VOLUNTARY LABOR ARBITRATION

IN THE MATTER OF THE ARBITRATION i GRIEVANCE OF :

BETWEEN i FAITH I. McGRADY(Removal - theft and

UNITED STATES POSTAL SERVICE ; attempted sale ofCHICAGO, ' ILLINOIS POST OFFICE ; marijuana)CHICAGO , ILLINOIS 60607-9403

and

NATIONAL ASSOCIATION OF LETTER CARRIERSBRANCH NO . 11CHICAGO, ILLINOIS 60606

CASE NO . CIN-4D-D 37460ARB . NO . 8656

NATIONAL BUSII?E :-.SGUNTRAL RE(I

OPINION & AWARD

Subject: Unacceptable conduct as a postal employee - allegation ofagreement to supply 1/4 lb . of marijuana to a confidentialinformant of the U .S . postal inspection service, while onpostal property on September 6, 1984 . Claim that Grievantreceived $ 200 .00 to deliver the marijuana but neitherreturned the money paid to her by the informant nordelivered it .

Submission Agreement : Faith I . McGrady , GrievantWas the removal of the Grievant for just cause , and, if not,what shall the remedy be?

Contract and Handbook and Manual Provisions :Articles 3, 16 and 19 of the 1984 National Agreement,Jt . Ex . 1 ;Part 661 .1 of the Employee and Labor Relations Manual(ELM) (purpose of code of ethical conduct) ;Part 661 .21 (code of ethics for government service) ;Part 661 .3 of the ELM (standards of conduct) ;Part 661 .53 ( unacceptable conduct) .

Appearances :

For the EmployerHarvey E . Walden, III .William P . AtkinsJerome TerryDavid Baily, ELLeonard C . Moody

For the Union :W . Michael FayJames AtkinsJohn McKinneyErnest ReidJayne BoughtonSamuel WallaceFaith I . McGrady

Labor Relations RepresentativePostal InspectorWitnessWitnessWitness

AttorneyPostal Inspector (Adv . Wit .)CarrierWitnessReputation WitnessWitnessGrievant

I . INTRODUCTION

The hearing in this case was held on Friday , May 31,

1985 at the main post office , 433 West Van Buren Street , Chicago,

Illinois , 60607 - 9403 , before the undersigned Arbitrator assigned

by the parties pursuant to the Rules of the United States Postal

Service Regular Regional Level Arbitration Procedures to render a

final and binding decision in this matter . At the hearing, both

parties were afforded a full opportunity to present such evidence

and argument as desired , including an examination and

cross -examination of all witnesses . No formal transcript of the

hearing was made and each of the parties waived filing of a

post -hearing brief , since each relied on its comprehensive oral

closing . Both parties stipulated at the hearing as to this

Arbitrator ' s jurisdiction and authority to issue a final and

binding decision in this matter .

II . STATEMENT OF THE GRIEVANCE

Grievant was arrested Friday, November 16, 1984 forallegedly being involved in the sale and delivery of acontrolled substance while officially employed .Grievant claims she is innocent of all the charges .

III . FACTUAL BACKGROUND

On December 20, 1984, the Grievant was issued a Notice

of Charges - Removal, to be effective no earlier than 30 days

from receipt by Grievant . The Notice of Removal specified the

following grounds as reason for the discharge :

Unacceptable conduct as a Postal employee as evidencedby your agreement to supply 1/4 pound of marijuana to aConfidential Informant of the U . S . Postal Inspectors,while on Postal property on September 6, 1984 . You

were paid $200 .00 for the marijuana, which you promisedto deliver . You did not deliver the marijuana nor didyou return the money the Informant paid you for themarijuana .

You were arrested on November 16, 1984 , and charged withtheft . Your arrest reflected adversely upon the PostalService as it was publicized in the news media, whichincluded an article in The Chicago Defender, datedNovember 19, 1984 .

You have the right to file a grievance under theGrievance - Arbitration procedure set forth in Article15, Section 2 of the National Agreement within 14 daysof your receipt of this notice . (Jt . Ex . 6)

Pursuant to the Notice, Grievant was removed from the

employ of the Service on or about January 20, 1985 . The reason

for the removal was that Grievant allegedly engaged in

unacceptable conduct in violation of the Code of Ethical Conduct

of the Service, in that she allegedly had received $200 .00 from a

Confidential Informant to sell him marijuana but, after accepting

the money, neither returned it or supplied the marijuana .

The circumstances and explanation of the removal can

perhaps best be summarized by quoting paragraphs one through four

of the Investigative Memorandum submitted to the Post Master by

the Postal Inspection Service . This Investigative Memorandum

states impertinent part as follows :

1 . The basis for this investigation was informationthat Faith I . McGrady, Grand Crossing Station, Chicago,IL, was engaged in the sale of controlled substances toother Postal employees .

2 . On September 6, 1984, at approximately 1 :00 o'clockp .m ., a Confidential Informant working with the UnitedStates Postal Inspection Service, met with FaithMcGrady at the Grand Crossing Post office, for thepurpose of buying 1/4 lb . of marijuana for $200 . TheInformant then gave McGrady $200 for the marijuana, andwas told by McGrady that she could have it for him by7 :00 o'clock or 8 :00 o'clock that evening .

3 . Repeated attempts by the Informant to contact Faith

McGrady concerning delivery of the marijuana haveproved unsuccessful . To date , McGrady has notdelivered the 1 / 4 lb . of marijuana , nor has shereturned the money paid for that marijuana .

4 . On November 16, 1984 , Faith I . McGrady was arrestedby Postal Inspectors with the assistance of the ChicagoPolice Department . She was charged with violation ofIllinois Revised Statutes , Chapter 38, Section 16-1(b)(1), Theft . Additional memorandums will besubmitted pending disposition of this case in court .(Jt . Ex . 3)

According to the Service , evidence was obtained by

Management of the Chicago Lawn Station that sale of drugs was

taking place on and off premises , and that these sales involved

Postal employees . The information was communicated to the Postal

Inspection Service , along with further information that Grievant

was one of the employees suspected of being engaged in the sale

of controlled substances to other Postal employees .

On September 6, 1984, at approximately 1 :00 p .m., a

Confidential Informant , one Jerome Terry, working with the

Inspection Service met with Grievant at the Grand Crossing Post

Office, for the purpose of buying one quarter pound of marijuana .

This meeting was electronically surveilled by two Postal

Inspectors . By prior agreement , the two Postal Inspectors had

arranged with the Confidential Informant that the "buy" would be

made in the front parking lot, where the two Postal Inspectors,

Atkins and Jesse, could observe the sale . However , the sole

interchange which forms the basis for the removal here actually

occurred inside the building ; accordingly , the Postal Inspectors

merely heard a conversation on the tape recorder hidden on the

Informant ' s person . Both Inspector Atkins and Informant Terry

testified and described the conversation as a business

transaction , including an agreement by a woman named "Faith" or

"Faye" that she could get Terry a 1/4 pound of marijuana .

Informant Terry testified that he then gave the Grievant ( whom he

identified at the hearing) $200 for the purchase of the marijuana

and he in turn was told by her that she would have it for him by

7 :00 or 8 :00 p . m. that day .

Management witnesses , including Terry and Atkins, both

testified that , after the "undercover meeting" where money was

delivered to Grievant , they proceeded according to plan to

arrange for her arrest upon delivery . However , no one appeared

at the appointed place of delivery . Repeated attempts by the

Informant to contact the Grievant concerning delivery of

marijuana have continuously proved unsuccessful , Management

notes . Therefore , the Grievant did not deliver the 1/4 pound of

marijuana , nor did she return the money paid for that marijuana .

Accordingly , we have a simple case of theft of money supplied by

the Federal Government . Such conduct on Grievant's part

constitutes theft and is obviously a dischargable offense under

this labor contract .

Consequently , on November 16, 1984, the Grievant was

arrested and, as noted above , ultimately removed . It was upon

these facts that the instant grievance came before the Arbitrator

for final and binding resolution .

IV . CONTENTIONS OF THE PARTIES

A . The Service

According to Management , Grievant ' s arrest was

publicized in the news media, including an article in The Chicago

Defender , dated November 19, 1984, included in this record as an

attachment to Joint Exhibit 3 , the Investigative Memorandum

quoted above . To the Employer , this case is like any other in

which an employee commits theft , even though at first blush it

may appear as a dispute involving sale or transfer of controlled

substances . The essence of the charge is that Grievant received

$200 from the Federal Government , by way of the Postal Inspection

Service through the Confidential Informant . She never returned

the money nor did she deliver the promised goods . Such conduct

obviously violates the Code of Ethics for Government Service,

referenced above, and also violates the Federal Law which

prohibits this kind of activity on or off the work premises .

The theft convincingly proved here is clearly a breach

of the numerous applicable rules and regulations of the Service

above -noted and obviously is also in direct derogation of the

Postal service's basic mission , Management submits . Numerous

arbitrators have sustained the Employer in its belief that once

the underlying facts are admitted or proved in this sort of case,

it has the absolute right to discharge the employee ; and such

action is entirely within the boundaries of the just cause

principle . It has been proved by the preponderance of evidence

presented that Grievant was involved in an instance of serious

misconduct and that her retention would not be in the best

interest of the public, nor would it have a positive effect on

morale in the involved work station or further the goal of

efficient service, argues the Employer .

Management presented an Award by Arbitrator Peter

DiLeone in a case between these parties involving Grievant

- 6 -

Charles Vowels , Case No. CIN-4T-D 34320 , to show that even a

long-term employee with an excellent work record cannot

successfully plead mitigation when the underlying reason for

discharge is sale of drugs by Postal employees . Management

stresses that the discharge penalty in this case cannot be deemed

punitive rather than corrective .

Accordingly, Management argues , the grievance should be

denied and the Arbitrator should dismiss the grievance in its

entirety as being totally without merit .

B . The Union

By contrast , the Union views this case in an entirely

different light . It questions whether any probative evidence,

let alone convincing evidence , of an involvement by this Grievant

in alleged sales or theft was proved by the Employer . It also

casts doubt on the procedures utilized in this case and on the

credibility of the key witness , Confidential Informant Jerome

Terry . Accordingly , it requests the Arbitrator to sustain the

grievance in its entirety and reinstate Grievant with full back

pay and all other benefits restored to her .

First , the Union argues that the Grievant was acquitted

in a criminal proceeding of the exact same charge that is

levelled against her here by the Postal Service . The primary

witnesses who appeared at the criminal case and at the

arbitration were identical and nothing new or different was

offered in this proceeding from the criminal case . All

participants acknowledge that no one other than Terry could have

possibly observed Grievant or whoever it was that Terry spoke to

on September 6 . The two Postal Inspectors could only hear a

conversation through the tape device hidden on the informant's

person. Despite explicit instructions, Terry did not go to a

previously agreed location for the consummation of the

transaction, where observation by the two Inspectors could have

been possible . Where Management has accused an employee of

theft, a crime involving moral turpitude, proof beyond a

reasonable doubt is required . Any fair reading of the record in

this case shows that Management has not come close to sustaining

this burden, especially in light of the fact that a Criminal

Court Judge has already found specifically that such was not the

case, the Union submits .

Second, in support of its position, the Union

emphasizes the conflict in the testimony between the Grievant and

Terry and urges that the Grievant is the more credible witness .

The Union emphasizes that Terry was an evasive and inconsistent

witness at the hearing . Moreover, Terry is a convicted felon

a drug addict . He has been paid substantial sums to work for

Postal Inspection Service, and to act as an Informant . Yet

and

the

his

own record for truth and veracity can most charitably be

characterized as terrible . The Grievant, on the other hand, had

an excellent work record and enjoys a fine reputation for truth

and veracity both at work and in her community . Two reputation

witnesses were presented to directly testify as to that important

point. Moreover, there was no evidence introduced at hearing as

to a bad prior disciplinary record or other specific instances of

wrong-doing which would in any way reflect on Grievant's

credibility .

Utilizing the traditional standards for resolving

credibility , then , the Arbitrator must credit Grievant ' s version

of the facts over that of the so called " Confidential Informant,"

Terry. ( Perhaps Terry is the best person to know what happened

to the $200 foolishly given to him by the Postal Inspectors,

suggests the Union .) Grievant was a frank , straight forward

witness who has consistently and credibly denied any involvement

in this matter from the time she was first accused . Nothing

detracts from her complete denial of involvement here, and

nothing in her record belies her credibility . Terry, on the

other hand , is a liar, a felon , and even Postal Inspector Atkins

conceded in his testimony that Terry has lied to him about "money

matters," and is apparently a drug addict . Grievant should be

credited and Terry ' s false and uncorroborated accussation against

Grievant should be rejected out-of -hand by this Arbitrator .

Third , the Union stresses that there were numerous

inconsistencies and failure of proof, putting aside the

credibility of "Confidential Informant " Terry . Perhaps most

important is the fact that the tape which allegedly recorded the

conversation between Terry and a "Faye" was not present at the

hearing . The Employer claims, through the testimony of Postal

Inspector Atkins , that the tape was destroyed during duplication .

At any rate, the tape was not available for admission into the

record . The only evidence presented as to the content of the

tape or recording of the crucial interchange on September 6 was

the hearsay statements of Inspector Atkins, along with Terry's

own self-serving claims . Yet , Union Exhibit 2 , the "Buy Summary

Sheet" reveals that the tape was duplicated on October 12, 1984,

by what appears to be "Arfa " and was transcribed on September 26,

1984 by one Roberta Fowler . The existence and availability of

the tape for corroboration is apparent , even though it also

contains substantial heresay problems .

In addition , the "Buy Summary Sheet," Union Exhibit 2,

contains the following narrative filled out by the Postal

Inspector :

"Narrative : The CI was sent into the Grand CrossingStation to buy marijuana from Faye . She told him she wanted$250 for 1 / 4 lb . of grass and the CI stated that was toomuch . He told her he only had $ 200 .00 , but he would giveher some extra later . She said OK, but wanted some of thegrass . The CI said he could not give her any dope , he wouldgive her money later . The CI then handed her $200 for 1/4lb. of marijuana , with delivery set for 9-7 - 84 ." (UnionExhibit 2)

It is to be noted that the summary by the Inspectors

indicates that the woman was referred to as Faye , and not Faith,

the name of the Grievant . Moreover , the date for delivery of

marijuana was not at 7-8 p .m . on September 6 , but was set for the

next day . There are , obviously , several discrepancies even in

the case presented by Management and the reports by the Postal

Inspectors themselves . These further detract from the persua-

siveness of its claims , the Union opines . See the quoted por-

tions of the Investigative Memorandum , Joint Exhibit 3, set forth

above .

The Union further notes that the Grievant testified on

her own behalf . In sum , her testimony was that she had worked

for the Postal Service for over twelve years at the time of her

removal , with a break in service when she worked for the Treasury

Department . She testified that she had nothing to do with the

sale of drugs or with theft and did not know the Confidential

Informant . She acknowledged that she was sometimes called Faye,

but also testified that at least one other employee at the

involved Postal facility was called by that name . She testified

that she did not use alcohol or drugs and that she was unaware of

sale or use of controlled substances by Postal employees at the

involved facility .

In sum, the Union stresses that the credible testimony

of Grievant or the Employer witnesses other than the highly

suspect testimony of Confidential Informant Terry does not in an

way support Management ' s claims of theft or an attempted sale of

drugs on the part of Grievant . At most, Management ' s evidence

can be characterized as showing $200 of taxpayers' money was

foolishly given to Mr . Terry and someone has to be blamed for

this loss . To extrapolate from these facts any basis for the

removal of Grievant does not relate to the actual evidence

produced by the Employer . The union accordingly takes the

position that the Postal Service did not have just cause to

terminate the Grievant from employment . In its view, Grievant

must be reinstated with full back pay, in light of the just cause

standards governing any removal under the National Agreement, Jt .

Ex . 1 .

V . DISCUSSION AND FINDINGS

It must be acknowledged that the act of theft or

conversion of Employer property and the possession and sale of

marijuana or other controlled substances at the work station are

two of the gravest offenses which an employee can commit, and

when such reprehensible action occurs, immediate termination is

proper and fully justified, regardless of a prior clean record

and long service . I, like numerous other arbitrators, have

uniformly recognized such a right to summarily discharge an

employee without consideration of his or her prior work record

when, as here, the authority to discharge is derived from

specific language in the labor contract (Article XVI, Section 1

of Jt . Ex. 1), which gave actual notice to employees that theft

or pilferage would result in immediate discharge . Accordingly,

the precedent Award of Arbitrator DiLeone cited to be by the

Employer merely follows a long line of other cases and capably

summarizes what is clearly a consensus rule . No further

principles applicable to this case, other than long-term

employees can be fired for sale of drugs, can be gleaned from

that case .

In the instant matter, it is still the Employer's

burden to come forward with clear, unequivocal and convincing

evidence of theft to sustain its discharge of Grievant McGrady .

In Arbitrator DiLeone's precedent Award, the Arbitrator concluded

that in fact a sale of drugs had taken place ; and accordingly he

found the issue of mitigation not applicable when there is a

right to summarily discharge for such rule violations . In the

instant case, the Employer was equally obliged to prove that

Grievant agreed to sell marijuana to Confidential Informant

and that she took $200 supplied to her by the Informant .

Terry

The Employer has totally failed to prove each pertinent

allegation against Grievant under any reasonable reading of the

evidence placed on this record, whether the burden of proof is

considered to be convincing evidence or the lesser preponderence

of the evidence standard . I must therefore find that the

Employer did not have just cause to terminate this Grievant .

First, I do note that the finding of not guilty is to some

degree irrelevant to the resolution of this dispute, in my view .

I have recently held that the differences in policy and

procedural requirements between a criminal trial and an

arbitration over a discharge of a Postal employee are

sufficiently substantial so as to render a not guilty verdict not

controlling on the factual questions presented to an arbitrator

for resolution. It is one piece of evidence which may be

considered, however . See Case No . CIN-4H-D 31474 and CIN-4H-D

31482 (grievance of Ricky Bryant, August 28, 1985) . See also

Case No . C8N-4E-D 6867 (NALC and Postal Service, Norman Harvey,

Grievant) issued by Arbitrator Bernard Dobranski on April 21,

1980 . ("An arbitration proceeding is a significantly different

one from a criminal proceeding and a conclusion reached in one

forum does not necessarily mandate the same result in the

other") .

As Arbitrator Dobranski correctly notes, there are

different burdens of proof, different fact finders, the

possibility of different testimony and evidence submitted and

different rules of evidence supplied in a criminal case and in

arbitration . Yet the not guilty finding is admissible into

evidence on the record at the arbitration hearing and constitutes

at least one detracting factor against Management's claim that

its version of the facts must be credited .

Second, because of the informal nature of the

arbitration process, the hearsay nature of the testimony of

Postal Inspector Atkins concerning the alleged conversation

between Grievant and a woman named Faye on September 6, 1984

relates solely to weight and not admissibility . The Arbitrator

has recently held in the case of John Smith, CIN-4B-D 31325, that

hearsay evidence alone can not support a discharge and that an

irreducibly minimum or residual of appropriate evidence i s

required. Certainly, introduction of the tapes of the

conversation between Confidential Informant Terry and whomever he

spoke to on September 6 would have supplied more substantial

corroboration of Management's claim that a deal was made and

money passed to a woman named Faye, who was in fact Grievant .

The destruction of the tape raises further doubts and weakens

even more of Management's proof here because it eliminates the

possibility of a voice check or comparison with the voice of

Grievant .

The crux of this case, then, centers around the

resolution of credibility, just as the parties agreed . We have a

direct dispute between confidential Informant Terry and Grievant

McGrady as to virtually every salient point required to prove

Management's claims . In rendering this opinion, the Arbitrator

has avoided detailing each bit of evidence presented by either

side noted above . The complete recitation of alleged

inconsistencies and contradictions has been sufficiently

presented in the facts and contentions of the parties, I believe .

I note that the Union's advocate is generally correct

in his assessment of the traditional basis for assessing

credibility in Court . One crucial device is reputation for truth

and veracity . A second device is prior convictions of felonies

I

or misdemeanor crimes involving dishonesty or false statements .

A third is potential bias or interest . Prior bad acts that

reflect on credibility is another point of evaluation .

As to each and every one of these traditional criteria,

Grievant McGrady stands muster . By way of contrast, the

Confidential Informant Terry, fails under traditional standards

as to each of these points . Terry was a Confidential Informant

on the Postal Service's payroll to report on the misbehavior of

others . Although Informers certainly are not automatically to be

discredited because of the unsavory nature of their calling,

strong corroboration of their claims is traditionally required .

This Confidential Informant is a convicted felon and apparently a

drug addict . He has not achieved a status as a man whose

reputation for truth and veracity is acceptable in any relevant

community . Even Postal Inspector Atkins testified that Terry had

lied to him, although only over matters concerning "money ." To

rest the Employer's entire case on the weak credibility of this

accuser must mean that the Service should be prepared to have a

finder of fact reject Terry's story as not sufficient to provide

convincing evidence of guilt .

Perhaps most important in my decision to disbelieve

Terry is that he deviated here from procedure and instructions

when he did not take the person who was supposedly about to sell

him drugs to an area where the two Postal Inspectors could

observe what actually happened . All conversation was out of

eyesight of Inspectors Atkins and Jesse . Moreover, there is a

discrepancy in the alleged time when delivery of the marijuana

was supposed to occur, even on the face of the Service's own

documents . Last, the reference to "Faye" and not to Faith and

the lack of a last name in the conversation overheard by the

Inspectors , even if they are fully credited , detracts from the

ability to precisely identify Grievant as even being on the

premises on September 6, let alone the person who took the $200

from the Confidential Informant .

Consequently , on the basis of the total record, I find

that Management has not succeeded in proving that Grievant stole

$200 from the Government or that she agreed to a sale of

marijuana on September 6, 1984, or at any other time . Causing

one to lose her job by uncorroborated accusations by so

unreliable a witness as Jerome Terry and the exclusive reliance

on the hearsay evidence of Postal Inspectors listening to a taped

conversation between Terry and an unidentified woman named "Faye"

does not show that this Grievant committed any dereliction of

duty whatsoever . I so hold .

As the Union argued throughout this matter , Grievant is

either guilty of theft or she is not . If she has not been proved

guilty of theft, she is entitled to full back pay . The issues of

prior work record and mitigation only come into play if the theft

accusation has been proved . Accordingly , I find the Employer's

precedent Award is clearly distinguishable upon its facts and the

grievance should be sustained .

For all the foregoing reasons, the Grievant is entitled

to full relief and the grievance is sustained in its entirety .

VI . AWARD

For the reasons stated above , attached hereto and made

a part hereof as if fully rewritten :

1 . This grievance is sustained in its entirety .

2 . Grievant is hereby ordered reinstated, with full

seniority and all other benefits restored , including full

backpay. The personnel record of this Grievant shall have

expunged from it the improper dismissal action involved in this

case .

Elliott H . GoldsteinArbitrator

September 5, 1985