VOLUNTARY LABOR ARBITRATION. Was the removal of thetgrievant for just cause, and, if not, what shall the remedy be?

Transcription

1 VOLUNTARY LABOR ARBITRATION I IN THE MATTER OF THE ARBITRATION BETWEEN i UNITED STATES POSTAL SERVICE DETROIT, MICHIGAN POST OFFICE DETROIT, MICHIGAN i i AND i NATIONAL ASSOCIATION OF LETTER CARRIERS BRANCH NO. 1, DETROIT, MICHIGAN j CASE NO. CIN-4B-D ~ i t OPINION AND AWARD RECEIVED MAR Jack R. Subject : Failure to discharge duties - Consumption of alcohol during working hours. Submission Agreement : John Smith, Grievant Sebolt Was the removal of thetgrievant for just cause, and, if not, what shall the remedy be? Contract and Handbook and Manual Provisions : Appearances : Article 16 and Article 19 of the 1981 National Agreement, Joint Exhibit 1 ; Part of the Employee and Labor Relations Manual ( Use of Intoxicating Beverages ) ; Part of the E&LR (Behavior and Personal Habits ) ; Part of the E&LR (Discharge of Duties ) ; and Section of the M-41 Handbook. For the Employer Bennie J. Powell, Labor Relations Representative Marvel Brown, Manager, Springwells Station For the Union Peter Romanelli, PresLdent Emeritus, Branch 1, NALC John H. Smith, Grievant Geloney Kelly, Jr., Financial Secretary

2 I. INTRODUCTION The hearing in this case was held on Wednesday, November 7, 1984 at the Main Post Office, 1401 West Fort Street, Detroit, Michigan 48233, before the undersigned Arbitrator duly appointed by the parties pursuant to the rules of the United States Postal Service Regular Regional Level Arbitration Procedures to render a final and binding decision in this matter. At the hearing, the parties were afforded full opportunity to present such evidence and argument as desired, an examination and cross - examination of all witnesses. including No formal transcript of the hearing was made. The Employer filed hearing brief, which was received on December 11, 1984, the hearing was declared closed,"-since the Union relied a postwhereupon on its comprehensive oral closing. Both parties stipulated at the hear- _ ing as to this Arbitrator ' s jurisdiction and authority to issue a final and binding decision in this matter. II. STATEMENT OF THE GRIEVANCE FACTS : Notice of Charges - Removal ( non-veteran ) No just cause - Grievant states that he delivered all mail distributed to his route on 3/8 / 84. Management did not present evidence at Step 1 to prove the alleged charge. CORRECTIVE ACTION REQUESTED : Rescind Notice of Charges - Removal ( non-veteran) and reimburse any lost wages or benefits.

3 III. FACTUAL BACKGROUND On March 20, 1984, the Grievant was issued a Notice of Charges-Removal, to be effective no earlier than thirty days from receipt by Grievant. The Notice of Removal specified the following grounds as reason for the discharge : On 03/08/84 you were assigned to Springwells Station, Route #912, Detroit, Michigan On 03/09/84 in the afternoon the Station Manager received complaints that mail had not been delivered on Route #912 on 03/08/84. Additionally, the Station Manager received a call from the Postal Service Complaints Officer. He stated that he had received a complaint on non-delivery of mail on your route on 03/08/84. A total of ten (10) consumer service cards were received by the manager of Springwells Station which were complaints of non-delivery off mail on Junction Street, Toledo Street, Newberry Street and Rpmeyn Street on Route #912 on 03/08/84. The consumer service cards also indicate that you frequently appeared to be under the apparent influence of intoxicants when you are on duty on your route. Additionally, your supervisor observed that upon your return to the station on 03/08/84 you appeared to be under the apparent influence of intoxicants, your eyes were glassy and your face was flushed. Your conduct is unacceptable and your conduct failed to meet the Postal Service's Standard of Conduct as stated in the Employee and Labor Relations Manual : Section Discharge of Duties "Employees are expected to discharge their assigned duties conscientiously and effectively." Section 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." - 3 -

4 4 And Handbook M-41, City Delivery Carriers Duties and Responsibilities, Section : "Be prompt, courteous, and obliging in the performance of duties. Attend quietly and diligently to work and refrain from loud talking and the use of profane language." The following elements of your past record will be considered in taking this action : 1. Notice of Suspension of fourteen (14) days dated 12/21/83 for conduct. 2. Notice of Suspension of fourteen (14) days dated 06/09/83 for failure to obey orders. 3. Notice of Suspension of fourteen (14) days dated 03/23/83 for failure to adhere to prescribed schedule. Modified to seven calendar days per Step 1 settlement dated 04/09/ Notice of Suspension of seven (7) days dated 12/14/82 for failure to follow instructions. Modified to five calendar days per. Pre-Arbitration Settlement dated 04/13/ Letter of Warning dated 10/07/82 for safety violation. 6. Letter of Warning dated 09/15/82 for failure to provide security of mail. 7. Letter of Warning dated 06/04/82 for improper clock rings. 8. Letter of Warning dated 01/19/82 for improper clock rings. 9. Letter of Warning dated 08/04/81 for failure to make basic clock rings. 10. Notice of Suspension of fourteen (14) days dated 08/18/ Letter of Warning dated 03/10/80 for failure to conduct a vehicle safety check. 12. Notice of Suspension of seven (7) days dated 07/11/80 for Absent Without Official Leave. The Grievant, John Smith, was appointed as a Career City Letter Carrier at the Detroit, Michigan Post Office some 17 years prior to his removal. The Grievant had served on his present assigned city letter carrier route (Route 912 at Springwells Station) for five years. Grievant was removed as a result of a - 4 -

5 number of customer complaints that indicated that the Grievant continuously delivered mail while in an intoxicated state ; failed to deliver mail on Route 912 at Springwells Station on that date ; was intoxicated on his route on the day in question ; and was observed by at least one supervisor to be under the influence of intoxicants when he returned from his route to the Springwells Station that afternoon. Further, it is claimed that on March 9, 1984, the Station Manager received complaints of non-delivery on Grievant's route for the previous day. The sole Management witness, Manager, Springwells Station, Marvel Brown, gave-the following account of events which led to Grievant' s removal. Ms. Brown testified that Grievant was scheduled on Route 912 on the day in question, March 8, According to Brown, Management began to receive complaints about 4 P.M. that day. The complaints were from irate-customers who asserted that no mail was delivered on various blocks along the route, according to Brown' s testimony. Brown claims she received some of the complaints herself, although she left the premises before 4 P. M. when the bulk of the apparently came in. She also testified that Tom Webster, complaints from the Complaint Department downtown, called her early the next day and informed her of numerous complaints to that department. It was at this point, Brown stated, that she went to locations on the route where specific complaining customers resided and began to attempt to interview them herself. It is Brown's testimony that, on March 9, she interviewed numerous customers, who all complained - 5 -

6 of Grievant ' s conduct the prior day and for sometime before the precipitating incident. Some customers refused to fill out complaint forms ; some would not give their names ; but all customers interviewed who had seen Grievant the prior day claimed either that he was intoxicated or that he was not performing his duties. In substantiation of these assertions by the Employer, Management submitted Employer Exhibit 2, which contains six Consumer Service Cards (PS Form C) where specific named individuals stated that Grievant was intoxicated and failing to deliver his mail on the day in question or at other times just prior to that event. Employer Exhibit 2 also contains four PS Form P Consumer Service Cards, which are the written notes of telephone complaints taken by various postal employees. Two out of the four cards were apparently taken by Witness Brown herself. One card was taken by I. Brown, the Superintendent of Stations and Branches Operations at Springwells, and one was taken by L.' Rogers. All these forms complain of no mail delivery on March 8. Employer Witness Brown testified that the complaints of various customers indicate that the Grievant continuously delivered mail while in an intoxicated state. Moreover, the complaints are specific that a substantial number of homes on route 912 received no mail delivery whatsoever on March 8. The customer complaint cards submitted into evidence do contain complaints exactly as Brown indicated. No customers were actually presented by Management at hearing to supply direct evidence of

7 the claims and allegations made by Management. Moreover, the supervisor who allegedly observed Brown in an intoxicated state on March 8 was not called to testify. The Grievant emphatically denies the Employer ' s accusation that he consumed alcohol while on duty March 8, He insists that he took pills or medication on the date in question and did not drink any intoxicating liquor at any time during the day. Grievant claims that when he returned to the station at approximately 3 P.M., no supervisor mentioned to him that he smelled alcohol on his breath. No one confronted him or asked him to take a breathalyzer test. Grievant further insists that he performed all his duties on March 8. It was.not until the following Monday, after two days off while a substitute worked, that Grievant was informed that there were customer -complaints or that there was allegedly a problem with the Grievant's drinking on the job. Grievant and the Union emphasize that no curtailed mail was ever found that could be traced to Route 912. The Union stresses that no charges that Grievant threw away mail have been lodged against Grievant, even though postal inspectors did investigate the incident. Moreover, neither the substitute mail carrier nor any other employee found hidden mail or mail outside Grievant's case. The Union insists that, without evidence that mail was misdelivered or otherwise improperly handled, mere customer complaints - rank hearsay at its worst - cannot support a removal action. Since Management attempted to trace curtailed or misdelivered mail through its considerable manpower, particularly through postal inspectors, - 7 -

8 the failure to-come up with any mail that actually was not properly delivered rebuts claims of customers that Grievant failed to perform his=duties. Grievant maintains throughout the grievance process and at hearing that all accusations against him are totally unfounded and that he was "set up " or framed because of his prior work record and problems with Management. He also claimed that certain customers who lived at the latter part of his delivery route were angered by not receiving early delivery of their mail and held Grievant personally responsible. He specifically asserted that certain customers wanted their benefit checks and other monies in the early morning, but that because of the layout of his route he could not satisfy them. These customers instigated false complaints and claims of drinking-while on the job, Grievant argues. Thus, the entire basis for the unwarranted allegations and resulting discipline was because, at least in the Grievant's mind, he had engaged in the normal activities and responsibilities of a letter carrier. In support thereof, Grievant cites the fact that several customers allegedly went along his route and attempted to obtain signatures for a petition for his reinstatement. He claims that certain customers thought Grievant was the best carrier ever on the route. Although the Union concedes that this testimony is hearsay, it reminds the Arbitrator that if credence is given to Management ' s exclusively hearsay evidence, Grievant's claims must be given equal credit

9 While Grievant admits that he has had some problems at work, he ascribes the source of the numerous disciplines against him to "bad blood" between himself and Management at the springwells Station. The Grievant specifically testified that station management has given him "a hard time" beginning in Indeed, the record does indicate that, during this period, Smith has been disciplined thirteen times, including the present removal action. The Grievant further testified that, prior to 1980, he had few if any problems. To the contrary, Management claims that Grievant was diciplined nine times from 1976 to This contradiction must seriously detract from Grievant ' s credibility, Management urges. IV. DISCUSSION AND FINDINGS The Arbitrator has accorded a great deal of time to the consideration of this case, including the evaluation of the evidence, the testimony of the two witnesses presented and of the documentary evidence submitted to me. The issue on the merits is one of relative simplicity, involving a situation of alleged drinking on-the-job and of nonperformance or inadequate performance of mail deliveries on March 8, The allegations of intoxication while Grievant was in on-duty status, in carrier uniform, and at a time when no official clock- out had occurred are indeed

10 serious. Such conduct merits summary discharge, under this labor contract or under any reasonable concept of just cause. Moreover, given Grievant ' s place on the progressive discipline grid, the claims of lack of performance of reasonable assigned work duties on the date in question also would merit discipline, including in this instance removal. These facts are the basis for Management's charges that Grievant had engaged in conduct unbecoming a postal employee and that he was perceived by his customers as being consistently under the influence of intoxicants while on duty on his route. Management further avers that Supervisor Brown y credibly testified that she interviewed witnesses, all of whom claimed to have observed the Grievant intoxicated on the route on March 8 or at times prior tb_that critical date. She testified in a frank and candid manner that many of the customers whom she interviewed stated that Grievant demanded to use their bathroom on the route, or urinated at the side of a house or in other places outdoors in plain view of the public. She indicated that

11 at least one customer stated that she saw Grievant in a bar located on.the route on March 8, and that, at that time, Grievant was intoxicated. In addition, Management points to the "testimony" of the unnamed Management Supervisor, who was not present at hearing but whose diaried observation was recorded in the grievance documents themselves, which indicated. that Grievant, when he returned to the Springwells Station on the afternoon of March 8, appeared to be drunk. Given the Union's complete failure to ascribe any improper motive or reason to discredit the evidence proferred by the Service, Management's version of the facts must be credited, it argues., Moreover, Management stresses that Grievant was referred to the PAR-Alcohol Rehabilitation Program on October 8, 1982 but, by January 27, 1983, had quit participating in the program. Accordingly, on March 25, 1983, William E. Booker, PAR Coordinator, withdrew Grievant (referred to as the "client") from active files and so indicated in writing to Management. Although Grievant denied that he had a drinking problem on the witness stand at this hearing, the above facts certainly can be used by the Arbitrator in assessing credibility and the likelihood of Grievant's behaving in a manner which the customers claimed occurred. (See Employer Exhibit 3.) The Union, on the other hand, maintains that the grievance should be sustained because the Grievant was removed without just cause. At best, the Union emphasizes, the evidence proferred

12 by Employer is merely circumstantial and patently hearsay ; no one testified that he or she had actually observed the Grievant drinking alcohol or smelled alcohol on Grievant's breath, nor is there any evidence that liquor was found on the Grievant's person or jeep. Instead, the alleged proof of the use of alcoholic beverages was based solely on the inference that because a certain supervisor claimed to have observed the Grievant on March 8 in what was his or her opinion an intoxicated state, that he must have been drinking. Moreover, the complaints of customers not presented in person at the hearing cannot be given any credence whatsoever, since they were not subjected to cross-examination for possible bias or prejudice, because, for example, their homes were located on the last portions of the route to be delivered or for other, undisclosed reasons. In the Union's view, no negative inferences can be drawn from the testimony of Employer Witness Brown. There is no concrete evidence that any of the people who complained on March 8, if they in fact complained, had mail that particular day. It is possible, for example, that an individual might complain that mail was not delivered because a check or other letter might be expected, but had been delayed by sources wholly unrelated to Grievant. The crux of this case, as the parties acknowledge, involves two issues : a credibility determination by me and a judgment as to whether hearsay evidence like that presented

13 here as the major portion of Management ' s case can, in this instance, or ever, justify and prove a discharge of an employee under the just cause standard in this labor contract. Given the state of the record evidence actually adduced, it appears to me that the Union is correct that Management cannot sustain its burden of proof on the intoxication while on duty contention. During this hearing, as in a game of tug-of-war, each side enlisted the aid of an equal number of witnesses (one to a side ) to support its respective position. Grievant denies that he was drinking ; Management argues that he was. Management Witness Brown insists that she was told by an unnamed supervisor that Grievant was "observed " upon his return to the station on March 8 and appeared to be under the apparent influence of intoxicants. Brown reports that she was told that Grievant ' s eyes were glassy and that his face was flushed. I, like the Union, am deeply troubled by the failure of the Employer to produce this supervisor so that he or she could be subjected to cross-examination, since presumably the testimony elicited would have constituted the only concrete and direct evidence that Grievant in fact had been drinking on the job. Ordinarily, under the rules of evidence applicable in courts of law, such a failure to call a witness under the control of an interested party would require a presumption that testimony given would be adverse to that party

14 Given the nature of the arbitration process, I am unwilling to go so far under these particular circumstances. There is, however, an obvious failure to elicit any concrete and direct evidence of drinking on duty other than the hearsay complaints,of customers introduced as Employer Exhibit 2 and the testimony of Brown where she merely repeats the complaints of customers and reports their alleged observations. As the Union notes, correctly, I might add, it is possible that an individual might drink the night before and be completely sober when reporting for work and yet still retain the odor of the intoxicating beverages which he may have consumed. It is also possible that an individual taking medication might be perceived by others as acting in_a manner which at times seems like the behavior of a drunk, without having had one single drink. Although these misinterpretations are unlikely, such innocent errors have happened. More important, as the Union stresses, those customers who allegedly told Employer Witness Brown that they saw Grievant in a bar, or urinating in public, or, otherwise saw behaviors that seemed to indicate drunkenness on the job on the part of the Grievant might not have had any experience or basis upon which to so conclude. Although this is also merely a possibility, the Arbitrator has no basis, given the nature of the proofs adduced, to ascertain or conclude whether this is so or not. Opinion evidence, such,as that presented by Brown, must, therefore, be further discounted where, as here, the Employer witness and

15 complaining customers have not been brought to -the hearing. Customers or the unnamed supervisor may in fact have a clear bias against the Grievant. Without an ability to cross-examine and ascertain the likelihood of the alleged bias, the Union has been effectively prevented from making its case and Grievant has been denied basic rights to confrontation which are inherent in the arbitration process. I so hold. Finally, the Union contends that it presented convincing evidence through the testimony of Grievant that he had not imbibed in alcohol on the date in question. Grievant conceded that he has had a "problem " over the last five years, since the break-up of his marriage. Management should have attempted corrective action, not punitive action, in this case, it contends. The Union further opines that thetservice should have attempted to counsel Grievant and call him into its office and try to help him with his work-related troubles rather than greasing the skids of the discipline ladder to create a plunge to removal. As to that assertion, the Arbitrator certainly cannot agree. The Arbitrator has often noted that any presumption that supervisors generally are more trustworthy than grievants when they testify at arbitration hearings or that they lack a motive or self-interest to shape facts to their benefit is one that is questionable at best and often simply wrong. I have also noted at various times that reliance on demeanor evidence to

16 resolve instances of credibility is slippery ground at best. I agree with Arbitrator Samuel H. Jaffee that drawing conclusions from opinions based on the demeanor of various witnesses is notoriously unreliable and a treacherous basis for solving fact controversies. See Golden Pride, Inc., 68 LA 1232, 1235 (1977). The Arbitrator, however, cannot close his eyes to the obvious, especially when a grievant subjects himself to the scrutiny of being a witness in-hearing. This particular Grievant testified fully and completely at the hearing in this arbitration proceeding. Grievant at the time slurred his speech, appeared to be flushed, and often disorientated. Moreover, he relied on the claim of personal antipathy against him to justify the prior numerous instances of discipline and the initial referral to the PAR Program. Yet, he presented neither a basis for the claim of improper motives on Management's part, or any explanation as to why he did not follow through and/or participate in PAR. Under these facts, I certainly have not given any substantial weight to the denials of wrongdoing of the Grievant. I do not find him "innocent of wrongdoing." On the charge of improperly imbibing on duty and/or of being intoxicated on the job, I hold merely that Management at hearing completely failed to prove its case. That is, after all, the burden assumed by it in discipline and discharge cases under the contract

17 As to the second charge, that of failure of Grievant to.properly discharge his duties on March 8, the ultimate weakness in the case before the Arbitrator is that there is no concrete evidence that a mail was misdelivered or curtailed on the date in question. Management has not been able to find any mail, or to show that any mail was not delivered which was in fact scheduled for Route 912. All Management did on March 9 was to go to approximately every fifth house on the route, and attempt to ascertain if the residents had received mail. The fact that some residents had not received mail, and that one irate customer desired to have her check early, cannot constitute sufficient evidence to terminate a 17-year veteran ;employee in my view. This is so despite the truly disastrous work record of this Grievant. Ultimately, to justify discharge, more than several group complaints must be proved. A dereliction of duty or "bad act" has to be shown to allow disciplinary action for this or any employer. Corroboration of the claims of omission must be had. The obvious sticky point as to this charge, once again, and what creates a close contest in credibility, is the pure hearsay nature of the evidence adduced by the Employer. No evidence of curtailed mail was introduced. Despite a postal inspector investigation, no proof of thrown-away mail was offered. The Service merely claims that where there is smoke, there is fire ; that an experienced letter carrier can fool supervisors and the postal inspectors called in ; nevertheless, the Arbitrator should sustain

18 Management because Grievant has shown a. propensity to engage in similar, numerous misbehaviors in the past. Yet the Service acknowledges that Management has been unable to find concrete evidence of missing mail and is forced to argue that "a seasoned carrier who failed to deliver a portion of his route would have a number of methods to prevent detection of his failure to perform his assigned duties." (Employer ' s Brief, p. 2). Management is thus ultimately forced to rely solely on the fact, as credibly testified to by Employer Witness Brown, that a number of customers who were awaiting mail on the-day in question did not see the carrier on that particular block on the day in question during the delivery period and received no mail, or that some customers claimed to have seen him drunk on the route and not delivering mail. As noted above, one could and should desire more probative and convincing evidence from Management, upon whom the burden of proof rests. The Arbitrator recognizes that arbitration is not a court of law and that the technical rules of evidence are intentionally made inapplicable here. Hearsay is admissible, and must be accorded the weight deemed appropriate by the Arbitrator. In this instance, I believe the weight of the customer complaints, in the form introduced in this case, is once again insufficient. Grievant and the Union claim that numerous postal customers are routinely angry with letter carriers because the customers are scheduled for deliveries on the route later than they like. Grievant also claimed that one woman was specifically

19 irritated around the time of the incident before me because a check she expected was not received in the mail. These claims in no way counteract or explain why the number of customers involved here would complain simultaneously on a particular day. Grievant's attempted explanations might serve to some extent to explain why a series of complaints over time might occur. Nowhere does Grievant convincingly present a plausible reason for the number of complaints involved here to have come in on March 8 and 9. But that is not his burden. Grievant's prior work record does reveal a propensity to act in a manner. similar to that for which he is charged. Although, in a criminal case, the record compiled by Grievant might be inadmissible, in arbitration, prior work records are often used by both labor and management both to prove the merits of the case and with reference to the propriety of a particular penalty imposed. Unions commonly claim that a particular grievant with an outstanding work record would be unlikely to suddenly seriously breach a work rule. Management, on the other hand, often asserts that employees who have a repeated pattern of similar misconduct have created by their, own conduct the inference that they have merely repeated their indiscretions once again. Under these particular facts and circumstances, Grievant's prior work record seems to support the hearsay claims of the customers credibly reported by Manager Brown. 19 -

20 Is such "proof" sufficient? Lawyers often say, "Hard cases make bad law." Grievant is far from a perfect employee. To hold, however, that the evidence of prior bad acts and customer complaints, without any objective, corroborative proof, is sufficient to sustain a finding of a rule violation and a removal would, in my view, violate the basic right of employees to have a hearing and be proved to have acted in breach of a rule. Some witness with personal. knowledge-- the unnamed supervisor, for example -- could certainly have been called by the Service to testify here, I believe. Without that irreducible minimum, I find this contract ' s just cause standard violated, as well - as a violation of the accepted norms of industrial due process. I so find. Based on the foregoing, including my assessment of Grievant ' s demeanor and despite the extent and consistent nature of the complaints submitted, I find Management has not sustained its burden of proof that Grievant. engaged in conduct unacceptable to the Postal Service by failing to discharge his duties on March 8. Specifically, the evidence does not show that Grievant did not deliver mail to large segments of his route. Based on observations of customers who were moved to telephone the Employer both by Grievant ' s appearance and conduct, there was certainly reason to investigate. Without some corroboration, this was insufficient proof of breach of duty permitting discipline. Since no breach of duty was proved whatsoever, I must order Grievant restored to his former position, with full backpay and all benefits, including seniority - Therefore, the grievance must be sustained.

21 V. AWARD For the reasons stated above and incorporated herein as if fully rewritten, the grievance is sustained in its entirety. Grievant is ordered restored to his former position, or substantially equivalent employment, with all benefits and rights restored, including full back pay. ELLIOTT H. GOLDSTEIN Arbitrator Chicago, Illinois March11, 1985 ELLIOTT H. GOLDSTEIN Arbitrator 29 South LaSalle Street Suite 800 Chicago, IL (312)