George R. Shea, Jr.

2 OPINION STATEMENT OF PROCEEDINGS : The National Association of Letter Carriers, AFL-CIO [Union], in accordance with the parties' National Agreement [Agreement], appealed the above captioned matter to arbitration. The undersigned was designated as the Arbitrator to hear and decide the matter. The Arbitrator held a hearing on and at the previously referred to date and location. The parties' representatives appeared. The Arbitrator provided the parties with a full and fair opportunity to be heard, to present evidence andargument and to examine and cross examine witnesses. The Service called M_ Dolan and D.J. Millett as its witnesses. The Union called K..Reilly, the grievant,_as it witness. BACKGROUND : 1. The United States Postal Service [Service], issued the grievant, K. Reilly, a Notice of Removal dated October 31, 1995 [NOR]. The Notice of Removal was based on the charge "Discarding Deliverable Mail Matter / Delay or Obstruction of Mails". The NOR was signed by Dave Duddie as the "Disciplining Supervisor". The Notice set forth the factual allegations upon which the Service relied to establish the charge and indicated that the charged activity was violative of Sections and of the M-41 Handbook, an Article 19 Handbook. Additionally, the NOR indicated that the charged activity was a violation of Part 436 of the Employee and Labor Relations Manual [ELM]- The NOR did not indicate that the grievant had received any discipline prior to the NOR or.that the Servicehad relied.upon any such discipline if it did exist. ISSUE : The parties agreed to the following statement of the issue before the Arbitrator: - Did the Service have just cause to issue the grievant, K. Reilly, the Notice of Removal dated October 31, 1995? If 894N-43-D / DTS

3 not, what shall be the appropriate remedy? FACTS : The events regarding this matter were described in the varying testimony of the parties' witnesses and in the documentary evidence offered by the parties. Based upon his review of that evidence, including his personal observation- of the witnesses during their testimony, the Arbitrator determines the preponderance of that evidence supports the following findings of fact At times relevant to this matter, the grievant had been employed by the Service as a Full-Time Regular Letter Carrier for approximately eighteen months. He was assigned to the Barry Place Station of the Stamford, CT Post Office [Post Office]. His assignment included the casing and delivery of mail on Route 244. He performed these duties on Saturday July 29, August 12, and August 19, On July 31, 1995, the Manager of the Post Office, M. Dolan, found what he considered an inordinate amount of "marriage mail cards and third class mail addressed to Route 244 in the No Obvious Value Mail [NOVM] container- Material in the container would have been discarded and destroyed in the normal course of operation at the Post Office. The mail discovered on July 31 was available for delivery on Saturday, July 29, Dolan notified the Postal Inspection Service of his finding on August 1, 1995 and requested an investigation. On Monday, August 14, 1995, additional mail from Route 244 was found in the NOW container. This mail was available for delivery on Saturday, August 12, On Monday, August 21, 1995, additional mail from Route 244 was found in the NOVM container. This mail was available for delivery on Saturday, August 19, The grievant was interviewed by Postal Inspector Millett as part of the latter's investigation of the matter on August 24, The grievant did not request legal or -union representation during the interview. The grievant provided the B94N-4 3- D / (T

4 Postal Inspector with a written statement, which in parts, states the following : "I was questioned by Postal Inspectors on how I was handling my bulk mail. Bulk rate mail which I handled, and threw away was shown to me." "Inspectors showed my (sic) a bundle. of marriage mail cards, which the Bahamas cruise advertisement the bundle should have been delivered on a Saturday. On this particular Saturday this bundle was not delivered because I was running very late and didn't have-time to case them. The Streets were Fairfield Ave., Fairfield, CT, West Main St., Spruce St., Ann St., Hazel St., and High St. These cards were not cased but thrown into the waste mail. These cards were- 80% deliverable, which was about 40% of my route."... "I was also shown Genevesse sale, Stamford Guide mail and 2 other marriage mail card bundles. All mail I went through while I was casing mail and I decided not to deliver because the mail usually ends up on the floor or it just builds up in the mail box. the sales papers and advertisement was for the last month. Of this mail 10 to 40% could have delivered." "The mail was not delivered because I got into a bad habit of deciding to put only one ad in the mailbox because when I delivered multiple ads I would only bring them back, unclaimed, in 3 or 4 days to discard them. This was only for the last couple of weeks which this happened."..."(j-#2, exhibit 1D) 4. D. Duddie, the supervisor who signed the NOR as the Discipline Supervisor, made a statement to the Postal Inspector which reads as follows : "Mark Dolan, Station Manager, showed me Marriage Mail Cards and blue booklets for Genovese found in the Recycling bin, collected on Saturday 7/29/95. Carrier Kevin. Reilly - Regular Carrier for. route 244 was on duty Saturday, he cased flats in office for route and cased and delivered his_ route. Marriage mail cards were excessive, and seemed 294N- 48-D / UT

5 to be in delivery sequence. Blue booklets also seemed to be excessive and ran in order. There were no markings on pieces to identify them as vacant deliveries. Waste mail was collected by Jack MacDonald - -VOMA, I don't know if he collected these pieces, or if someone placed them directly into the bin. " (J-#2, exhibit 2) 5. The grievant was interviewed by Dolan subsequent to being interviewed by the Postal Inspectors. Following his receipt of the Postal Inspector's Investigative Memorandum, Dolan again interviewed the grievant. The record does not contain sufficient evidence to support a finding that Duddie was present at either of these interviews of the grievant. Dolan testified that he issued the NOR to the grievant on October 31, 1995 on the basis of his independent investigation of the matter. POSITIONS OF THE PARTIES : National Association of Letter C=riers, AFL-CIO [Union] The Union contended that the Service did not have just cause to issue the grievant the contested NOR ; in that, (a) the NOR was inconsistent with the grievant's prior positive work and discipline records ; and (b) the NOR was based upon an unproven charge. Based upon these factual assertions and contractual contentions, the Union requested the Arbitrator to sustain the grievance, vacate the contested NOR, reinstate the grievant to his postal employment, award the grievant restitution of all wages and benefits lost by him as a result of the NOR and award the grievant interest on the wages lost by him for the period of the loss. United States Postal Service [ Service] The Service maintained that it had just cause to issue the grievant the contested NOR ; in that, it was issued based upon the proven and admitted charges set forth in the NOR and (b) the NOR was consistent with the seriousness of the charged offense. Based upon these factual assertions and contractual contentions, the Service requested the Arbitrator- deny the grievance. 894N-4B-D / GTS

6 DISCUSSION ; In an arbitral matter involving the Service's discipline of an employee, the Service must bear the burden of establishing that the discipline was imposed for just cause. Briefly stated, the just cause standard requires the Service to demonstrate that its disciplinary action was imposed after an objective pre-discipline investigation resulting in proof of the employee's infraction of a clearly communicated, consistently applied, work related rule. The standard further requires the Service to demonstrate that the disciplinary consequences of the rule's infraction were communicated to the employee and that the administeredd discipline was consistent with the charged offense and the employee's past employment record. Finally, the Service must establish that its discipline was imposed in accordance with the procedural requirements of the parties' National Agreement. Section 16.8 of the Agreement, in parts relevant to this matter, provides the following : "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 installationn head or designee." Section 15.4.A.6. of the Agreement, in parts relevant to this matter, provides the following : "All decisions of an arbitrator will be final and binding. All decisions of arbitrators shall be limited to the terms and provisions of the Agreement, and in no event may the terms and provisions of this Agreement be altered, amended, or modified by an arbitrator." The Service has promulgated rules setting forth an employee's obligation with regard to his/her handling and delivery of the mail. Section of the M-41 Handbook provides the following : "Provide reliable and efficient service. Federal statutes provide penalties for persons who knowingly or willfully obstruct or retard the mail. The statutes do not afford employees immunity from arrest for violations of law." B94N. 4B-D / OTS

7 Section of the M-41 Handbook, in parts relevant to this matter, provides the following : "Do not remove stamps from mail or throw away or improperly dispose of mail." The Arbitrator determines that the Service by its publication of these rules in Article 19 Handbooks and Manuals provided the grievant with general notice of his employment obligations regarding his handling and delivery of mail. The Arbitrator further determines that the- Service provided the grievant with specific notifications of these employment obligations when it gave the grievant written pre-employment notifications which provided that employees could not detain, secrete, open, destroy, delay or remove mail matter or contents thereof and that such actions.by an employee could subject him/her to discipline.(sr-#l) Significant arbitral authority exists which supports the premise that the parties may rely upon both direct and circumstantial evidence to support their respective contentions in arbitration, including matters involving the removal of an employee from his/her employment. To have probative worth, the circumstantial evidence offeredmust show, with a fair degree of probability, the facts for which it is offered as proof. The probative value of the circumstantial evidence is diminished, when two or more inferences may be drawn from the evidence.. Such alternative inferences must have some evidentiary foundation and may not be based solely upon speculation or conjecture. - In the instant matter, the evidentiary record establishes that the mail in-question was mail addressed to locations on the route to which the grievant was assigned and on which he worked on the days in question. Similarly, the record establishes that the mail was deliverable and was found in a location which employees knew, or should have known, was for NOVM designated for destruction. In the absence of any direct or circumstantial evidence that the mail was handled or placed in that location by a person other than the grievant and in consideration of the grievant's statements of admissions to the Postal Inspector, albeit recanted by the grievant 894N - 48-D / GT

8 at the arbitration hearing, the Arbitrator determines that the Service has established by the preponderance of the evidence that the grievant did improperly discard deliverable mail for which he was responsible. The Service is correct in its contention that the this action by the grievvant constitutes a serious infraction of the Service's rules regarding an employee's handling of mail. Based upon the testimony of Dolan and a full review of the evidentiary record in this, matter, the Arbitrator determines that the pre-discipline investigation, the decision to discipline the grievant and the decision as to the severity of the discipline to be imposed were made by Dolan and not Duddie, the supervisor who signed the NOR as the Disciplining Supervisor. While Section 16-8 of the Agreement does not define who must be the Disciplining Supervisor, the Arbitrator determines that the Section does require that the Concurring Official be a person other than the person initiating, imposing and implementing the discipline. The evidentiary record does not establish that the discipline imposed by Dolan- received the concurrence of a Concurring Official, as required by Section 16.8 of the Agreement. The Service's failure to comply with the mandates of Section 16.8 when issuing the contested discipline is fatal to its claim that it had just cause to issue the discipline to the grievant. - Based upon the findings and reasoning set forth in this Opinion, the Arbitrator makes the attached Award_ B94N-4B-D / OTS