ARBITRATION IN THE MATTER OF APPEARANCES. Peter Marcoux Labor Relations Specialist. Matthew Rose Local Union President

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1 ARBITRATION C# Q /A/3 Q IN THE MATTER OF United States Postal Service, ) Employer, and ) Nos. S1N-3WD-5862 National Association of ) S1N-3WD-5863 Letter Carriers, and ) Miami, FL Branch 1071, ) Union, Patrick Hardin Arbitrator Herbert Kleinman, Grievant. ) For the Postal Service : For the Union : APPEARANCES Peter Marcoux Labor Relations Specialist Matthew Rose Local Union President William E. Burroughs Local Union Vice-President HEARING This matter was heard by the arbitrator on September 1, 1982, at Miami, Florida. The parties appeared as shown above and were afforded full opportunity to present evidence and argument. At the conclusion of the hearing the parties agreed to submit posthearing briefs. The case was taken under advisement by the arbitrator on October 4, 1982, when the arbitrator received the briefs of the parties.

2 ISSUE PRESENTED Was the emergency suspension of the grievant appropriate under Article 16, section 7, and wa s the removal of the grievant for just cause under Article 16, Section 5, of the National Agreement? POSITION OF THE POSTAL SERVICE On January 7, 1982, the grievant secreted a recording device on his person and recorded a work-related conversation between himself and his supervisor, Mr. Rodriguez, without disclosing to Rodriguez that a recording was being made. When the grievant's conduct became known to management, he was suspended and removed. The suspension and removal were fully warranted under the agreement because the conduct of the grievant is criminal under Title 18 of the United States Code and a violation of Postal Regulations. POSITION OF THE UNION Mr. Kleinman recorded the conversation between himself and his supervisor, because he was being harassed and threatened and needed corroboration of that fact to protect his legitimate job interests. The recording of the conversation was not criminal, under federal law, and the violation of postal regulations, if any, was excusable under the circumstances. RELEVANT CONTRACT PROVISIONS dispute. Article 16 of the National Agreement is relevant to this

3 FACTS The facts are not in dispute. The grievant Herbert Kleinman was, until his discharge, a letter carrier employed by the Postal Service at its facility at Coral Gables, Florida. On January 7, 1982, he concealed a recording device on his person and recorded a work-related, on-duty conversation with his supervisor. When this action became known to management, Kleinman was suspended and discharged. The letters of suspension and removal are identical. Each states in pertinent part : On January 7, 1982, you and I had a private conversation in my office. On January 14, 1982, Mr. De Costa, the shop steward from the NALC at my unit, approached me and stated he wanted to file a grievance on your behalf. He then proceeded to produce a letter which was almost verbatim of our private conversation. On that same date, the EEO Investigator assigned to the Miami Installation came to interview me and other supervisors in reference to a complaint filed by you. During the course of my conversation with the investigator, she stated that she had net with you at the General Mail Facility previously. During that meeting you had informed her that you had taped conversations with other supervisors, as well as myself. You even went to the extent of showing the Investigator one of your tapes. You further stated, "That is not all." You then proceeded to remove your shirt at which time you revealed a hidden instrument which was strapped to your arm which you, yourself, identified as a recording device. You had never requested nor received permission to record any of the conversations you had taped. Your actions, as cited above, are in direct violation of Postal regulations. These actions cannot be condoned or tolerated under any circumstances. You are hereby charged with conduct unbecoming a Postal employee. ANALYSIS AND CONCLUSION 1. The Merits of the Grievance. Contrary to the contentions of the Postal Service, Kleinman did not engage in any criminal conduct by recording his conversation -3-

4 with his supervisor. It is well settled in American law that any party to a face-to-face conversation may lawfully record the conversation in secret. The most famous practitioner of this l scurrilous, but legal, craft was, of course, Richard Nixon. The text of 18 U.S.C ( Mgt. Ex. 7 ) is in perfect accord. Whether or not Kleinman was "acting under color of law" - and it is all, but certain that he was not - the statute provides that the recording was not " unlawful under this chapter" because Kleinman "was a party to the communication " 18 U.S.C ( 2)(c), (d). The conclusion that Mr. Kleinman ' s conduct was lawful is critical to the disposition of this case because Mr. Rodriguez, who requested the discipline of the grievant, made the request in the belief that Kleinman had engaged in criminal acts that violated his - Rodriguez ' s - "civil and constitutional rights." ( Tr. 50). Mr. Rodriguez testified that he requested the emergency suspension because of Kleinman ' s "criminal act" and that he never warned or cautioned Kleinman that there is a postal regulation dealing with interception of communications because he saw no need to discuss "the work performance of an employee.... who had done a criminal act" (Tr. 92). The importance to Mr. Rodriguez of his belief that Kleinman acted illegally is also suggested by the letters of suspension and removal. Neither letter refers to any element of past record, even though it is apparent from the record in this case that Mr. Kleinman ' s work history has been less than exemplary. The letters are consistent, that is to say, with Mr. Rodriguez ' s belief that Kleinman ' s recording of the conversation was so grievous an offense -4-

5 that nothing else required consideration. In the same vein, I note finally that Rodriguez was himself unaware of the Postal Service rule concerning interception o communications, E&LR Man , until Kleinman's assumedly illegal act caused Rodriguez to consult the manual. Supervisor Johnson testified to being similarly unaware. Kleinman acted lawfully and Rodriguez's decision to request discipline - both suspension and removal - was grounded in an erroneous belief that Kleinman acted unlawfully. That erroneous belief was apparently shared by all of Mr. Kleinman's supervisors. (TR , 107). To this extent the basis for the discipline was badly flawed. There remains the question whether Kleinman's surreptitious recording, though legal, nevertheless violated a Postal Service regulation of which Kleinman was, or should have been, aware. This question can be disposed of on the basis that, so far as this record shows, management never informed the grievant that the surreptitious recording of a conversation with a supervisor was forbidden. It sufficies to recall that none of the grievant's supervisors knew of any Postal Service rule on the subject. Indeed, the only prior incident of surreptitious recording ever referred to at the hearing was an incident that management had condoned. Thus, assuming that the E&LR manual does forbid what Kleinman did, there is no evidence that he had ever been so instructed, or otherwise should have known. If the Postal Service wishes to punish its employees for lawful conduct, recording conversations in which they participate, then the Postal Service must take steps that will -5-

6 ensure that its employees are informed of the rule. This record reveals no such notice to Kleinman or to the employees at large. In any event ; it is far from self-evident that the E&LR manual forbids what Kleinman did : Section provides "During the course of activities related to postal employment.. ' no postal employee will record, monitor or otherwise intercept the oral... communications of any other person through the use of any device....unless all parties involved in the communication consent to such interception" (Mgt. Ex. 5). Section provides that various terms in the Section, including "oral communication" and "intercept" shall "have the meaning used in" Title 18 U.S.C., ch The inference is strong that Section of the E&LR manual is to be construed consistently with chapter 119 of Title 18 of the Code, unless a contrary result is clearly required by the text of the Section. To repeat, under the Criminal Code, Title 18, Kleinman's conduct is expressly declared to be legal. Thus the Postal Service faces a heavy burden when it asserts that the E&LR manual forbid actions that are not forbidden by the Criminal Code. It is unnecessary to say whether the Service could have met such a burden in this case. In either event, this grievance must be allowed. The. supervisor who decided to impose discipline acted from a fundamental misconception that Kleinman's actions were illegal. Thus, even if the E&LR manual can be read as prohibiting Kleinman's conduct - as to which there is an unanswered question - neither Kleinman nor any other actor in these distressing -6-

7 events knew it at the time Kleinman acted. It is an elementary principle that an employee may not be disciplined for breaking a rule of which he was justifiably ignorant. 2. A Procedural Dispute. The parties are in dispute over the cost of the Union's copy of a transcript of the hearing. The Postal Service requested the presence of a court reporter at the hearing, and ordered a transcript. There is no evidence before the arbitrator that the Postal Service agreed at any time to pay the cost of a copy of the transcript for the Union. At the hearing Mr. Rose, the representative o the Union, directed the reporter to prepare and deliver a transcript to the Union. Mr. Rose also stated his belief,.and contention, that the Postal Service should pay the cost of the Union's copy. That contention has been renewed in the Union's letter transmitting its post-hearing brief. The power of the arbitrator to resolve this dispute, as an incident to his power to conduct a complete and orderly hearing, seems to be uncontested. In the exercise of my power to control the conduct..of the hearing, I will direct that the Union pay for the copy of the transcript that Mr. Rose ordered from the reporter. The general rule in industrial arbitration in America is adopted from litigation in the courts : each party bears its own costs. The Postal Service did not, within the hearing of the arbitrator, agree to provide a copy of the transcript to the Union, and Mr. Rose could not make the Postal Service the Union's debtor simply by declaring that it was so. -7-

8 I reiterate that my decision in this respect is a narrow one based on my power to conduct the hearing. 'I do not decide, for example, that management could refuse to make available to the Union a copy of a transcript that management had purchased and received for its own use. Nor do I decide that the Agreement between the parties does, or does not, entitle the Union to its own copy of the transcript at management's expense whenever management orders a transcript. That issue was not placed before the arbitrator, and could not have been, because it involves an interpretation question. I decide only that, in this case, Postal Service management did not agree to pay the cost of the transcript copy ordered by the Union. Absent such agreement, the Union should pay the cost of the copy it requested and pursue such remedies as it may have, under the contract or at law, for reimbursement. AWARD 1. The grievance is sustained. The suspension of-the grievant was not appropriate and the removal of the grievant was not for just cause within the meaning of Article 16. The grievant will be restored to his former position and made whole. 2. The Postal Service did not in the hearing of the arbitrator agree to pay the cost of a transcript copy for the Union. The Union shall promptly pay the reporter for the cost of the transcript copy that it ordered, but without prejudice to the right of the Union to assert any otherwise valid and timely claim that the Postal Service is required by law or by the National Agreement, or -8-

9 any local Agreement, to reimburse the Union for the cost of. such transcript. Knoxville, Tennessee November 8, 1982 Patrick Hardin Arbitrator