(REGULAR ARBITRATION PANEL Un the Matter of the Arbitration Grievant : c~ - ~24 110 Richard Heroux between Post Office : Woonsocket RI UNITED STATES POSTAL SERVICE -and- USPS Case No: BOIN-4B-C 02231730' 8' NALC Case No : 8292002 ATIONAL ASSOCIATION OF LETTER( CARRIERS AFL-CIO Before : Bruce Fraser, Arbitrator Appearances : For the U. S. Postal Service : Rene Salois For the Union : Ronald Augustus Place of Hearing : Woonsocket, RI F~,w~iVED ppr 2 91003 JGHrv 1 CASCIANO, NBA I I rvaic _ne~y c_ rvgiano PEG~. Date of Hearing : February 7, 2003 Date of Award : April 14, 2003 Relevant Contract Provisions : Article 16 Contract Year: 2002 Type of Grievance : Arbitrability : Discharge Award Summary The grievant was removed and returned to work under a LCA which contained a waiver of arbitration rights. When the removal was reimposed, and the Union grieved this action, the Service challenged the substantive arbitrability of the grievance. I found that a waiver which is negotiated locally and which is in violation of-the National Agreement, specifically Article 16, should not be enforced. The grievance is arrbitrable. MAY 2 2003 CONTRACT ADMINISTRATInNI U MT N.A.L. C. HDCRiRS.. :,,,.. 0.C.
2 THE ISSUE The parties agreed upon the following issue : Is the grievance, BOIN-4B C 02231730, which arose when the Postal Service reimposed a removal covered by a Last Chance Agreement which included a waiver of arbitration, substantively arbitrable? THE FACTS The grievant, Richard Heroux, was sent a Notice of Proposed Removal from the Postal Service on October 29, 2001. The Union grieved, and the parties reached a Last Chance Agreement (LCA) dated December 13, 2001, which returned Heroux to work subject to a number of conditions. The relevant parts of the LCA reads as follows : This refers to discussions with you and your representative, in regard to the Notice of Removal issued November 17, 2001 resulting in the following mutuallyagreed upon settlement, which is understood, is without precedent. It is agreed that the removal of Richard Heroux will be held in abeyance for a period not to exceed two (2) years from the date of this agreement. During the two (2) year period the grievant will be in a probationary status. This "Last Chance Agreement" is provided solely as an opportunity for the grievant to demonstrate his adherence to all postal regulations and policies. 2. You, Richard Heroux, hereby acknowledge that you fully understand your responsibilities as outline in Section 661.53 of the Employee and labor Relations manual as cited in the above -referenced Notice of Removal. Specifically, the grievant understands that any violation of these policies will result in the immediate reimposition of the removal. 3. You, Richard Heroux, agree to submit to an initial drug and alcohol test in order to return to work. Such testing shall be performed by an outside facility chosen by the Agency, in conjunction with the Medical Unit. Failure to pass such test shall be considered a violation of this last chance agreement and result in the immediate reimposition of the removal. You, Richard Heroux, voluntarily agree to submit to random drug and alcohol testing monthly, for an eighteen-month period beginning with the date you return to work. Such random testing shall be determined and administrated by an outside facility chosen by the Agency, in conjunction with the Medical Unit... Failure to pass such test shall be considered a violation of this last chance agreement and result in the immediate reimposition of the removal.
3 7. Should the grievant fail to comply with any term or condition with this agreement, the removal referred in Item 1 of the agreement shall be effected immediately and the grievant and his representative waive all rights to appeal the reimposition of the removal and/or any situation, circumstance or decision which led to the reimposition of the removal through the grievance-arbitration procedure and/or the Merit Systems Protection Board. This agreement is entered into by all signatories of their own free will, without coercion of any type, and which recognized that this is a "last chance" opportunity for Richard Heroux to fulfill the requirements of employment of the U.S. Postal Service. Furthermore, this agreement recognizes this is a final and binding resolution to the issues noted above and if the grievant fails to comply with this agreement and the removal is effected the grievant and Union understand and agree that the right to challenge, grieve or file a complaint in any forum is waived. The LCA was signed by Postal Service Representative Michael Canton, Union Representative Roger Sweeney, and the grievant, Richard Heroux. Pursuant to the LCA, the grievant was tested on August 27, 2002 and again on August 29, 2002 by Dr. Nicholas Tsiongas. In his report, dated August 29, 2002, he wrote : This Fitness for Duty was initiated by Mr. Heroux's presenting to our office on August 27, 2002, at which time a urine drug screen was collected and sent and a breath alcohol test resulted in a reading of 0.01 mg/dl. Although this was positive, it was well below both DOT and legal limits for intoxication. However, the patient was noted by the staff to have a good deal of tremor and as a consequence you asked that Mr. Heroux return to the office for evaluation on the same day. Urine drug screen, rapid test, is negative for tested drugs. The patient's breath alcohol today [August 29, 2002] is 0.046, roughly four-times the level noted two days ago. As a result of these tests, on September 4, 2002, Heroux was issued a Notice of Reimposition of Removal which charged a violation of the December 13, 2001, LCA agreement. The Notice of Removal included the following : On your Last Chance Agreement dated December 13, 2001, you signed that the charges as stated in your October 29, 2001 Notice of Removal were fully supported by the evidence and warranted your termination. Just cause existed under your original removal. It is my determination that you have violated Item No. 3 of the Last Chance Agreement you signed on December 13, 2001, and that your removal is effective as of September 4, 2002.
4 CONTENTIONS OF THE SERVICE ON ARBITRABILITY The Service contends that it has the prerogative to decide if and when a LCA has been violated. In this case, the Service determined that the grievant failed an alcohol test and thereby violated the LCA. Given the conditions stated in the LCA, Paragraph 7, which the parties and the grievant voluntarily signed, the Service argues that the grievant waived his right to appeal the reimposition to the grievance-arbitration process. Therefore, the grievance should be found to be not arbitrable. CONTENTION OF THE UNION ON ARBITRABILITY The Union contends that Article 16 of the National Agreement guarantees an employee access to the grievance and arbitration process for discipline, without exception. It maintains that the grievance should be found arbitrable. DISCUSSION The question before me is whether or not a grievance challenging the reimposition of a removal for the violation of a Last Chance Agreement can be heard on the merits if the LCA contains a waiver of the right of appeal to the grievance-arbitration process. A Last Chance Agreement is typically a contract between an employer, a union, and a grievant who is about to be terminated. In consideration for the employer placing the termination in abeyance for a specified amount of time, the employee agrees to fulfill a number of conditions, usually involving whatever activity gave rise to the removal. If, during the specified time period, the employee fails to fulfill these conditions in the employer's view, he/she will be subject to the reimposition of the removal. There are basically two types of LCAs : a narrow one, and an all-inclusive one. In the former type, the employer may claim that the LCA has been violated and may reimpose the removal.
5 However, this type of LCA does not preclude access to the grievance-arbitration process by the employee should there be a dispute over the merits of the alleged violation. In the latter type, what we have here, the employer places an additional condition in the LCA, namely, that the grievant waives the right to appeal the reimposition of the removal. Once the Service makes its finding of a violation, there is no further action possible on the part of the Union or grievant. On the basis of many court and arbitration decisions, some of which were provided to me at the hearing, it is clear that the Federal Courts, the MSPB, and arbitrators take one of two positions on the issue of enforceability of the all-inclusive LCA. One approach, that embraced by the Service, has applied the common law contract principle of an offer-acceptance as binding, as long as the employees were fully aware of what they were giving up and the conditions do not conflict with public policy. In addition, arbitrators have argued that this process facilitates settling a grievance at the lowest possible level and these LCAs are an extension of the National Agreement with the full force and effect of the language contained in the Agreement. To foreclose such conditions of waiver, they argue, would create a chilling effect on management's willingness to enter into LCAs. The other approach takes the position that such waivers should be rejected since the Local Union has no authority to enter into an agreement with Local Management where the agreement modifies and is inconsistent with the terms of the National Agreement. In addition, proponents of this approach argue that the requirement of a waiver as one of the conditions is potentially coercive, there is nothing in the Agreement that specifically precluded a LCA with a waiver from being arbitrated, there is no evidence of any chilling effect suggested by the other side, and such Local Memorandum of Understanding, albeit designed to handle Local Implementation Processes, are prohibited from being inconsistent with the National Agreement.
6 In the present case, there is no question that the grievant was aware of the conditions contained in the LCA when he signed it. Moreover, there was no evidence that he felt coerced. The question here comes down to whether an all-inclusive LCA is violative of the parties' Agreement. I find that it is Article 16.1 reads, in part, as follows : No employee may be disciplined or discharged except for just cause... 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, include back pay. It does not specify here, nor anywhere else in the parties' Agreement, that Last Chance Agreements are excluded from this or any other provision. There is nothing in the Agreement that prevents an employee who has had a removal reimposed from access to the grievance-arbitration process with a just cause standard. By failing to reject a LCA with a waiver clause, an arbitrator is ruling that the Local Union and the Local Management can unilaterally alter the terms and conditions of the National Agreement for their particular purposes. If they are empowered to alter Article 16.1, then why not Article 15.2, Article 8.3, or others? The purpose of a National Agreement is to provide a uniform set of terms and conditions for all members of the Union, and any local agreement, as mentioned in Article 30, cannot be inconsistent with the National Agreement. One cannot locally bargain away what has been agreed upon nationally. Proponents of the acceptability of a waiver argue that grievance should be settled at the lowest level and the LCA is an extension of the parties' Agreement. I agree, and in fact the grievance which originally gave rise to the LCA was settled this way, short of arbitration. But, when the agreement is violative of the National Agreement, it should not be enforced.
7 Proponents also argue that to reject all-inclusive LCAs would have a chilling effect on Management ' s willingness to enter into these arrangements. This may be the case, but I have not been able to find any research on the topic that persuades me of the correctness of this position. Finally, arbitral enforcement of a waiver provision, whereby the arbitrator is foreclosed from examining the actions that gave rise to the reimposition of the removal, could permit instances to arise where the Service, despite the best of intentions, reimposes a removal based on mistaken facts. Unless the grievant has access to the grievance - arbitration process, a miscarriage of justice could result. Surely the parties want to avoid this. In summary, I find that a LCA with a waiver of arbitration should not be enforced. AWARD The grievance is arbitrable. April 14, 2003.',#irUVFraser Scituate, MA Arbitrator