C 305_. In the matter of the arbitration. between

Transcription

1 C 305_ In the matter of the arbitration between UNITED STATES POSTAL SERVICE and NATIONAL ASSOCIATION OF LETTER r : CARRIERS, AFL-CIO Re : Grievance No.W1N-5G-D 8563 Grievant : Jose Martinez Hearing : October 27, 1983 Thousand Oaks, CA Arbitrator : George E. Bowles File No. W iq J: r: n r. r. APPEARANCES EMPLOYER Russ Davenport, Labor Relations Assistant C. J. Haign, Manager Customer Service UNION Thomas H. Young, Jr., Regional Administrative Assistant Jon D. Gaunce, Branch President Jose,F. Martinez, Grievant

2 - Issue 1. Was the revocation of the SF-46, U.S. government motor vehicle operator identification,of the Gr.ievant on September 30, 1982, for just cause? 2. Was the Notice of Removal for working in an unsafe manner" given the Grievant on September 3, 1982, for just cause? Cited Provisions M-52 Fleet Management Handbook provides : Revocation and suspension of SF For Unsafe Driving An employee's SF 46 may be revoked or suspended when his on duty record shows that he is an unsafe driver. When a revocation, suspension, or reissuance of an employee's SF 46 is under consideration, only his on duty record will be considered in making a final determination. An employee's SF 46 will automatically be revoked or suspended concurrently with any revocation or suspension of his States driver's license, and restored upon reinstatement. In the event such revocation or suspension of the State driver's license is with the condition that the employee may operate a vehicle for employment purpose, the SF 46 will not be automatically revoked. See Article 29, National Agreement..63 In Case of Accident The employee's driving privilege shall be reviewed at the time of an accident (other than stopped or parked vehicle.' accidents) by his supervisor and/or other official in charge. The supervisor will make every effort to determine--by tele-. phone contact or personal interview--the condition of the employee (shock, fatigue, or other related physical condition the seriousness of the unsafe driving practice which resulted in the accident, and the condition of the Postal vehicle involved.' Where the supervisor has reason to believe that the public or the employee's safety is at stake, he will suspend the employee s driving privilege and cover the remaining part of the route with auxiliary help. As soon as possible thereafter, a full review of the accident will be made, and the employee's SF 46 and his driving privilege shall be reinstated or suspended as warranted.

3 .64 Special Cases As a minimum, supervisors and/or other officials in charge, will consider the revocation or suspension of an employee's driving permit (SF 46) when the on duty driving record indicates : A. A driver has two at fault accidents within a 12-month period. B. A driver has been convicted by civil authorities of moving traffic violations more than once in a 12-month period. C. A driver continues to ignore post office driving regu-.s lations after being individually warned. D. A driver fails to observe safety rules and regulations, or in cases where retaining the employee on duty may result in damage to USPS proper, loss of mail or funds, or where the employee may be injurious of himself or others..65 State License A driver must inform his supervisor immediately of the revocation or suspension of his State driver's license. The USPS may require the driver to produce his State license at any time, and may verify the license's continuing validity with State authorities at any time. Essential Facts The actions against the Grievant, Jose Martinez, resulted from a claimed incidentt on September 23, 1982, at the residence of the Thomas L. Griffins, at 1251 Calle Las Casas, in Thousand Oaks, where a complaint was first made. The oral complaint was repeated and verified. in Mr. Griffin's letter of September 29, 1982, which said in part : "...In the year that we have been in our home, your carrier or carriers have driven over and broken my sprinkler heads. and crushed planting at least five times. I have marked the planting edge with white pipes but this does not seem to help the driver..1 would appreciate an immediate stop to this careless driving."

4 No one witnessed the claimed incident of September 23, Upon interview, Mrs. Griffin explained that the problem had occurred before and that she felt it was a mail carrier. Mr. Griffin in his interview on September 24 stated that he was "absolutely positiv e it had happened the 23rd at about 4 p.m." In the investigation that was undertaken, John J. Nickelson, went to the address, which was on a cul-de-sac, for ascertaining if there had been any damage. to the sprinkler heads as a result of the claimed incident involving the carrier running over the curb. In presence of the owner he looked at and physically checked the sprinkler head, and he neither saw or felt any damage to the sprinkler head. The owner agreed. This occurred in the last week of September. Catherine Sinai, Supervisor, Delivery & Collections, who had been trained in investigations headed the on-the-scene inquiry. Using a rolling tape, measurements were taken. These showed a twenty-one inch mark on the customer's lawn by a tire and a distance of nine feet eight inches from the mailbox to the point where the vehicle left the pavement. The tire width was measured as six inches. There was.a drop of one to one and a half inches from the pavement to the lawn. The Griffins had placed PVC markers, and if struck, the marker or markers were erect at the time of the investigation. On September 24 scrapings were taken from the vehicle that the Grievant had driven on September 23. Catherine Sinai testified before the Arbitrator that the white plastic scrapings found on the vehicle matched the plastic posts and that this finding, -3-

5 plus observations at the scene, influenced her decision to recommend the actions taken against the Grievant. The white plastic shavings were found on the U bolt which holds the springs of the Jeep vehicle, some four to six inches from the tire. Buster Bellow corroborated the testimony of Catherine Sinai in these particulars, and also observed that the tire used was about five inches wide on a hard surface and would show a larger print on wet ground. The Grievant at all times, before the Arbitrator, denied that he had driven on the lawn of the Griffins on September 23. On direct and cross-examination, he also testified that his flats do not swing, and that his attention has not been diverted by the mail moving or swinging as he drove. He specifically testified that when delivering he put his vehicle in park and mcved the mail from left to right and had no difficulty reaching the mail box or boxes on the cul-de-sac. So far as the handling of the mail in the vehicle he said that he "never had to mess with the mail". He drove this route once a week and had done so four to five months. Other drivers drove the route five days a week. Considerable testimony was taken and exhibits offered with respect to the driving record of the Grievant. His record showed.a violation of unnecessarily backing his postal vehicle at the corner of Pleasant Way and Live Oak on March 26, 1982, jeopardizing the vehicle and himself needlessly. In addition, it was noted in a letter communication of September 30, 1982, that the following elements were considered in taking action :

6 1) September 15, Disciplinary Letter of Warning. Failure to Follow Instructions. 2) January 21, 1982 Suspension. Working in an Unsafe Manner. 3) September 2, 1981 Suspension. Working in an Unsafe Manner. He received a warning letter, on September 11, 1982, for placing a perfectly addressed and completely deliverable piece of mail in the waste mail tub.. The remedial training record showed :.- 9/10,11/80 Orientation & Defensive Driving Course 1/28/81 Remedial Training & Defensive Driving Course 9/10/81 Remedial Training & Defensive Driving Course J. Carson Moore, Regional Labor Relations Representative, : in denying the grievance filed following in the. Employer actions noted in part : "...As the documentation on record in this case clearly discloses, the employee has demonstrated an inability to perform his duties in a safe manner and for such reason his removal from Postal Service employment is warranted. Based upon the foregoing and in the absence of any mitigating circumstances to the contrary, the grievance is denied." On October 22, 1982, the Grievant was offered the position of part-time, flexible Distribution Clerk, in the Thousand Oaks Office effective November 13, He was advised that if he did not accept the offer he would be removed from the Postal Service effective that date : On November 2, 1982, the Grievant by letter declined the work assignment in the Clerk Craft, "pending the outcome of grievances on the removal of my SF 46 and your proposal to remove me from the Postal Service". In his letter he also charged :

7 "...Also as you know I have filed a discrimination complaint against the Thousand Post Office thru the EEO Process. I believe that the Thousand Oaks Post Office has discriminated against me because of my national origin (Mexican-American). I believe that the action taken against me was biased and will be overturned." Dis cussion This case, as many discipline cases, turns necessarily upon a close examination of the evidence presented before the Arbitrator. At the outset, the Arbitrator makes a definitive ruling that there is no basis whatsoever in the assertion of the Grievant that he was discriminated against because of his Mexican- American origin. Too, he was present throughout the proceedings before the Arbitrator, and both in the prior grievance processing, and before the Arbitrator, had the benefit of Union representation. The evidence is overwhelming that someone on September 23, 1982, drove onto the lawn of the Griffin residence and that either at that time or at some other time someone drove his vehicle or her vehicle close enough to strike one of the plastic posts. There was a gouge in the pipe, as inspected by Catherine Sinai, and there were pieces of plastic pipe on the U-bolt. The threads, as. it was testified, were similar so far as plastic material to the pipe itself._ Too, the posts were clearly marked ; indeed, the Griffins had placed the posts there in order to guard their sprinkling system, and the posts were readily visible. Indisputably, whoever struck the post or posts did so negligently.

8 It may be said without any difficulty that I completely understand why the Grievant_was the prime suspect. He was the driver on September 23, 1982, on that route and serviced that exact location. His driving record was and is - a poor one. He has had prior violations, and prior disciplinary action,-and three times has had the benefit of remedial instruction. Supervision, understandably, would look to him as the likely person in whatever happened on September 23, He would logically be regarded as one that would have likely driven upon the Griffin property, not because of his national origin but because of his prior driving record. Circumstantial evidence should not be lightly regarded or glibly ignored. Circumstantial evidence, if there be a logical, continuous chain of circumstances, may be more persuasive than eyewitness testimony, since eyewitnesses can make mistakes of observation and of recall. But the chain of circumstances must be consistent and complete. In a removal case, I believe that the evidence must be clear and compelling. Some Arbitrators have used the harsh standard of the criminal law, proof beyond a reasonable doubt. However, the more formal rules of evidence are not applicable or governing in labor arbitration proceedings, and the truth-seeking process should not and is not highly formalistic. Rather, in arbitration one attempts to ask : where does the truth finally lie? It is entirely possible that the Grievant drove upon the lawn of the Griffins on September 23, 1982, and caused the claimed damage or at least drove his vehicle against a plastic pipe which

9 was placed there by the Griffins as a visible reminder. it proof by clear and compelling evidence? But was Considerable reliance is placed by the Employer, representatives on the scrapings, and the similarity to the plastic pipe material. But the vehicle not only had been driven by the Grievant on September 23, but another driver on September 24 before the scrapings were removed from the bolt and compared to the material of the pipe. Even more critically, perhaps, the Grievant drove this route only once a week, so there was an opportunity for other drivers' to cause the damage or to make the contact. There remains completely unanswered all the prior' incidents claimed by the Griffins, at least four prior incidents as Mr. Griffin's letter charges. What employee or employees, if any, were involved? So far as what happened on September 23, 1982, there were no eyewitnesses yet the Griffins were certain that the incursion had occurred on September 23. But without an eyewitness or eyewitnesses, what proof is there that if something did. occur on September 23, it was not the mistake or negligence of a neighbor or someone looking for a number. A fact-finder or Arbitrator should not go beyond the evidence to look for doubts, and doubts must be based upon reason and common sense not conjecture and speculation. But I make the points, so far as specific evidence, to show that while it is possible or even likely that the Grievant did that which was charged, against him on September 23, it is not at all certain that he.did so. The Employer has offered good faith, plausible explana-, tion, but has not established by clear and compelling evidence that the Grievant did that which was charged against him on September 23, I -8-

10 At stake here is not only the principle of just : cause under the Agreement, a concept of great importance to the parties, but also the integrity of the Agreement itself and the good faith and stability of the collective bargaining relationship in the ultimate. I cannot make a finding of fault or guilt against the defendant on the basis of a guesstimate, however possible the claim of guilt against the defendant may be and however clear the good faith of the Employer.. Accordingly, both the revocation of SF 46 and the Notice of Removal are set aside. The Grievant shall be made whole and. shall receive lost wages and other related benefits provided.however, deducted from such lost wages, shall be any earnings. earned elsewhere during the interval as well as any unemployment compensation received. Full seniority shalj be restored. Georz E. Bowle s November 7, 1983 Arbitrator /~/[~~~

11 AWARD Issue 1. Was the revocation of the SF-46, U.S. government, motor vehicle operator identification of the Grievant, Jose Martinez, on September 30, 1982, for just cause? 2. Was the Notice of Removal for working in an unsafe manner given the Grievant, Jose Martinez, on September 3.,.1982, for, just cause? Award No. Both the revocation of SF-46 and the Notice of Removal are set aside. The Grievant shall be made whole and shall' receive lost wages and other related benefits provided however, deducted from such lost wages, shall be any earnings earned elsewhere during the interval as well as any unemployment compensation received. Full seniority shall be restore November 7, V GEORG E. BOWLES 1983, ARBITRATOR