APPEARANCES. At an arbitration on March 6, 1985 in the conference room of the First National

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1 b IN THE MATTER OF ARBITRATION BETWEEN REGULAR ARBITRATION Q Of'f # 1 * THE UNITED STATES POSTAL SERVICE * Re : Billy Stephen Lancaster "Employer" * Emergency Suspension and the * S1N-3F-D NATIONAL ASSOCIATION OF LETTER CARRIERS UNION "Union" * APPEARANCES Advocate for the Employer : Mr. 0. R. Smith, Labor Relations Representative Advocate for the Union : Mr. Ben Johnson, National Business Agent At an arbitration on March 6, 1985 in the conference room of the First National Bank of Lewisburg, Tennessee, the Employer and the Union authorized the undersigned to decide whether or not the Employer had just cause to emergency suspend the Grievant, Letter Carrier Billy Stephen Lancaster, from service. I will relate the events leading up to this emergency suspension as I believe those events occurred. Preliminary Background Discussion The genesis of this grievance occurred in July 1982 when the Department of Human Resources of Tennessee (the Department) suffered a loss of food stamps valued between $5000 and $6000. Postal Inspector John Lingle was assigned to the case. A 2nd loss valued at several thousand dollars occurred in November Lingle tried unsuccessfully to locate the point of loss. The evening of August 11, 1983, the Department mailed out 49 letters to food stamp recipients in Lewisburg, Tennessee. The food stamps contained in all the letters were valued at $10,042. The Department retained a list of the serial numbers of the stamps in the letters. All of the letters disappeared without a trace. Mrs. Mary Coleman worked for Mr. Danny Hill Wilson at the Wilson Drug Shop in Lewisburg. Sometime in December 1983, Mrs. Coleman contacted the Employer concerning food stamps and she agreed to be an informant for the Employer. Coleman thought that Wilson was dealing in stolen food stamps and she reported through a -1-

2 3rd individual that she suspected Wilson was getting the stamps from one, Tommy Davis. on March 12, 1984, Coleman notified the 3rd individual that she had located some stamps in the drug store ' s telephone book. The evidence disclosed that the monetary value was $201 and that the serial numbers of some of the stamps were within the range of serial numbers of the stamps that disappeared on August 12, A search warrant for the drug store was issued and the stamps were recovered. On September 20, 1984, the Grievant. Danny Hill Wilson, Nancy Garrett Carothers, William T. Davis, and Amelia K. Powell were indicted. The indictment charged they did willfully and knowingly combine, conspire, confederate and agree with each other, and with diverse other persons to buy, receive, mail matter in their possession. conceal or unlawfully have stolen The Grievant was specifically charged with possession of stolen United States Department of Agriculture food coupon books A , A G, A U, E E, A G, A G, E E. E E, and E E. - Five days later, on September 25, 1984, the United States Postal Inspector's Office issued an investigative memorandum, to wit : 1. On August 11, 1983, the Tennessee Department of Human Services mailed 49 letters containing $ 10,042 in food stamps to recipients at Lewisburg, TN. The food stamps mailed on that date should have arrived at Lewisburg for delivery on August 12, The U. S. Post Office at Lewisburg began receiving complaints from food stamp addressees concerning nonreceipt. The Postal Inspection Service was made aware of the nonreceipt on Monday, August 16, An investigation was conducted which failed to disclose who had taken possession of the food stamps. However, in late January, 1984, information was developed that stolen food stamps were in the possession of Mr. Danny Wilson at his place of business, Wilson's Drug Shop in Lewisburg. A search warrant was obtained and served on Mr. Wilson at his place of business on March 13, A quantity of food stamps that were mailed on August 11, 1983, were recovered at the pharmacy. The investigation following the search warrant showed that Billy Stephen Lancaster was the person from whom Danny Wilson was receiving the food stamps. 3. Serial numbers of food stamps in the possession of Mr. Wilson were recorded on December 17, February 17 and 18, 1984, and March 12, Of 18 food coupon books known to be on hand at Wilson' s Pharmacy on those dates, 12 were known to be missing from the August 11, 1983 mailing. 4. On February 18, 1984, Steve Lancaster arrived at Wilson's Drug Shop about 4 :00 p.m. in his postal uniform. He and Danny Wilson -2-

3 went into the back room of the drug shop and closed the door. After Mr. Lancaster left, Danny Wilson pulled food stamps out of his pants pocket and put them on the counter. The following serial numbers from the August 11,`1983 mailing were on hand at that time : A G A G A U E E 5. The investigation disclosed that on Friday, March , Mr. Lancaster made arrangements with Mr. Wilson to bring more of the food stamps to the store on Monday, March 12, On Monday, March 12, 1984, about 3 :00 to 3 :30 p.m., Mr. Lancaster arried at Wilson's Drug Shop in his uniform. He and Danny Wilson went in the back room of the drug shop. Mr. Lancaster left and, about 15 minutes later, Danny Wilson pulled food stamps and cash from his pocket. The following serial numbers were then on hand, missing from the August 11, 1983 mailing : A G A OG A G E E E E E E 7. The investigation disclosed that the food stamps were not on hand at Wilson's Drug Shop prior to the arrival of Billy Stephen Lancaster, and that they were on hand immediately following his departure from the store. 8. On September 20, 1984, Billy Stephen Lancaster was arrested for conspiracy with Danny Hill Wilson, William Tommy Davis, and Nancy Garrett Carothers. to buy, receive, conceal, or unlawfully have in their possession stolen mail matter, in violation of Title 18, Section 371, United States Code. In addition, Mr. Lancaster was charged with Mr. Wilson in nine individual counts of possession of stolen mail, the Department of Agriculture food coupon books, a violation of Title 18, Section 1708, United States Code. The arrest was based upon a Federal Grand Jury indictment returned on September 10, On September 25, Postmaster Hollis Nixon issued an emergency suspension letter placing the Gxievant in an off-duty status effective September 24, The letter contained the following allegation : The reasons for this action are : Charge 1 - You are charged with possession of stolen mail matter. On September 20, 1984, you were arrested by Postal Inspector Dennis Berger as the result of your indictment in the United States District Court for the Middle District of Tennessee, Nashville Division. The emergency suspension was grieved, the parties were unable to resolve the -3-

4 grievance in the grievance procedure, and the matter was brought before the undersigned for a final and binding decision. The National Agreement contains the following : ARTICLE 16 DISCIPLINE PROCEDURE Section 1. Principles In the administration of this Article, a basic principle shall be that discipline should be corrective 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. *** Section 6. Indefinite Suspension - Crime Situation A, The Employer may indefinitely suspend an employee in those cases where the Employer has reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed. In such cases, the Employer is not required to give the employee the full thirty ( 90) days advance notice of indefinite suspension, but shall give such lesser number of days of advance written notice as under the circumstances is reasonable and can be justified. The employee is immediately removed from a pay status at the end of the notice period. B. The just cause of an indefinite suspension is grievable. The arbitrator shall have the authority to reinstate and make the employee whole for the entire period of the indefinite suspension. C. If after further investigation or after resolution of the criminal charges against the employee, the Employer determines to return the employee to a pay status, the employee shall be entitled to back pay for the period that the indefinite suspension exceeded seventy ( 70) days, if the employee was otherwise available for duty, and without prejudice to any grievance filed under B. above D. The Employer may take action to discharge an employee during the period of an indefinite suspension whether or not the criminal charges have been resolved, and whether or not such charges have been resolved in favor of the employee. Such action must be for just cause, and is subject to the requirements of Section 5 of this Article. Section 7. Emergency Procedure An employee may be immediately placed on an off-duty status (without pay) by the Employer, but remain on the rolls where the allegation involves intoxication (use of drugs or alcohol), pilferage, or failure to observe safety rules and regulations, -4-

5 or in cases where retaining the employee on duty may result in damage to U. S. Postal Service property, loss of mail or funds, or where the employee may be injurious to self or others. The employee shall remain on the rolls (non-pay status) until disposition of the case has been had. If it is proposed to suspend such an employee for more than thirty (30) days or discharge the employee, the emergency action taken under this Section may be made the subject of a separate grievance. The Employer's Position The Employer pointed out that food stamps mailed to poor people in Lewisburg were stolen and the theft was investigated by the Postal Inspectors. The investigation pointed towards the Grievant as the individual who had the stamps. The stamp loss occurred on the Grievant's route and the losses stopped after the Postal Inspectors searched Wilson's Drug Shop on March 13, The Employer pointed out that Mary Coleman overheard a conversation between Wilson and the Grievant on Friday, March 9, In that conversation, Wilson asked the Grievant, "Do you have any more of those things - I could use some." The Grievant replied, "Yes, will Monday be all right?" The Employer pointed out that Coleman searched the drug store on Monday, March 12, 1984 before the Grievant came by the store and there were no stamps in the store. Later that day, Wilson gave Coleman cash for her to deposit in the bank. Still later in the day, the Grievant came by the drug store. Coleman told the Inspectors that Wilson and the Grievant went into the back room. A few minutes later Wilson and the Grievant came out of the back room and the Grievant left the drug store. After the Grievant had left, Coleman slyly observed Wilson slip something into the telephone. book. The next day the Postal Inspectors search the store and $201 in stolen food stamps are recovered. It was the Employer's contention that the stamps were not in the store before the Grievant walked into the store on Monday, March 12, 1984 ; and the stamps were in the store immediately after he left the store. The Union's Position The Union's advocate pointed out that the N.A.L.C. would not defend an employee on a pilferage charge where the stolen items were in the employee' s possession. The smoking gun rule applied and the stamps must be found in the employee 's possesion. -5-

6 The Union pointed out that the Employer's entire presentation was hearsay evidence and the only linkage between the Grievant and the stolen food stamps was the hearsay evidence of Danny Hill. The Union pointed out that Wilson was indicted but he plea bargained rather than stand trial. The Grievant was indicted and the case went to trial. Wilson testified against the Grievant, and the court records disclosed that Wilson admitted he would tell a lie to save himself. The jury did not find the Grievant guilty inspite of the testimony of Danny Wilson, an admitted liar and a convicted school friends felon. The Union pointed out that Wilson and the Grievant were high and the Grievant was a customer of the drug store, but the friendship and customer relationship did not prove the Grievant had possession of stolen mail. Opinion In this grievance, the Employer maintained there was just cause for the emergency suspension because the Grievant was charged with the possession of stolen mail. The Union maintained there was no just cause for the action because there was no proof that the Grievant had stolen mail in his possession. After carefully considering all the evidence, I find that there was no just cause for the emergency suspension. I will explain my reasons for this finding. All of the proof of wrong doing presented by the Employer was hearsay evidence. Mary Coleman did not testify and I believe she was not present at the arbitration. Danny Wilson did not testify and none of the other indicted individuals testified. Two Postal Inspectors testified but neither of the Inspectors found stolen mail in the Grievant's possession. 1. An employee accused of possessing stolen mail is entitled to face his accusers. Amendment VI of the United States Constitution reads : In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the

7 Assistance of Counsel for his defense. The Grievant's right to face his accuser is a constitutional right in criminal law and this fundamental right is observed in the arbitration of disciplinary grievances. 2. As stated earlier, all of the evidence in this arbitration was hearsay evidence. Two Postal Inspectors repeated the statements made by informant Coleman and the statements made by Danny Wilson. The Inspectors were not present when it was alleged the Grievant went to the drug store on March 12, With hearsay evidence there is always the risk of inaccuracy when a story is repeated. There was no reason given why Coleman could not be present to testify at this arbitration. My impression is that her testimony would be circumstantial evidence, but circumstantial evidence that pertains directly to the events in question is better evidence than hearsay evidence. Hearsay evidence is no substitute for direct evidence of the allegations against the Grievant. 3. An arbitration proceeding is a search for the truth. Years of experience have shown that the only reliable procedure for finding the truth is by the direct examination and cross examination of witnesses who were present when the events in question arose - no such witnesses testified ; therefore, there was no proof that the Grievant was involved in any wrong doing. Award After a careful consideration of all the evidence and upon the foregoing findings of fact, I find that the Employer did not have just cause to emergency suspend Billy Stephen Lancaster on September 25, The Employer will immediately offer to expunge the personnel file of Billy Stephen Lancaster of this emergency suspension and the Employer will immediately offer to make Billy Stephen Lancaster whole for the wages he has lost. -7- E dgy 4d W. Sche f Jr., rbitrator April 2, 1985