i i 1 qq_c_)q REGULAR ARBITRATION PANEL ( In the Matter of the Arbitration ) ( GRIEVANT : G GAUNA between ) ( POST OFFICE : BRAWLEY, UNITED STATES POSTAL SERVICE ) CALIFORNIA and ) CASE NO : F90N -4F-D95007275 ( NALC CASE NO : 2704-10 NATIONAL ASSOCIATION OF ) LETTER CARRIERS, AFL-CIO BEFORE : Gary L. Axon, ARBITRATOR APPEARANCES : For the U. S. Postal Service : Gary F. Shaw Labor Relations Specialist United States Postal Service 11251 Rancho Carmel Drive San Diego, CA 92199-9401 For the Union : Place of Hearing : Date of Hearing : Date of Award : Relevant Contract Provisions : Contract Year : Type of Grievance : Joan Hurst Regional Administrative Assistant San Francisco Region National Association of Letter Carriers, AFL-CIO 3636 Westminster Avenue, #A Santa Ana, CA 92703-1145 San Diego, California September 6, 1995 November 27, 1995 Article 16, Sections 1 & 6 1990-94 Discipline Award Summary The Postal Service violated Article 16.6 when it imposed an indefinite suspension on Grievant Gauna on July 26, 1994. The Postal Service is ordered to make Grievant whole for all wages and benefits lost. Pursuant to the stipulation of the parties, the period for which Grievant Gauna is due back pay runs from August 19, 1994, through March 24, 1995. The grievance is sustained.
t The case arose out of the arrest and arraignment of Grievant on federal bribery charges unrelated to his work with the Postal Service. Based on the arrest and indictment, Postal Service placed Grievant on indefinite suspension. Union argued that the arrest and indictment was insufficient to trigger the operation of Article 16.6. Gary L. At' Arbitrator 2
I. STATEMENTP OF ISSUE The parties stipulated to a statement of the issue which read : Did the Postal Service have reasonable cause to believe the grievant to be guilty of a crime for which a sentence of imprisonment could be imposed so as to issue the grievant an indefinite suspension in accordance with Article 16.6? II. RELEVANT CONTRACTUAL PROVISIONS Section 1. Principles ARTICLE 16 DISCIPLINE PROCEDURE 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 3
employee the full thirty (30) 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. 4
F III. STATEMENT OF FACTS This case arises out of the indictment and arrest of Letter Carrier, Gerald Gauna on federal charges of bribery of a local government official. Jt. Ex. 2, p. 9. The charges stemmed from allegations Grievant was employed as a "consultant" by R&J Sharma, husband and wife, to assist in securing a subsidy from the City of Calexico on a land transaction. The Sharmas were real estate developers seeking to develop two parcels of land for a Wal- Mart and Toys-R-Us project. On July 19, 1994, Grievant advised Postmaster, Renee Grandberry of the Brawley, California Post Office that he was going to be arrested at his home at 8 :00 a.m. on July 20, 1994. Grandberry testified that Gauna asked for the day off because he did not want to be arrested at the Post Office by federal authorities. Grandberry reported that Gauna told her it all started a couple of years ago and involved the Sharmas. According to Grandberry, Gauna expressed to her that he had been hired as a consultant by the Sharmas to talk with the city manager about the Wal-Mart and Toys-R-Us property deal. The city manager was a godfather to Grievant's child. The Postmaster stated the conversation closed with Grievant mentioning he would be arraigned in San Diego on July 20, 1994. On July 21, 1994, Grievant returned to work. At the start of his shift he met with Grandberry a second time. Grandberry testified Grievant alerted her to the fact the criminal charges involved attempted bribery of the city manager and a city 5
council member. It was Grandberry ' s testimony Gauna expressed he was not going to take the heat alone and had received no money from the Sharmas. The Sharmas were purportedly prepared to pay $50,000 and $250,000 to the city officials to get the subsidy from the city. Two local newspaper articles describing charges were also brought to Grandberry ' s attention. the bribery The articles were dated July 20 and July 21, 1994. Jt. Ex. 19B-E. The two newspaper articles detailed the bribery charges that were set forth in the 23 page federal indictment. The newspaper also reported that Grievant and the Sharmas had pled innocent to the bribery charges. In a letter dated July 26, 1994, Grandberry advised Grievant that she proposed to indefinitely suspend him from the Postal Service. The letter read in relevant part as follows : This is advance written notice that it is proposed to indefinitely suspend you from the U.S. Postal Service effective no sooner than 7 calendar days from your receipt of this notice. There is reasonable cause to believe that you have committed a crime for which a sentence of imprisonment is imposed : UNACCEPTABLE CONDUCT Charge 1 : It has been determined that you have been arrested and arraigned on the charges of conspiracy to bribe an agent working for a local government that receives federal funds. Jt. Ex. 22A. 6
The Union grieved the indefinite suspension. Joan Hurst, Union representative met with Grandberry for a Step 1 hearing on August 4, 1994. Subsequently, Grandberry denied the grievance. Er. Ex. 1. Bruce Lane, Manager, Human Resources, issued a letter of decision on the proposed indefinite suspension. Lane wrote in his letter of August 15, 1994, in pertinent part : By notice of 7-26 - 94, you were informed of a proposal to indefinitely suspend you from the Postal Service. I have given full consideration to all the evidence of record regarding the above referenced action. I note for the record that you did not respond to the charges either in writing or orally. Based on all relevant information at hand, I find the charge fully supported. As such, the effective date of your indefinite suspension will be 8-19-94. In making this decision I find that your actions, subsequent arrest, and indictment constitute reasonable cause to believe that you may receive a sentence of imprisonment for your actions. Based on this fact, your placement into an indefinite suspension status is appropriate. Jt. Ex. 17A. which alleged : The Union filed a Step 2 appeal dated August 17, 1994, Union contentions : Reasons for Grievance : The Notice of Proposed Indefinite Suspension was not issued for just cause. 7
I Article 16 Section 6A of the National Agreement requires that the employer have reasonable cause to believe that an employee is guilty of a crime for which imprisonment can be imposed. Management has no such evidence for even the reasonable cause standard. The "evidence" to support managements claim in this case is based upon two newspaper clippings and the statements of the Postmaster. This certainly cannot carry the burden that management has to show that the grievant could be guilty of a crime. The grievant spoke to Postal Service management at least 2 years ago about the problems that he has recently been charged with. With that knowledge, the employee was allowed to continue working for the subsequent two years, thereby showing that there is no justification for a suspension at this time. The grievant has provided with the Step 2 appeal, several personal recommendations from upstanding members of the community attesting to his character. Corrective Action Requested : The Notice of Proposed Indefinite Suspension dated July 26, 1994 be rescinded and the grievant be made whole for all lost wages and benefits. Jt. Ex. 13B & C. The Postal Service denied the grievance at Step 2. Jt. Ex. 2, pp. 7A & B. The Union moved the case to Step 3 where it was again denied by the Postal Service. The Union requested arbitration on January 6, 1995. A hearing was held at which time both parties were accorded the full opportunity to present evidence and argument in support of their respective positions. Grievant Gauna resigned from the Postal Service effective July 3, 1995. Gauna did not testify at the arbitration hearing 8
t because he is currently in jail after being convicted in early 1995 of the charges set forth in the indictment. The issue in this case concerns whether Postal Service properly placed Grievant on indefinite suspension pending resolution of the criminal charges. The parties entered into twenty-seven written stipulations regarding this case which read : Stipulations to the arbitrator concerning the Notice of Proposed Indefinite Suspension dated July 26, 1994 and the Letter of Decision dated August 15, 1994 are as follows : 1. Mr. Gauna ' s Postal Service seniority date is 6/28 / 69. He has 4 years of prior military duty. 2. He had no discipline on record at the time of the Indefinite Suspension. 3. He was President of Branch 2704, NALC, Brawley, CA. from 1987 until the time of the indefinite Suspension. 4. On July 27, 1994, Postmaster Grandberry issued the Notice of Proposed Indefinite Suspension, dated July 26, 1994, to the grievant. 5. On July 28, 1994, Local Business Agent Joan Hurst requested copies of any and all information that the employer had at the time of issuance of the Indefinite Suspension. 6. On July 29, 1994, Thomas R. Avey responded to that information request and provided 2 newspaper articles from the Imperial Valley Press and a statement that Postmaster Grandberry had verbal information on the charges. 7. There was no Postal Inspectors investigation or memorandum. 9
8. On August 4, 1994 a Step 1 grievance was filed by Joan Hurst with Postmaster Grandberry. 9. On August 11, 1994, Mr. Avey requested to interview the grievant. Joan Hurst responded back by letter that same date asking for written questions in advance. 10. On August 12, 1994 the Step 1 grievance was denied. 11. On August 15, 1994, Bruce Lane issued a Notice of Decision on the Proposed Notice of Indefinite Suspension. The grievant was Indefinitely Suspended as of August 19, 1994. 12. On August 16, 1994, Mr. Avey requested a copy of the indictment ; a statement from the grievant regrading his involvement and any other indictments that might have been brought against the grievant. 13. On August 17, 1994, Joan Hurst filed the Step 2 appeal. 14. On August 18, 1994, Joan Hurst responded to the August 16, 1994 information request from Mr. Avey. The issues of just cause ; burden of proof and proper investigation were raised at this time. 15. On August 24, 1994, Mr. Avey responded to Joan Hurst ' s letter of August 18, 1994. 16. On August 25, 1994, Mr. Avey provides a copy of the indictment to Joan Hurst. 17. After several meetings regarding this case, on October 13, 1994, a Step 2 decision was rendered by Wanda Freeman, Labor Relations Specialist, whereby she denied the grievance. 18. On October 20, 1994 the grievance was appealed to Step 3 of the grievance procedure. 19. On October 24, the Step 2 parties agree that the grievant can use any annual leave that he may have on the books 10
without prejudice to either parties position. 20. On December 13, 1994, Mr. Avey and Mr. Peralta met at Step 3 of the grievance procedure and the case was denied at Step 3 by letter dated December 16, 1994. 21. On January 6, 1995 the case was appealed to arbitration. 22. Sometime in January the grievant's case was presented in court and resulted in a hung jury. 23. The District Attorney's Office retried the case and towards the end of February, the grievant was found guilty of all charges. The case has been appealed by the grievant ' s attorney. 24. 25. The grievant is currently at the Metropolitan Correctional Center in San Diego. 26. On June 26, 1995 the grievant was sentenced to 33 months jail time with credit for time already served. 27. The grievant resigned from the Postal Service effective July 3, 1995. Jt. Ex. 2A & B. At the arbitration hearing counsel also stipulated that in the event the Arbitrator sustained the grievance, the period for which back pay might be due would run from August 19, 1994, through March 24, 1995. Post - hearing briefs were timely filed by counsel in support of the facts presented at arbitration. The case is now properly before the Arbitrator for decision. 11
IV. POSITIONS OF THE PARTIES A. The United States Postal Service The Postal Service begins by noting that it is undisputed that Gauna was arrested, arraigned and indicted for criminal charges which carry with them the possibility of imprisonment if he were found guilty. It is further undisputed that Grievant was eventually found guilty of the crimes for which he was arrested, arraigned and indicted. During this arbitration, the Union did not attempt to convince the Arbitrator that the Grievant was innocent of the charges. Based on the evidence in this case, the Arbitrator should conclude that Postmaster Grandberry had reasonable cause Grievant could be guilty of a crime for which a sentence of imprisonment could be imposed when she issued the indefinite suspension letter dated July 26, 1994. The Postal Service relied extensively on the arbitration awards of arbitrators Leventhal and Zack. In Case No. W7C-5R-D 24318, arbitrator Leventhal wrote as follows : Absent Article 16.6, or some similar clause, it is well established that unless an employer can show some nexus between off-duty conduct and the employee's ability to perform their job duties, an employer may not discipline or discharge. Article 16.6 is clear on its face. The Postal Service need not demonstrate nexus or publicity to place an individual on indefinite suspension for a crime situation. Not before me is the propriety or fairness of Article 16.6. I find the language clear and unambiguous and it has been consistently 12
construed by regional and national arbitration awards..... How the Postal Service meets the test of reasonable cause to believe is subject to evaluation on a case -by-case basis.... Er. Brief, pp. 4, 5. as follows : Arbitrator Zack explained in Case No. E4R-2W-D 2177, 2178 The issue involved in the suspension is Lt* whether the employer should have more accurately foreseen the grievant ' s acquittal ; or whether it was required to conduct a fullfledged investigation with interrogation of all the relevant witnesses. Rather the issue is whether on the basis of the investigation it did conduct and the evidence it then had it had just cause for the suspension.... Award, p. 8. The Postal Service interprets the above two cited rulings for the proposition that reasonable cause exists in those cases where there is no dispute the employee was arrested, arraigned and indicted for a crime that carries with it the possibility of imprisonment, and that some form of corroboration exists for verifying the information. The Postal Service closed in its post-hearing brief by stating : The Service sees this case as straightforward, with little dispute. The Service believes that reasonable cause existed for Management to believe the grievant to be guilty of a crime for which a sentence of imprisonment could have been imposed. 13
On or about July 21, 1994, the grievant admitted to the Postmaster that he had been indicted, arraigned and arrested on Federal charges on July 20, 1994. There was no controversy over the arrest as he admitted he had been arrested. There was no controversy over the arraignment proceedings as he admitted to being arraigned. There was no controversy over the indictment as he admitted being indicted. There was no dispute that based on the events that occurred on July 20, 1994, both the grievant and the Postmaster believed that these "crimes" reasonably could have resulted in imprisonment. There was unrefuted testimony from the Postmaster that the grievant informed her of all of the above upon his return to the office on or about July 21, 1994. Acting on this information, when coupled with corroboration from the newspaper clippings, met the reasonable cause standard contained in the CBA and warranted the Indefinite Suspension. Brief, p. 7. B. The National Association Qf Letter Carriers The Union takes the position that the placement of Grievant in an indefinite suspension status on July 26, 1994, was not in compliance with Article 16, Section 6 of the National Agreement. According to the Union, the Postal Service did not have reasonable cause to place the Grievant in an indefinite suspension status, and should have allowed him to work during the time frame during which his case was being heard through the criminal justice system. The Union offered three primary arguments in support of its position that the Postal Service erred in placing Grievant in an indefinite suspension status. First, the Union maintains that management must meet both the reasonable cause and the just cause standard of Article 16. Arbitrator Carlton Snow in Case No. W8C-5D-D-12376 held that 14
accusatory documents, standing alone, are not sufficient to establish a reasonable belief of an employee 's guilt. Snow reasoned it is necessary for management to conduct an investigation in order to establish its "reasonable belief" of an employee's guilt. Arbitrator Rimmell in Case No. E4N - 2N-D 49053 found that a charge of a crime is not synonymous with being found guilty of such crime, nor does it represent a sound contractual basis to conclude that reasonable cause existed to believe the employee was guilty of a crime for which a sentence of imprisonment could be imposed. Cohen, NC-C-7345- D ; S1N - 3W-D 28739 ; C8C-4B - D 13527. Based upon the cited rulings, the Union submits that the Postal Service in this case has not met either the reasonable cause standard or the just cause standard necessary to suspend Gauna under Article 16, Section 6 of the National Agreement. Second, the Union argues that the service did not have sufficient knowledge to suspend Grievant to invoke Article 16, Section 6 of the National Agreement on July 26, 1994. Postmaster Grandberry had read two news articles about the criminal charges in the imperial Valley Press dated July 20 and 21, 1994. The only other knowledge the Postal Service had of this case was information that the Grievant gave to Postmaster Grandberry on July 19 and 21, 1994. In those conversations Grievant told Grandberry that he was going to be arrested and briefly explained the circumstances surrounding his impending arrest. After Gauna's court appearance on July 20, 1994, he returned to work and talked with Grandberry concerning the court 15
appearance. Grievant told her that he had to go to court again on July 25 in San Diego. Grandberry approved annual leave for that court date. Gauna told her that he was arraigned on bribery charges and that someone was trying to hang him for the last two years and he was not going to take it alone. After Grievant had finished his route on July 26, 1994, Grandberry took Gauna into the office and notified him that he was being placed on indefinite suspension. At no point did Gauna admit --to Grandberry--his guilt to the charges. During cross examination at the arbitration hearing, Grandberry testified she never asked Grievant if he was guilty or innocent of the charges, nor did she take additional investigatory steps. The postal inspectors were never called to investigate Grievant's case. Further, Grandberry did not request any court documents from the Grievant, speak with his attorney or call the prosecuting attorney who was handling the case. The Postal Service never conducted an independent investigation of the charges levied against this employee. Moreover, after Grievant was suspended, Postal Service representative Tom Avey wrote to Union representative Joan Hurst seeking information about Gauna ' s criminal case. Avey sought copies of any court documents, Gauna's plea, and copies of any additional indictments brought against Gauna. The Union reasons this request demonstrates the Postal Service had no evidence concerning Grievant's legal difficulties prior to his being placed on indefinite suspension. The Postal Service has the obligation to 16
investigate prior to taking any action under Article 16, Section 6. Weisenfeld Case No. N1N-1E-D8922 ; Rimmell Case No. E4N -2N-D-49053 ; Snow Case No. W8C-5D- D-12376 ; Fasser Case No. NC -S-5849-D ; Feldman Case No. C8C-4B-D 13527. The Union submits the Postal Service based its action in this case on two newspaper articles. Thus, the Arbitrator should hold the Postal Service did not have "reasonable cause to believe" or "just cause to suspend " because there had not been a prior and Proper investigation necessary before placing Grievant on an indefinite suspension. Third, the Union avers there would have been no negative impact on the Postal Service if management had allowed Grievant to work during the processing of his criminal court case. In the view of the Union, the Postal Service should have allowed Grievant to work during the processing of his court case because the Postal Service has not carried the just cause burden in this case. The Union next cited a four step test enunciated by arbitrator Seidman in Case No. C1N-4E-D 26217. In Case No. C1N-4E- D 26217 Seidman stated : a. It must be based on "reasonable cause" to believe the employee has committed a crime for which imprisonment may be imposed. b. A nexus must exist between the alleged crime and the employee ' s position. C. Its penalty imposed must be reasonable. d. The suspension must be temporary. An indefinite suspension to be valid must meet all four requirements. Brief p. 17. 17
Applying the above stated principles to the instant case, the Union argues the Postal Service did not meet the four criteria necessary to indefinitely suspend an employee in a crime situation. The Postal Service conducted no independent investigation of the charges against the Grievant prior to the issuance of the indefinite suspension. There was no nexus between the alleged crime and Grievant's position in the Postal Service. The sevenmonth suspension was not reasonable in that the Grievant never broke a rule or regulation of the Postal Service, nor did he cause any harm to the Postal Service. A seven -month suspension is not temporary. Returning to the Postal Service's position that the two newspaper articles and the verbal information the Postmaster received from Grievant were sufficient to justify their action, the Union argues this evidence was insufficient under Article 16, Section 6, and the arbitration decisions interpreting this provision. Nor can the Postal Service rely on information it receives after it made its initial decision to suspend this Grievant. The fact that Grievant was eventually found guilty of the criminal charge does not prove the employer's position in this case. The Postal Service should not be permitted to reason backward from the court's later finding of guilt that management had "a reasonable cause to believe " in the employee's guilt at the time it imposed an indefinite suspension. A reasonable belief had to exist at the time of the suspension. 18
Therefore, the Arbitrator should conclude the Postal Service was in violation of Article 16, Section 6 of the National Agreement when it placed Grievant on indefinite suspension on July 26, 1994. The Union respectfully requests that Grievant be made whole for all lost wages and benefits. V. DISCUSSION AND FINDINGS The Arbitrator finds the Postal Service failed to prove that it had reasonable cause to believe on July 26, 1994, Grievant Gauna was cruilt y of a crime for which a sentence of imprisonment could be imposed. The record evidence established Postal Service did not act pursuant to Article 16, Section 6(A) when it placed Gauna on indefinite suspension. Accordingly, the Arbitrator will enter an award sustaining the grievance. The reasoning of the Arbitrator is set forth in the discussion which follows. Article 16, Section 6(A) expressly grants to the Postal Service the contractual right to suspend an employee if there is reasonable cause to believe he or she is guilty of a crime for which a sentence of imprisonment can be imposed. First, it is important to keep in mind that a criminal proceeding is separate and distinct from the grievance procedure contained in the National Agreement. The fact that an employee may be charged with a criminal offense does not mean that employee is guilty of the criminal charge. Until the charge is adjudicated in the courts, that person is considered innocent of the criminal charges until proven guilty on the basis of reliable evidence. 19
Second, the Collective Bargaining Agreement between these parties has specifically granted to the Postal Service the right to suspend an employee, if arrest and arraignment provide reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed. The application of a Section 6 suspension in a crime situation is in no way dependent on the guilt or innocence of the employee in the criminal courts. Section 6 is a contractual provision which expressly grants to the Postal Service the power to indefinitely suspend an employee in a crime situation until the criminal charges are finally adjudicated. In other words, it is an option which grants discretion to the Postal Service to suspend an employee during the period between the charge of criminal wrongdoing and the final determination of guilt or innocence. Section 6 does not require the Postal Service to suspend every employee accused of a crime. The operative word used in Section 6 is "may" suspend the employee in a crime situation. The decision to suspend or not to suspend depends on the facts and circumstances arrived at after a Postal Service investigation of the charges, and conclusions to be drawn from that investigation. A close reading of Article 16, Section 6 reveals this employer is obligated to go beyond the mere fact of the arrest and arraignment of a Postal Service employee, prior to implementation of an indefinite suspension. The Union is correct that arrest does not automatically trigger the implementation of Section 6. The Postal Service must have some reliable proof the arrest is based on 20
reasonable cause that the employee has committed the charged offense. This may include an examination of the relevant court documents, as well as interviews with the employee and law enforcement officials. Further, the Postal Service is obligated to follow-up on information provided by the employee and/or law enforcement officials which may offer mitigating circumstances. Moreover, it is important to note the Postal Service does not have to duplicate the police investigation in order to utilize Article 16, Section 6. Nor does the Postal Service have to produce evidence to demonstrate Grievant was actually guilty of the criminal offense beyond a reasonable doubt. The contract test is "reasonable cause to believe an employee is cruilty of a crime for which a sentence of imprisonment can be imposed." Emphasis added. In other words, the Postal Service must have facts beyond the mere charge and arrest of the employee, to lead a person to the reasonable belief the employee is guilty of the criminal charge. Numerous Postal Service arbitrators have held that an employee's guilt cannot be presumed because criminal charges have been filed. To adopt the Postal Service interpretation would convert Article 16, Section 6 to read, "when an employee is charged with a crime the Postal Service may suspend the employee for which a sentence of imprisonment can be imposed." Emphasis added. However, that is not the language the parties included in Article 16, Section 6. The parties to the National Agreement have required something more of the Postal Service, in order to refute the 21
presumption of innocence, and suspend the employee simply because criminal charges have been filed against an employee. Applying the above stated principles to the instant case, the Arbitrator concludes Postal Service did not have reasonable cause on July 26, 1994, to believe Grievant was guilty of a crime for which a sentence of imprisonment could be imposed. While the charge against Grievant could result in imprisonment, that is only part of the test which permits management to suspend the employee in a crime situation. All that Postmaster Grandberry knew on July 26, 1994, was that Grievant had been arrested and arraigned on the charges of conspiracy to bribe an agent of a local government that received federal funds. The source of Grandberry ' s knowledge were two newspaper reports and conversations the Postmaster had with Grievant. It is important to note that in those conversations all that Grievant told Grandberry was that he was to be arrested and arraigned on federal bribery charges. Grandberry testified that Grievant made no admissions to her concerning the charges. All Gauna did was to confirm the allegations reported in the newspaper. Grandberry stated she never saw the actual indictment until two weeks after she indefinitely suspended Grievant. Postmaster Grandberry next testified that she had no concern about the integrity and sanctity of the mail because of the criminal charges filed against Gauna. According to Grandberry, Grievant was a good employee. Nor did Grandberry state that at the 22
s time she issued the indefinite suspension that adverse publicity played a role in her decision to suspend Gauna. The notice of suspension charged Grievant with unacceptable conduct. The unacceptable conduct cited by Grandberry was stated to be : Charge 1 : It has been determined that you have been arrested and arraigned on the charges of conspiracy to bribe an agent working for a local government that receives federal funds. Emphasis added. Jt. Ex. 2, p. 22(A). The testimony of Grandberry reflects that as of July 26, 1994, all she knew was that Grievant had been arrested and arraigned on federal bribery charges. No independent investigation had been conducted by Postal Service management or the postal inspectors as of July 26, 1994. The bottom line is that Gauna was placed on indefinite suspension based exclusively on the fact he had been "arrested and arraigned " on federal bribery charges unrelated to his work as a letter carrier. The Postal Service's limited reasons for the indefinite suspension were confirmed in the Step 1 denial of the grievance. Manager Lane wrote in relevant part : By notice of 7-26-94, you were informed of a proposal to indefinitely suspend you from the Postal Service. I have given full consideration to all the evidence of record regarding the above referenced action. I note for the record that you did not respond to the 23
charges either in writing or orally. Based on all relevant information at hand, I find the charge fully supported. As such, the effective date of your indefinite suspension will be 8-19-94. In making this decision I find that your actions subsecuen t arrest nd indictment constitute reasonable cause to believe that you may receive a sentence of imprisonment for your actions. Based on this fact, your placement into an indefinite suspension status is appropriate. Jt. Ex. 2, p. 17 (A) ; emphasis added. It is clear from Lane ' s letter that it was the arrest and indictment alone that caused the suspension. In a letter dated August 24, 1994, from Tom Avey, Senior Labor Relations Representative, to Joan Hurst National Business Agent, Avey wrote, "Mr. Gauna was placed into an indefinite status based on his arrest and indictment regarding federal charges." Jt. Ex. 2, p. 10 ( A). Wanda Freeman, Labor Relations Specialist, answered the grievance at Step 2 stating : In this case, the reasonable cause standard to believe the Grievant was guilty, was utilized when the Grievant was arrested and arraigned. it. Ex. 2, p. 7(A). The Postal Service's position was confirmed again at Step 3 with the additional reference to the written indictment. Therefore, the Arbitrator must conclude from a review of the documents Postal Service placed Grievant on indefinite suspension based exclusively on the arrest and arraignment of Gauna. 24
In evaluating this case, it is critical to note the conduct which resulted in the criminal charges occurred while Grievant was off duty. Where the cause for the discipline arises from off -duty conduct, the Postal Service is traditionally required to show a nexus between off-duty conduct and the business of the Postal Service. No attempt was made by Grandberry to link Grievant' s alleged criminal activity to his work as a letter carrier. Grandberry testified she was not concerned with the integrity or sanctity of the mails because of the criminal charges. Absent from this record was any evidence showing the arrest had rendered Grievant unable to perform his work as a letter carrier. The only public notice known to Grandberry was the newspaper article which referred to Gauna as being a postal worker. The Arbitrator finds nothing in the record demonstrated Grievant's arrest made him a threat to Postal Service or the public. The two arbitration decisions cited by the Postal Service in support of its position were not helpful to the Postal Service in the instant case. In Case No. E4R -2W-D 2177, 2178, the employee was charged with sexual abuse of a minor which received considerable public notoriety. The postal inspectors were called in and conducted an investigation prior to the imposition of the indefinite suspension. In Case No. W7C-5R-D 24318, the postmaster followed up on the criminal charges with his own investigation. The arbitrator's opinion reflects the postmaster went to the police station and reviewed police records and spoke with a police officer handling the case. Further, the postmaster learned of physical 25
} evidence seized from the employee ' s residence and also examined and obtained copies of court documents. None of the above type of investigation was conducted in the case before this Arbitrator. Based on the above stated decision, the Arbitrator holds that on July 26, 1994, the action of the Postal Service was premature and without a sufficient factual basis to provide the Postal Service with reasonable cause to believe Grievant Gauna was g iu lty of a crime for which a sentence of imprisonment could be imposed. Therefore, the Grievant is entitled to be made whole for all wages and benefits lost during the period of the suspension. The question of reinstatement is not before this Arbitrator since Gauna resigned from the Postal Service effective July 3, 1995. 26
A The Postal Service violated Article 16.6 when it imposed an indefinite suspension on Grievant Gauna on July 26, 1994. The Postal Service is ordered to make Grievant whole for all wages and benefits lost. Pursuant to the stipulation of the parties, the period for which Grievant Gauna is due back pay runs from August 19, 1994, through March 24, 1995. The grievance is sustained. Respectfully submitted, N~~ Gary L. Axon Arbitrator Dated : November 27, 1995 27