USPS-NALC ARBITRATION PANEL SOUTHERN REGION WILLIAM …mseries.nalc.org/c05685.pdf ·...

USPS-NALC ARBITRATION PANELSOUTHERN REGION

WILLIAM J . LeWINTER , ARBITRATOR

IN THE MATTER OF ARBITRATBETWEEN 1

UNITED STATES POSTAL SERVICE i(Miami, Florida) !Case Nos . S*N-3W-D 4915

S4N-3W-D 8429-AND- !Record Closed :December 21, 1986

!Arbitrator File No . 1090NATIONAL ASSOCIATION OF LETTER

RIERS, (Tropical Branch 1071)

CJ F= I IV I C P4 flisiID A(4€ tRn

Representing the Employer :Daniel Smith, Labor Relations AssistantPeter Marcous, Labor Relations Representative

Representing the Union :Matthew Rose , PresidentTropical Branch 1071, NALC

Preliminary Statement

On 1985, the Union filed a written griev-

ance on behalf of Robert R . Reed, at No . SIN-3W-D 4915,

eging the Employer violated the parties' colle

gaining agreement by issuing g ant a Notice of Proposed

Removal without, just cause , issuing discipline that was

punitive and rendering disparate treatment . Another griev-

ance was filed on behalf of the same employee at No . S4N-3W-

D 8429, alleging the employer violated the said agreement by

the previously stated intent to discharge and

issuing grievant a Notice of Decision without just cause

and other allegations similar to that of the first griev-

ance. The two grievances , arising out of the same factual

matters , were combined for hearing . The parties, being

;.enable to resolve the matter, assigned it to arbitration .

Hearing was held before William J . leWinter, Panel Arbitra-

tor, at Miami, Florida, on November 26, 1995, at which time

the parties were accorded full opportunity to present wit-

nesses for direct and cross examination and such other evi-

dence as was deemed pertinent to the proceedings . At the

hearing, the parties stipulated that both grievances were

properly before the arbitrator . The record was closed on

December 21, 1995, at which time all briefs filed by any of

the parties were received . From the evidence adduced at the

hearing, the arbitrator makes the following :

As o

Findings of Fact

January 2, 1985 . grievant was a c at the

3ratigny Branch Pos t Office . He had been hired August 28,

1979 . His past record demonstrates a letter of Warning,

Seven-day Suspension and 14 day Suspension, all for failure

t.o meet attendance requirements, the latest being November

', 1984 . On August 13, 1934, grievant was admitted to the

Veterans' Administration hospital for alcoholism . According

-to hiss, testimony, and other evidence presented, he has not

been drinking since and has participated in the VA dependen-

cy program . During October and November, 1984 grievant was

treated for problems with his prostate gland .

On January 2 1985, grievant was working in the office

because his special service drivers license had been sus-

pended . While sorting flats, grievant was seated on a stool

with his legs stretched out, resting on a lower ledge of the

case to form a working table on his legs . In this position,

he was sitting behind Carrier McCool whom he was assisting .

Carrier Mr-Cool was standing at the case sorting mail .

Supervisor Stuart Mills came up to grievant and asked him if

he thought he was "on vacation or at a country club" .

Grievant responded to let him alone and do his work. Super-

Mills stated he would show grievant the proper method

to sort the fiats and went to look for U-carts to form a

table at which he could stand and work . Mr . Mills never

stated to grievant that his position was unsafe or against

postal regulations .

When he returned , the supervisor made additional sar-

stic remarks concerning grievant's position . Grievant

ery emotional and accused the supervisor of trying

to cost him his job and told the supervisor to leave him

alone or he would hurt the supervisor . Grievant stated he

could not work under such circumstances and began to look

for a Form 3971 to leave- Acting Manager Violet Murphy

viewed part of the situation upon returning from her lunch

break . When grievant decided to leave, she did not call

police . She was told by grievant that he would hurt Mr .

Mills . Grievant was speaking to Mills by addressing her .

Grievant had previously been referred to the Employee

Assistance Program (formerly PAR) . Ms. Murphy checked with

ce and found that grievant had not participated

oyer's program. Ms. Murphy then requested per-

sion to issue a discharge based on her claim that griev-

ant was unstable and dangerous to have in the vicinity with

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other workers .

Concurrence in the request for permission to issue a

issal was signed by Jose Rivera, Manager of Stations and

Branches . Mr. Rivera testified that he made no independent

nvestigation and did not speak with the grievant before

concurring in the discharge . He stated his function was

take the events told him by the supervisors and converse

with his superior .

On January 24, 1985, Ms . Murphy issued a Notice of

Proposed Removal alleging , in pertinent part :

On January 2, 1985, at approximately 12 :00 P .M .,you became - angry after supervisor Stuart Millsinstructed you to stand up and do your job. Mr .Mills i nstructed you to stand up due to the factyou had been sitting down on a stool with yourfeet propped up on the hold tray at route 06754 .You then told Mr . Mills in a very loud manner,that he better leave you alone . You also told Mr .Mills that he was trying to cause you to lose yourjob. You then told me that he was trying to causeyou to lose your job . You then told me in a loudvoice that I had better tell Mr . Mills to leaveyou alone or you would have to hurt him. Youstated further that you were going home as youcouldn't work under the conditions , and also stat-ed that you were going to hurt Mr . Mills. At thistime, you walked over to the stand -up desk andlooked for a PS Form 3971 . After you located apad of PS form 3971' s, you turned towards Mr .Mills , pointed your finger at him and stated thati f he did not leave you alone or i f he cost youyour job, you were going to hurt him. Conduct ofthis nature cannot be tolerated . You are chargedwith threatening a postal supervisor with bodilyharm in the performance of his duties .

Thereafter, the Notice recites the three previous disci-

plines relating to absence . The first grievance, No. SiN-

3W-D 4915 was filed alleging :

Grievant was issued a Notice of ProposedRemoval dated Jan . 24, 1985, that charged him withthreatening a supervisor with bodily harm in the

performance of his duties . The Union and thegrievant contend that this action is totally un-warranted and punitive rather than corrective innature. Management has failed to comply withSections 115 of theM39 Handbook and 374 of theEmployee and Labor Relations Manual . The Unionalso contends disparate treatment is evident assimilarly situated employees were not treated in asimilar manner under similar circumstances . Theactions of the supervisor involved were both in-timidating and threatening and instigated a verbalconfrontation . There was no just cause for theissue of this action . The Union objects to thereferral of prior elements not related to thecharges cited .

On March 11, 1985,. W. P. Stokes, Manager of Delivery

and Collection issued a Notice of Decision - Proposed

Removal to grievant stating, in part :

By notice of January 24, 1985, you were informedof a proposal to remove you from the Postal Ser-vice. I have given full consideration to yourverbal response of February 28, 1985, and allother evidence of record . I find, however, thatthe charge is fully supported by the evidence andwarrants your removal .

You failed to provide me with any reasons or sup-port to mitigate this action . It has been longupheld that the threatening of a supervisor di-rectly affects the efficiency of the service ad-versely. Your threats were made in the course ofthe supervisor's duties, while on postal premises,and in hearing distance of other employees . Suchacts cannot be tolerated . Additionally, althoughthe past elements are for matters not relative tothe issue in this removal, the long history ofdiscipline indicates an unsatisfactory work his-tory with the Agency. It must be noted that youractions as outlined in the proposed action warrantremoval for a first-time offense . This removalaction will be effective March 18, 1985 . In mak-ing this decision, I have considered the elementsof past record .

The second grievance , No . S4N-3W-D 8429, was filed alleging

matters similar to the previous grievance .

The Union submitted several instances of discipline

rendered to other employees for threats made to supervisors

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with penalties ranging from Letter of Warning to 14 day

Suspensi on .Contract Provisions

ARTICLE 16

DISCIPLINE PROCEDURE

Section 1 . Statement of Principle

In the administration of this Article, abasic principle shall be that discipline should becorrective i n nature, rather than punitive. Noemployee may be disciplined or discharged exceptfor just cause such as, but not limited to, insub-ordination, pilferage, intoxication (drugs oralcohol ), incompetence, failure to perform work asrequested, violation of the terms of this Agree-ment, or failure to observe safety rules and regu-lations . Any such discipline or discharge shall besubject to the grievance-arbitration procedureprovided for in this Agreement, which could resultin reinstatement and restitution, including backpay-

Suspensions of More ThDischarge

In the case of suspensions a+ more than fourteen(14) days, or of discharge, any employee shall,unless otherwise provided herein, be entitled toan advance written notice of the charges againsthim/her and shall remain either an the job or onthe clock at the option of the employer for aperiod of thirty (30) days . Thereafter, the em-ployee shall remain on the rolls ( non-pay status)until the disposition of the case has been hadeither by settlement with the Union or throughexhaustion of the grievance-arbitration procedure .A preference eligible who chooses to appeal asuspension of more than fourteen ( 14) days or hisdischarge to the Merit System Protection Board(MSPB) rather than through the grievance-arbitra-tion procedure shall remain on the rolls (non-paystatus ) until disposition of the case has been hadeither by settlement or through exhaustion of hisMSPB appeal . When there is reasonable cause tobelieve an employee is guilty ' of a crime for whicha sentence of imprisonment can be imposed, theemployer is not required to give the employee thefull thirty (30) days' advance written notice in a

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discharge action, but shall give such lesser num-ber of days advance written notice as under thecircumstances is reasonable and can be justified .The employee is immediately removed from a paystatus at the end of the notice period .

Section 8 . Review of Discipline

A In no case may a supervisor impose suspensionor discharge upon an employee unless theproposed disciplinary action by the supervi-sor has first been reviewed and concurred inby the installation head or designee .

***

Di sc ussion

The Union raises a basic question of concurrence . As I

have had occasion to state in United States Postal Service,

Tampa, Florida and HALE, Branch 599, Case Nos . SIN-33W-D

45373 and SIN-3W-D 46383 (1985) :

Concurrence by a higher official is mandatorybefore the Employer can issue any suspension orbefore it can issue a discharge. The language isas follows, in Article 16 :

Section 8 . Review of DisciplineA In no case may a supervisor impose

suspension or discharge upon an employeeunless the proposed disciplinary actionby the supervisor has first been reviewedand concurred in by the installation heador designee .(Emphasis supplied .)

***

Concurrence is not a mere "rubber-stamp"action by upper level supervision . It requires adegree of separate action by the concurring super-iorr to "review" the discipline . . . (pp . 15, 16)

In that prior case, there was no concurrence demonstra-

ted. In this case, thesupervisor had Area Manager sign as

the concurring officer . Mr . Rivera testified that he made

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no attempt to investigate the case and did not speak with

the grievant or obtain his viewpoint on the affair . He

relied upon what his supervisors told him and what he saw in

the records .

To that point, Mr . Rivera did not incorrectly state the

concept of concurrence. The requirement to "review" does

not mean that at each level of supervision a separate inves-

ation of all the facts must be undertaken . The require-

meat is for an upper level supervisor to check the records,

isfy himself there is sufficient cause in the record for

di.sciplin to issue and that the level of disciplinary pen-

is proper in accord with the record . If he i s wrong,

or if the record or lower level vestigation is improper,

grievance procedure is present to correct the situation .

The concurrence requirement is to "review(ed)" . That

an affirmat act. Signature without that affirmative

ould have no meaning. The obvious intent is for the

iewing official to have meaningful input in this level of

discipline. Accordingly, Mr . Rivera was required to make

his own decision .

Mr . Rivera testified further, however, that not only

was he not to investigate but, to him, "review" meant to

take the matter to his superior . This is not the case. The

purpose of concurrence is for the concurring officer to take

action . He must make a decision based upon his knowledge

and determine if the requested' discipline should or should

issue . His signature on the request for discipline

demonstrates that he as made that decision. Mr. Rivera's

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testimony demonstrates that no such decision was made in

this case .. He discussed this matter with another supervi-

sory official who he was unable to identify . His testimony

leaves no doubt that the concurrence was not his but some

other's .. It is not improper for the concurring official to

seek advice , but the final decision, the concurrence, must

be his own decision .

The Employer argues that Mr . Rivera ' s testimony was

sufficient to determine concurrence, especially since he was

olved from the beginning . It was Mr . Rivera Ms . Murphy

called when the events were taking place , and he suggested

having grievant removed from the workplace . The fact that

the concurring official may have some knowledge of the early

facts of the case does not eliminate his obligation, as a

concurring offi i to make the review and take the neces-

sary actions required to accomplish concurrence . Mr . Rivera

hat he believed his function was to call his

superior . He was not sure whom he called . He left no doubt

mind that it was to be the decision of someone else

That was not in accord with the collective bargain-

ing agreement . Accordingly , his act was not a valid concur-

at would result in his signature as the concurring of-

e, and without concurrence , no valid discipline can

issue at this level .

Under those circumstances , no concurrence took place

within the meaning of the contract . The concurring officer

may not evade the obligation of making the decision . Other-

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wise , the requirement_ of concurrence has no viable meaning .

Mr . Rivera's testimony is tantamount to stating that his

nature is his concurrence, regardless of his activity .

actl

The Notice of Proposed Discharge must be concurred

Without actually considering and making a decision, the

" reviewed and concurred in" requirement has no meaning .

Without a proper concurrence , the disciplines must

in . The Letter of Decision is a result of the Proposed

"rubber stamp" decisions .

Discharge . Without the Proposed Discharge, the Letter of

Decision has no meaning . Even if the Letter of Decision is

a review of the matter and the making of a decision by upper

level supervision , that activity cannot correct the concur-

rence required --for theproposed removal . The concurrence

must occur before the rendering of discipline , not after .

The Employer may object that this is a "technicality",

and in truth, i t is. However , concurrence is as much a part

of the collective bargaining agreement as the right to re-

move. The arbitrator may not side-step it because he wor-

ries that the merits might have validity as to the issuing

of discipline . am as bound by the contract as the par-

My personal likes, dislikes or feelings cannot permit

me to evade the responsibility to uphold the agreement . The

facts seem to show that grievant is an unstable i ndividual .

Management has the ability to require him to demonstrate his

fitness for duty under other clauses of the agreement . I

have no right, once finding the issuance of discipline to be

fatally defective , to enter the merits and render a decision

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in relation to the discipline, itself .

Accordingly . I must rule that the grievances be

sustained, and grievant be reinstated . The discipline being

defective, I must order back pay . In addition to back pay,

the Union has requested interest. As I also stated in the

Tampa case, previously cited :

Since the basis of issuance of both disci-plinary actions were faulty , the grievant must bereinstated with full contract rights with backpay. The Union. also demands interest under thedecision at the National Level by Arbitrator Ben-jamin Aaron at Case No . HIN-5-FD-2560. In thatAward, Arbitrator Aaron states, in conclusion :

On the basis of my interpretation ofArticle 16 and Section 436 .11 of the ELM,I conclude that under the National Agree-ment arbitrator' s have discretionary auth-ority to grant or to refuse interest onback-pay awards when sustaining disciplin-ary grievances .

The regional arbitrators are bound by theNational Awards . The Aaron Award authorizes theordering of interest . Whenever an arbitratorutilizes his discretionary powers, those powersmust be exercised within accepted bounds of laborrelation concepts . The grant or denial of inter-est is not at the whim of the arbitrator but athis discretion, an entirely different thing .

An analogy may be made to cases wherein thearbitrator finds a grievant guilty of a disciplin-able offense but must mitigate the penalty theEmployer has issued . Mitigation is also not or-dered in accord with the arbitrator's personalfeelings or desires. It is ordered only after thearbitrator has found the Employer to have abusedits right to determine the degree of discipline .In assessing the amount of discipline to be ren-dered, the arbitrator should utilize the maximumamount he would sustain, not what he would issuehad he been the supervisor involved . There aremany elements taken into account . The grievant'sequitable position in his employment status, theacts committed, the Employer's activity in thecase, etc .

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In this case, the facts, though not material in a dis-

cussion of the merits for reasons set forth above, demon-

strate that grievant has taken actions which could reason-

ably demonstrate that he has placed himself in the position

where he would be disciplined . I do not render a decision

on the merits. I must , however, excercise my discretion

the claim for interest .

as

There may have been some provo-

cation, but he was addressed on the work floor by his super-

visor and acted in a manner not ordinarily expected of a

junior employee. For this reason , I do not believe interest

is warranted in this case .

As to the back pay award , there are many questions

which the parties did not address , awaiting the decision on

the merits . Accordingly, the arbitrator will retain juris-

diction solely over the question of remedy. In the event

the parties are unable to agree concerning these matters,

the arbitrator will hold a hearing thereon, at the request of

either party hereto. .

AWAFt0

The grievances are sustained . `Grievant shall be rein-

stated with back pay but without interest . The arbitrator

retains jurisdiction solely over the question of remedy.

The parties are directed to. discuss the remedy in this case .

In the event they are unable to agree, the arbitrator will

hold a hearing on remedy at the request of either party

hereto.

Respectfully submitted,

int Arbit