--ora, Albuquerque, NMRA-1804D-75 ; NCW3687D~WON1„, RA-1822D-75;NCW3705Dr C.~}SE*~/DRA-2024D-75 ;NCW4225D

e #'a/~3 02 -4 -C3 .In the Platter of Arbitration

between Grievance Pros . W-1219-761i,W-1231-76N, and w-1422-76[ ;

UNITED STATE POSTAL SERVICE ( David R . Mora)

and

NATIONAL ASSOCIATION OF LETTERCARRIERS

APPEARANCES : John H . Arbuckle, Esq ., for the Postal Service ;Joe Z . Romero for the NALC

DECISION

This grievance arose under and is governed by the 1975-76

National Agreement ( JX-1) between the above -named parties . The

undersigned having been designated by the parties to serve as sole

Arbitrator , a hearing was held on 1t October 1976, in Albuquerque,

New Nexico . Both parties appeared and presented evidence and

argument on the following issue (Tr . 16) .

Were the Emergency Suspension , the Notice ofRemoval , and the Decision letter to remove Mr . Morafor just cause ? If not , what is the appropriateremedy?

A verbatim transcript was made of the proceechgs before

the Arbitrator . Each side filed a post -hearing brief . The

record was officially closed on 2 December 1976 .

On the basis of the entire record , the Arbitrator makes

., , v 1Sa,tuu xt, u ttwaru

2 .

the following

AWARD

The Emergency Suspension, the Notice of Removal,and the Decision letter to remove P :r . Pnora were notfor just cause .

Nr . Nora shall be reinstated with full restorationof his seniority, and be made whole for all time lostas a result of his emergency suspension and rerrova_l .

Benjamin Aaron,Arbitrator

Los Angeles, California13 December 1976

In the Matter of Arbitration

between Grievance Nos . W-1219-76N,W-1231-76N, and W-11122-76N

UNITED STATES POSTAL SERVICE (David P . r:'ora)

and

NATIONAL ASSOCIATION OF LETTERCARRIERS

OPINION

I

David R . Mora, the grievant, was employed by the Postal

Service as a part=time flexible carrier from about 1 April 1972

until his discharge effective 21 June 1976 . He actually stopped

work on 22 play 1976, when he was given an emergency suspen-

sion on suspicion of throwing away deliverable third-class

mail .

The events leading to the suspension and subsequent dis-

charge of Mora are set forth in an investigative memorandum

(EX-6) dated 6 May 1976 and signed by Postal Inspector L . C .

Steffey, III . The memorandum reads in part :

1 . On April 21, 1976, a telephone call was receivedat this office from Janet Holling, 5312B3, Justine Drive,Paradise Hills, Albuquerque, NM . Mrs . Holling statedthat on Tuesday, April 20, 1976, while emptying hertrash into a large commercial-type trash receptaclelocated on the street in front of 5310 Justine Drive,she noticed what appeared to be a stack of mail .

2 . Inspectors L . C . Steffey, III and P .J . Carr resppndedto the call and verified Iirs . Holling's suspicions . Thetrash receptacle was checked and located therein were63 pieces of third-class mail individually addressedfrom Goldwater's Department Store . Located in anothernearby trash receptacle were 19 pieces of third-class

2 .

mail from Ortho Lawn Pro :]ucts . It was determined thatthe Ortho mail was for delivery on April 21, 1976,as B'.rs . Holling received a piece of Ortho mail that day .An examination of all this mail disclosed that it wasaddressed to various addresses in the Paradise Hillsarea .

3 . On April 21, 1976, Per . William Kuntz, Manager, AlamedaBranch, was interviewed regarding the discarded mail .Mr . Kuntz examined the mail and indicated that to thebest of his knowledge the mail was all deliverable asaddressed . He stated that the Ortho mail was to bedelivered on April 21, 1976, by David Mora, Part-TimeFlexible Schedule City Carrier, on Route 1402, anauxiliary route out of the Alameda Branch, fir . Kuntzalso examined the Goldwater circulars and stated thismail was for delivery on April 20, 1976, by Mr . Mora onRoute 1402 . Mr . Kuntz stated that David Mora was thedelivering employee on Route 1402 on April 19, 20, and 21,1976 . The aforementioned trash receptacles are locatedon Route 1402 .

4, Due to the above facts, surveillance of Mr . Nora onRoute 1402, was conducted on a daily basis from April22, 1976 through Nay 3, 1976 . He was not observed discard-ing any mail during that time, nor was any mail found inthe aforementioned trash receptacles . However, onApril 23, 1976, a check of the trash receptacle locatednear the Paradise View Apartments, also served by Route1402, disclosed 20 more pieces of the Ortho Mail foundtherein which was for delivery on April 21, 1976, as wellas one second-class publication, Consumer Report magazine .The mail found in the trash receptacle was for deliveryto the Paradise View Apartments which is served by Route1402. Mr . Koib, Manager, Paradise View Apartments,verified that all of the mail with the exception of onepiece of the third-class mail was deliverable to tenantswho occupied the apartments . Mr . Kuntz indicated thismail was also for delivery by Mr . Mora on April 21, 1976 .Mr . Kuntz could not comment regarding the delivery dateof the second-class publication . .

6 . Several patrons, whose mail was found in the trashreceptacles, were interviewed . All those interviewedstated that they did not receive the mail shown to them .

7 . All the mail located in the trash receptacles wag foundtogether in such a manner as to preclude indications oftheft by individuals . Additionally, no one on that routehas reported witnessing theft of mail on those dates . . ,

3 .

On 3 Fay 1976, Pdora, having clocked out, was on his way

home when he was intercepted by 'huntz, who told him that he

should return to the post office, where a postal inspector was

waiting to talk to him . £ora did as he was told and reported

to the postal inspection office immediately . Nora's version

of what occurred during his interrogation differs in a number

of respects from that given by Steffey and Earnest . It is clear

that I+"ora was told the purpose of the interrogation and was

read his "Miranda rights," and that he voluntarily signed a

statement waiving his rights to remain silent and to have an

attorney present . (EX-3) He also executed the following

affidavit (EX-4, 5) :

I David H . Mora being duly sworn depose and state that Ihave been advised of my rights perr the Miranda Decisionand make the following statement freely, voluntarily, withno threats or promise being made and no coercion beingused against me .

I am being questioned by Mr . Steffey and Mr . Earnestconcerning the discovery of approx 100 peices of second& third class mail that was found in trash cans locatedat La Cima Apartments & Club House Rd around 20 - 21April 1976 . The mail was Ortho & Goldwater circulars .

They were for delivery on my appointed route for20 - 21 April 1976 . They were all found in trash recep-tacles previously mentioned, according to the above mentionedinspectors . I recall receiving the circulars and I diddeliver the circulars that were taken on the route on thosedates . I deny throwing the circulars away that were foundby the inspectors on the dates mentioned before or after .

The first paragraph of this affidavit was written by Steffey ;

the last two paragraphs were written by Mora . (EA-4)

On direct examination, Steffey was asked whether he had

adverted to the possibility that Mora might go to jail or

4 .

prision . He replied : "I don't recall using tLose terms .

Durinr, the course of the conversation I may have indicated

that this . . . was] a violation of the Federal law ." (Tr . 57)

Steffey did, in fact, turn over the case to a United States

Attorney, who declined to prosecute on the ground, according

to Steffey, that the evidence against N:ora was purely cir-

cumstantial .

Steffey testified that after f :ora had executed and sworn

to the affidavit, the following conversation between the two

men ensued (Tr . 61-62 ) :

I told him that the matter was going to be pursued, thatI would have to go out on the route and talk to all thepeople that didn't get their mail, and just do this thehard way . It would save everybody a lot of trouble if wejust were honest about everything and cleared the matterup . And he said, "Well, you do what you have to do," andthat was it . I said, "You still -- you didn't --you'r2 saying you didn't throw the mail away?" He said,"That's right ." I said, "O .K . Fine ."

According to Steffey, the meeting lasted from 35 or 40

minutes to an hour . On May 5, Steffey interviewed a total of

eight persons, selected at random, on Mora's route, to determine

whether they had received either the Ortho or Goldwater cir-

culars . He testified that none of the eight recalled receiving

the circulars .

Mora testifed that t' .e interrogation lasted about 2z to

three hours . He stated that Steffey played the role of the

"bad guy," while Earnest was the "nice guy ." According to

Mora, on several occasions Steffey "pointed his finger" and

said : "We know you did [throw away the circulars], and you

knowyouu .did it . . . . Why don't you go ahead and admit it,

5 .

and it would be a big load off your should+,r :: . . LS]o save

yourself time arid admit it ." (Tr . 162_) Pora testified further

that Steffey told him (Tr . 162-63),

"You're thinking of the worst ." . "You're thinkingthat you're going to lose your job ." He says, "Nothinglike that's going to har,nen," he says, "P .r . Pino theAlbuquerque Postmaster] knows about it, we know aboutit," he says, "We'll take that into consideration .However, if you make it hard on us and enforce us toprosecute, and call the U .S . Attorney," and he useda figure, he says, "it's going to cost us approximatelyten thousand ($10,000 .00) dollars to prosecute you,and I can assure you that the U .S . Attorney is going tolook down hard upon this ."

Mora testified that Steffey also told him ( Tr . 164),

"If you don ' t admit it ," he said, "I'm going to takethis mail , and go to the people to see if they receivedit, and it's really going to piss me off ," he said,"because it ' s an embarrassing situation ," he says, "it'sreally going to embarrass me to do it ."

According to Nora, when he refused to admit throwing

away the circulars, Steffey left the room to call the United

States Attorney. In his absence, Earnest pressed Mora to admit

his guilt, and said, "You're thinking . . . that you're going

to lose your `job ; we can assure you that nothing like that is

going to happen ." (Tr . 165)

Earnest, called as a rebuttal witness, testified that

neither he nor Steffey made any promises to Nora that he

would not lose his job if he admitted his guilt . He also

stated that the interrogation had lasted about 45 minutes to

one hour .4

Under cross - examination Steffey testified in part

(Tr . 83) :

6 .

Q Did you say to him, "You know you did it"?

A I believe I did .

Q Did you say to him L[';ora], "vie believe you',ve beendoing it all the time"?

A Yes .

Q Can you tell us how you come to this conclusion?

A It's naturally my own conclusion . If a man --and it's been my experience -- has discarded his mail two(2) days in a row, I believe he has done it prior to that,and would do it after that, also .

Questioned further by the Arbitrator, Steffey stated

in part : "It was my belief at that time that . . . he LMora]

had thrown the mail away ." . Asked if he had made up his mind

about flora's guilt before checking with persons along his route,

Steffey replied, "In my own mind, yes, I felt based on prior

experience with cases like this that I believed he did throw

his mail away ." (Tr . 97-98)

Kuntz testified that flora "was a very good employee .

Prompt in attendance, regular in attendance, he worked hard,

stayed at his case, take perhaps one cup of coffee all morning

long, the rest of the time he continued to work ." (Tr . 114)

At one point in his investigation, Steffey spoke to Kuntz about

Nora's prior record as an employee . Asked if Kuntz had said that

Mora was "a good carrier," Steffey replied, "He said that he

was satisfactory ." (Tr . 98) When he was reminded of this

conversation, Kunz responded, "No, I don't recall using that

specific word satisfactory] . I probably would have used good,

or very good ." (Tr . 130)

For seven, workdays, 22 April through 1 May 1976, Mora

7 .

was under intermittent surveillance of two postal inspectors

during his working hours . They observed no irregularities in

his conduct . Yet on Friday, 23 April, they discovered 2.0

more pieces of deliverable third-class mail in a trash can at

an apartment house on Mora's route . By way of explanation,

Steffey suggested that I•'ora must have discarded the circulars

on Wednesday, 21 April .

On 21 Nay 1976, iv?ora was sent a written notice of

emergency suspension (JX-2) signed by Jose Hey, Sectional Center

Director, Customer Services . On the same date, Hey sent t:ora

a notice of charges-removal . (JX-2) Grievances were filed on

both proposed actions . On 16 June 1976, Postmaster Richard J .

Pino issued his decision upholding both the suspension and

the removal of Nora . (JX-2_) That decision, also, was made

the subject of a grievance . All three grievances were denied,

and all were appealed to arbitration .

The suspension and removal were initiated by Arthur

DeLaO, Sectional Center Director for Employee and Labor

Relations . DeLaO testified that he had reviewed all the evidence

and had discussed it with Rey and with Pino before making his

respective recommendations to them . He stated that he had been

forced to conclude that Mora was guilty of throwing away

deliverable third-class mail because the latter's explanation

that he had delivered all mail taken by him from the postA

office was "contradictory to the evidence ." (Tr . 134)

II

An important factual question in this case is how much

C' .

mail Toro :.ctually took from the post office on 20 and 21

April .

in his affidavit executed during his interrogation PL:ora

stated, in reference to "approx 100 pieces of second & third

class mail that was found in trash cans . . around 2.0-2.1

April 1976 LOrtho and Goldwater circulars]," that "They were

for delivery on my appointed route for 20-21 April . . . . I

recall receiving the circulars and I did deliver the circulars

that were taken on the route on those days . I deny throwing

the circulars away that were found . . . on the date mentioned

before or after ." (Underscoring added)

In his investigative memorandum Steffey wrote in part :

He Lt1ora] stated that he was the delivering employeeon Route T02 on April 20 and 21 . . that he did havethe aforementioned mail for delive ry on those dates andthat he delivered all the mail to the patrons on hisroute . (Underscoring added)

Both Steffey and the Postal Service construed F.!ora's

statements as an admission that he had taken all the approximately

100 circulars on his route on 20 and 21 April, and they rejected

the possibility that the mail that Nora said he delivered could

have been thrown away by someone else .

In his testimony at the hearing, however, tora suggested

several other possibilities . He recalled that the Ortho and

Goldwater circulars were received at the post office on Sat-

urday, 17 April . Asked if Kuntz had instructed the carriers

that the circulars should be delivered on 20"or 21 April, rora

replied in the negative . He explained : "Mr . Kuntz never

bothered a carrier, or . . said, 'You will take this,' or

9 .

'you take that' . . . . If we couldn't, we wouldn't, and I

didn't on that particular day ." (Tr . 168-69) biora testified

that he had not taken from the post office on 20 April all the

Goldwater circulars assigned to him . He stated that he had

left an unknown number of them behind in a hamper under his case .

Asked why he had left them behind, he replied, "Because this

was an auxiliary route, he LKuntz] wanted that kept to seven (7)

hours, and no overtime given, and if I delivered all the cir-

culars that would have involved overtime, and I wasn't authorized

overtime ." (Tr . 179 ) He denied telling the postal inspectors

or stating in his affidavit that he had delivered all the circu-

lars, insisting that "I didn't say all mail, I said I delivered

what was taken out ." (Tr . 179)

boo~a testified further that he had intended to deliver

the remainder of the circulars on 21 April, but that he forgot

or neglected to check the hamper the next day, and that he

never did deliver the remainder of the circulars . In respect

of the 0rtho circulars, biora testified that he took some on his

route on 21 April and delivered them , but that he left two

bundles behind .

Under persistent cross-examination, biora denied that the

carriers had to receive Kuntz's permission before curtailing

mail deliveries, or that they had to complete a form indicating

what and how much mail was being curtailed . Asked whether

Kuntz "lets you curtail mail any time you feel like it?,"

Mora replied, "That's right . . . . You delivered mail, if you

left it two (2) or three (3) days, I'm sure

say anything, because I have a heavy route .

Asked why he had not told the postal

had left some mail behind, iora explained :

me . They were just accusing me of throwing

10 .

fir . 'luntz wouldn't

(Tr . 1E•3-84)

inspectors that he

"They didn't ask

the mail away ."

He stated that he had not volunteered the information because

he was "scared to death . . . . . didn't know whether I was coning

or going ." (Tr . 189) Similarly, Mora testified that he had not

told DeLaO during the Step 2A meetings on his grievances that

he had left some of the circulars behind . Asked why not, he

stated that DeLaO was part of management and that he (Mora)

did not trust him ; that DeLaO had not asked him ; and, finally,

that he didn't know why .

Rora also suggested that another employee, who he refused

to name, might have obtained some of the circulars left behind

and placed them in trash boxes on Mora's route in order to get

him into trouble . This unnamed employee, he explained, resented

the fact that Mora was drawing two military pensions in addition

to his postal salary, and had frequently called t?ora a "double-

dipper" or a "triple -dipper ." (Tr . 169) He refused to divulge

the other employee's name, however, on the ground that he had

no positive proof to back up his suspicions . .

Much of Mora's testimony was directly contradicted by

Kuntz . The latter testified on direct examination that the

Goldwater circulars were scheduled for delivery on 20 April,

and that they could have been delayed for a day or two only

with his approval . To support this testimony the Postal Service

11 .

introduced the following excerpt from the Letter Carriers

h'-41 Handbook (EX-7) :

13133 . Unless otherwise instructed by a unit mana ;er,deliver on each trip all mail distributed to yourroute prior to the leaving time for that trip .

Kuntz testified that if1ora had orally soup:ht his permis-

sion "many times" to curtail delivery of circulars for a day

or so, and that sometimes he had refused permission . lie was

uhab].e to say whether or not Nora had ever curtailed delivery

without his permission . Kuntz was also unable to recall speci .f-

ically whether he had checked under Nora's case during the period

from 19 to 21 April, or whether he had discovered any mail left

behind . He did recollect that there was a pile of circulars

about a foot thick for Nora's route that did not go out on 21

April, but he was unable to say whether or not Mora had asked for

permission to leave them . He stated further that another carrier

had delivered them the next day .

On cross-examination, Kuntz conceded that he had issued

no special order that mail was not to be curtailed without his

permission, but stated that this was a "standing rule ." (Tr . 123)

When asked whether carriers sometimes curtailed mail without

coming to him first for permission, he replied, "I am sure

there have been occasions ." (Tr . 208)

III

As the Postal Service points out in its brief , I ?lave

previously ruled in the Rubottom and Baker cases that pilferage,

theft, or other mishandling of mail is a serious offense which

cannot be tolerated, and for which discharge is a permissible,

12 .

if not a mandatory, penalty . I have also ruled, however, that

in the case of alleged offenses involving a statutory crime,

or act of moral turpitude, the Postal Service must prove guilt

by "clear and convincing evidence ."

The evidence in this case is purely circumstantial ; no

witness who testified saw bioraa discard any mail . Primarily

for that reason, the United States Attorney decided not to

prosecute him for the crime of which he was accused . Even if

hiora had been prosecuted and acquitted, however, the Postal

Service would not have been estopped by that fact alone from

discharging him . As I previously ruled in the Baker case, the

criminal and arbitration processes are entirely different, and

the result in the former does not necessarily dictate the

decision in the latter .

Although the proof offered by the Postal Service in this

case need not be rejected simply because the evidence is cir-

cumstantial, it must necessarily be subjected to the closest

scrutiny . A critical issue, therefore, is whether that proof

meets the clear-and-convincing test . Also of major importance

is the question whether the investigation of Mora was conducted

with the requisite conscientiousness and fairness to which all

employees accused of such a serious offense are entitled .

For some time I have been troubled by the procedures

followed by postal inspectors in cases of this kind . It ,is

unfortunate, in my opinion , that the parties have not agreed

that the accused employee should be told, while being read his

13 .

"Aiiranda rights," that he or she also has the right to ask

that a union representative be present . As things stand now,

we always have a situation in which the employee's testir :m ;y

about what occurred during the interrogation can be contradicted

by two postal inspectors . In this case, it is quite cicar that

Steffey was convinced before the interrogation began that flora

was guilty, and that both he and Earnest put impermissible

pressure on,Nora to confess . In addition, Steffey's subsequent

investigation of the discarded-mail incidents was purely per-

functory . His statement to '1ora that he was "pissed off" be-

cause he had to continue this "needless" investigation was

reprehensible . His inquiry of eight addressees out of 100 as

to whether they had received the circulars that were found in

trash cans was pointless . A check on the carrier who, according

to Kuntz, delivered some of the circulars on 22 April would

have been more to the point, because some were found on 23 April ;

but apparently this was not done . On consideration of all the

testimony and my evaluation of the credibility of the witnesses,

I conclude that TBora did not receive the due process to which

he was entitled .

Admittedly, the evidence on the substantive question of

who threw away the circulars points strongly in Mora's direc-

tion ; but in my judgment it falls short of being clear and

convincing . T+':ora's statement in his affidavit that he delivered

the circulars "that were taken on the route" is not inconsistent

with his testimony that he left some behind ; indeed, that

testimony was confirmed in part by Kuntz himself . It is true,

14 .

of course, that f:ora made no reference to leaving some circu-

lars behind during his interrogation by the postal inspectors

or at the Step 2_A grievance meetings, and the Postal Service

was understandably suspicious of his truthfulness . I an in-

clined, however, to credit his statement that he was "scared

to death" by the postal inspectors, who kept insisting that he

was guilty and held out the possibility that he might be thrown

in jail . I can also understand his reticence before DeLaC, and

his reluctance to say anything unless asked a specific question .

By Kuntz's own account, 1.ora was a very good employee ;

until the incident resulting in his discharge he had not been

in any trouble . He had a record of previous service for over

20 years in the army, culminating in an honorable discharge

with the rank of master sergeant . Although the circumstantial

evidence against him was strong, it wasa certainly not water-

tight . Yet, no effort was made to check on any other carriers

who might have been implicated . A few discreet inquiries

among the other carriers might have led to the identification

of the employee who Nora suspected but refused to name because

he could not prove his suspicions . No one checked on the

employee who delivered some of the Ortho and Goldwater circu-

lars on 22 April . Perhaps nothing would have come of those in-

quiries, but they should have been made .

I do not question the Postal Service's good faith 4in

this case . There is not the slightest indication that anyone

in management wanted to "get" Nora . Indeed, much of Kuntz's

testimony tended to support Mora's . Thus; i am persuaded that

V .

it is more likely than not th-it 6iora did leave a substantial

number of Goldwater and Ortho circulars Lohird on 20 and 2.1

April ; that he dial so without Kuntz's knowledr ;e or perr ission ;

and that this departure from the strict requirereants of Rule 131 .33

of the B"-4l Handbook was a fairly common occurrence . From this

I conclude that other carriers had access to the circulars left

behind . In the circumstances, the Postal Service has been

unable to prove clearly and convincingly that the circulars

found in the trash cans were those taken out by f :iora. on his

route on 20 and 21 April . Consequently, the emergency suspension,

the notice of removal, and the ultimate discharge were

without just cause .

Benjamin Aaron,Arbitrator