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C -:~l / 6'~ (' qREGULAR ARBITRATION PANEL
D
In the Matter of Arbitration DD
between ) GRIEVANT : J . Heredia
NATIONAL ASSOCIATION OF )LETTER CARRIERS D POST OFFICE : Los Angeles, CA
and )
UNITED STATES POSTAL SERVICE ) CASE NO . W7N- 5D-D 18820D
BEFORE : Professor Carlton J . Snow
APPEARANCES: Mr. Joseph Green
Mr . Harold Powdrill
PLACE OF HEARING : Los Angeles, California
DATE OF HEARING : August 3, 1990
AWARD :
Having carefully considered all evidence submitted
by the parties concerning this matter, the arbitrator con-
cludes that the Employer suspended and removed the grievant
without just cause . Accordingly, he shall be reinstated
and made whole, except for a deduction of three days wages
for delaying the mail and a deduction for any interim earn-
ings . The arbitrator shall retain jurisdiction in this
matter for ninety days from the date of the report in order
to resolve any problems resulting from the remedy in the
award .
Date :
It is so ordered and awarded .
IN THE MATTER OF ARBITRATION
BETWEEN
NATIONAL ASSOCIATION OFLETTER CARRIERS
AND
UNITED STATES POSTAL SERVICE )(Heredia Grievance) )
(Case No . W7N-5D-D 18820) )
ANALYSIS AND AWARD
Carlton J . SnowArbitrator
I . INTRODUCTION
This matter came for hearing pursuant to a collective
bargaining agreement between the parties effective from July
21, 1987 to November 20, 1990 . A hearing occurred on August
3, 1990 in a conference room of the postal facility located
at 7001 South Central, Los Angeles, California . Mr . Joseph
Green, Labor Relations Representative , represented the United
States Postal Service . Mr . Harold Powdrill , Executive. Vice-
president of Angel City Branch 24 , represented the National
Association of Letter Carriers .
The hearing proceeded in an orderly manner . There
was a full opportunity for the parties to submit evidence,
to examine and cross -examine witnesses, and to argue the
matter . All witnesses testified under oath as administered
by the arbitrator . The arbitrator tape-recorded the proceed-
ing as an extension of his personal notes . The advocates
fully and fairly represented their respective parties .
The parties agreed that the matter properly had been
submitted to arbitration and that there were no issues of
substantive or procedural arbitrability to be resolved . The
parties authorized the arbitrator to retain jurisdiction in
the matter for ninety days following issuance of a report .
They submitted the matter on the basis of evidence presented
at the hearing and oral closing arguments .
II . STATEMENT OF THE ISSUE
The parties stipulated that the issue before the arbi-
trator is as follows :
Was the emergency suspension and Notice of Removal
for mistreatment of mail issued to the grievant for
just cause ? If not, what is the appropriate remedy?
2
III . RELEVANT CONTRACTUAL PROVISION
ARTICLE 16 - DISCIPLINE PROCEDURE
Section 1 . Principles
In the administration of this Article, a basicprinciple shall be that discipline should becorrective in nature, rather than punitive .No employee may be disciplined or dischargedexcept for just cause such as, but not limitedto, insubordination , pilferage , intoxication(drugs or alcohol ), incompetence , failure toperform work as requested , violation of the termsof this Agreement , or failure to observe safetyrules and regulations . Any such discipline ordischarge shall be subject to the grievance-arbitration procedure provided for in this Agree-ment, which could result in reinstatement andrestitution , including back pay .
IV . STATEMENT OF FACTS
In this case, the grievant has challenged the Employer's
decision to place him on emergency suspension and to remove
him for mistreatment of mail . The grievant has worked as a
full-time letter carrier for the Employer since June of 1985 .
Although there is a vigorous dispute about the meaning of the
facts in the case, many of them are undisputed .
On July 11, 1989, the Guild National Bank reported to
the United States Postal Inspection Service the nonreceipt of
a first class letter containing a pre-approved credit card
application for one Matthew Carberry . It had been mailed on
June 19 , 1989 . The letter had been addressed to Mr . Carberry
at 5697 West Adams Boulevard in Los Angeles , California at
Zip Code 90016 . An investigation revealed that the letter
3
had been incorrectly addressed to a "No Such Number" address .
The Bank also informed the Postal Inspection Service that
someone had returned the pre - approved credit card application
on July 5, 1989 and that it had been completed with the fol-
lowing information
Name : Matthew Carberry
Address : 5696 West Adams , Los Angeles , California
Home Telephone No . : (213 ) 933-7401
State Driver ' s License No . : N4727671
Gross Monthly Income : $3600
90016
Because the address on the completed credit card appli-
cation was a nonexistent address, postal inspectors attempted
to verify the additional information contained in the appli-
cation . An investigation revealed that the telephone number
belonged to a local business which did not employ anyone who
resided on West Adams Boulevard . The driver ' s license number
belonged to a female resident of Rancho , California . On the
basis of this information , postal inspectors hypothesized
that the regular letter carrier on Route No . 16046, the route
to which the letter would have been directed before anyone
discovered it was addressed to a "No Such Number" address,
opened the letter and falsified the application . Since the
letter had been mailed from San Francisco on June 19, 1989,
postal inspectors reasoned that i t had taken a standard
delivery time of two days for the letter to reach Los Angeles .
Hence, they began their investigation by focusing on the
letter carrier assigned to Route No . 16046 on or about June 21,
4
1989 .
The grievant carried Route No . 16046 on June 21 - 23, 1989 .
Postal Inspectors Newlen and Robertson conducted a surveil-
lance of the grievant . On August 8, 1989, they caused a test
letter to be prepared which resembled a letter containing a
credit card . The test letter bore an address to Matthew
Carberry at the same " No Such Number" address as appeared on
the original letter containing the pre-approved application .
It appeared in mail to be cased by the grievant . The postal
inspectors were trying to determine how the grievant might
have handled the original letter containing the pre - approved
application by watching his treatment of the test letter .
According to Inspector Newlen , the grievant examined the
test letter and placed it on his case ledge while continuing
to work . The inspector testified that , after the grievant
had finished casing his mail and properly had deposited the
missent mail and endorsed returnable mail in the mis-throw
case, the grievant placed the test letter in the front separa-
tion of his satchel . Inspectors Newlen and Robertson , joined
by two additional inspectors , continued the surveillance of
the grievant from August 8, 1989 until August 12 , 1989 . Dur-
ing this time , Manager Cora Jones checked the grievant's
satchel at the beginning of each work day at the request of
the inspectors . She stated that the test letter remained in
the grievant ' s satchel from August 8 to August 12, 1989 .
On August 10, 1989 , Inspector Newlen prepared a test
postcard addressed to the same "No Such Number " address as
5
the test letter , and he placed it in mail to be processed by
the grievant . The grievant endorsed the postcard with his
route number and "NSN," signifying a "No Such Number " address .
Then he placed it in the mis -throw case .
At the end of the grievant ' s shift of work on August 12,
1989, he placed his satchel in the trunk of his car . This
was the first day, during the surveillance period, in which
the grievant had attempted to take home his satchel at the
end of his shift . At this time , Inspector Newlen approached
the grievant and asked him to accompany inspectors into an
office to be interviewed . During the interview , the grievant
stated that he had been the regular carrier on Route No .
16406 for approximately eighteen months . Inspector Newlen
testified that the grievant was asked if he knew the correct
procedure for handling a letter addressed to a "No Such Number"
address and that the grievant said it should be endorsed with
the route number and "NSN" and, then , placed in the mis-throw
case . Inspector Newlen stated that the grievant was asked if
he had any equipment in his car and that he said he did not .
The grievant , then, consented to have his car searched ..
When the postal inspectors removed the grievant ' s satchel
from his car , the grievant still maintained that he had not
had any equipment in his car . When the inspectors removed
the test letter , the grievant stated that the letter had been
placed in his satchel because he had wanted to make a trial
delivery of the letter and that he simply had forgotten about
its being there . According to the grievant , he told the
6
inspectors he had placed the letter in one of the compart-
ments of his satchel in order to attempt the trial delivery
and that he previously had attempted trial deliveries of such
"NSN" letters . During the shift, he had suffered an on-the-job
injury and had reported to the hospital immediately after the
shift ; and he simply forgot about the letter until the postal
inspector showed it to him on August 12, 1989 . The grievant
testified without equivocation that he never opened or com-
pleted any credit card application and that, on inspecting
the falsified application, he knew it was not his handwriting .
The Employer placed the grievant on emergency suspension
and removed him on August 21, 1989 for mistreatment of mail .
When the parties were unable to resolve their differences,
the matter proceeded to arbitration .
V . POSITION OF THE PARTIES
A . The Employer
The Employer contends that it had just cause for the
grievant ' s emergency suspension and removal . It is the posi-
tion of the Employer that the grievant was guilty of conduct
tantamount to stealing mail and that such theft constituted
just cause for his removal .
According to the Employer, the grievant forged the credit
application and, therefore , must have stolen the letter con-
taining the original application . It is the belief of the
7
Employer that the grievant was the most likely suspect because
the letter also had been addressed to a "No Such Number"
address on the grievant's route and would have arrived at
the postal facility on one of the grievant's work days .
The Employer also relied on observations of postal in-
spectors assigned to the case in reaching its decision. One
of those conclusions was that the grievant's driver's license
number had "Alpha-numeric similarities " to the license number
listed on the forged credit card application . Moreover, the
Employer concluded that the grievant's handwriting was "pic-
torially similar" to the handwriting contained in the appli-
cation . The Employer maintains that the conclusion of an
expert in handwriting analysis whom management had consulted
supported the Employer's conclusion that the grievant had
forged the application and that such evidence made reasonable
the Employer's conclusion that the grievant had stolen the
application .
The Employer argued that the grievant's conduct with
regard to the test letter showed an intent to steal the test
letter . It is the contention of management that such conduct
by the grievant was tantamount to theft and strongly supported
its decision to remove the grievant . The Employer maintains
that the grievant deliberately held the test letter in his
mail satchel for five days because he intended to steal it .
According to the Employer , there is no other rational explana-
tion for the grievant's having kept the letter, especially
since he had attempted to take his satchel home on August 12,
8
1989 . Accordingly , the Employer believes that the grievant
was removed for just cause .
B . The Union
The Union contends that the grievant ' s emergency suspen-
sion and removal had no basis in just cause because the
grievant was not guilty of theft . It is the position of the
Union that no reliable evidence has been submitted to the
arbitrator which links the grievant to the theft of the credit
card application . The Union contends that many other letter
carriers , as well as unknown individuals , had access to the
application form .
The Union also maintains that the grievant ' s explanation
for his handling of the test letter was entirely credible .
Accordingly , the Union argued that , at most , the grievant was
only guilty of inadvertently delaying the mail . It is the
position of the Union that the grievant ' s attempt to make a
trial delivery of the test letter was completely reasonable
and was a procedure corroborated by Manager Cora Jones's
statement that letter carriers may attempt trial deliveries
of "No Such Number" letters . Accordingly , the Union argues
that the grievant ' s handling of the test letter was reason-
able and that no inference of an intent to steal the test
letter is warranted or justified in this case . Because the
grievant allegedly was not guilty of theft on which the
9
Employer based its removal, the Union argues that the griev-
ant should be reinstated with all back wages .
The Union also contends that the Employer violated the
grievant ' s industrial due process rights and express contrac-
tual rights under Article 15 of the parties ' agreement and
that this specific violation came about because management
refused to disclose all relevant facts about the case to the
Union . The Union argued that it had not received the Inves-
tigative Memorandum prepared by the postal inspectors . Nor
had it received conclusions reached by a handwriting expert .
On that basis alone, the Union maintains that management's
decision to remove the grievant was defective and should be
overturned .
10
VI . ANALYSIS
A . The Nature of Circumstantial Evidence
In this case, the Employer removed the grievant on the
basis of his theft of mail and forgery of a pre-approved
credit application , as well as his alleged intent to steal
the test letter . Despite the words used in the statement of
charges against the grievant , evidence submitted to the
arbitrator at the hearing made clear that these were the foun-
dation of the removal decision . Theft of mail , of course, is
a dischargeable offense , but the burden of proof in such
cases is on the Employer . In this case , the Employer has
sought to meet its burden of proof through using circumstan-
tial evidence .
Evidence can be either direct or circumstantial . Direct
evidence exists when a trier of fact must conclude only that
the evidence is credible to establish the truth of asserted
facts . An example of direct evidence would be testimony from
a witness that he saw one person shoot another . A trier of
fact would only have to conclude that the testimony of the
witness was credible in order to reach a conclusion that the
fact asserted , the shooting , was true .
Circumstantial evidence is different . It requires not
only a conclusion about the credibility of testimony from a
witness but also the use of inferences . Circumstantial evi-
dence requires an arbitrator to infer that asserted facts are
true in a way that is unnecessary when direct evidence is the
basis of a decision . Circumstantial evidence that a witness
11
saw a shooting would be testimony from the individual that he
or she was near a place where the person had been shot, at a
time when the person had been shot, and that the witness saw
a particular person running away from the scene . In order
for an arbitrator to reach a conclusion that the accused shot
the person, it would be necessary to infer not only that
testimony from the witness is credible but also that the pre-
sence and flight of the person seen leaving the scene estab-
lished that the individual shot the victim .
The value of circumstantial evidence depends on the
strength of the inference which can be drawn from established
facts . If circumstantial evidence is ambiguous and permits
several different inferences to be drawn , then the evidence
is weak and generally will not establish the truth of the
proposition for which it has been offered . The force of cir-
cumstantial evidence depends on its capability of removing
other reasonable explanations except for the proposition it
has been offered to support . Circumstantial evidence may be
more reliable than direct evidence , but it is necessary for
other reasonable explanations to be eliminated ; and it should
not leave legitimate questions unresolved .
12
B . Theft of a Credit Card Application
A series of key contentions have been set forth by the
Employer . These propositions have caused management to con-
clude that the grievant stole and forged the pre-approved
credit card application . The assertions are :
(1) That the grievant was the most likely person to
have committed the theft ;
(2) That the grievant's handwriting was "pictorially
similar" to the handwriting in the credit card
application ;
(3) That the grievant's driver's license number had
"alpha-numeric similarities" to the license number
listed on the credit card application ; and
(4) An expert in handwriting analysis concluded that
the grievant completed the application .
The Employer also rested its selection of the grievant
as its prime suspect on a series of assumptions . Unfor-
tunately, the assumptions contained a good deal of speculation .
The inspectors speculated that the arrival date of the pre-approved
credit card application would have been on or about June 21,
1989 . This was a crucial assumption which linked the grievant
to what ultimately became the forged application . The postal
inspectors used a standard delivery time of two days for a
letter traveling from San Francisco to Los Angeles and estab-
lished that the letter, arrived on or about June 21, 1989 . The
accuracy of the standard delivery time, however, was questioned
by the inspectors themselves .
13
Inspector Newlen testified that he reviewed delivery
standards and "added a few days ." This process, he testified,
narrowed his investigation to the grievant because the griev-
ant had been assigned to Route No . 16046 on June 21-23,
1989 . The standard delivery time is only an approximation .
The arrival date of the letter containing the credit card
application could have ranged from one to five days after the
bank mailed it . Additionally, even if the letter had arrived
at the postal facility and had been directed to the grievant's
route on a date when the grievant was carrying the route,
Inspector Newlen conceded that the grievant would not have
been the only person who would have had access to the letter .
Inspector Newlen testified that he found "alpha-numeric
similarities" between the grievant's driver's license number
and the license number listed on the forged credit card
application . The similarities look like this :
N4752756 ( Grievant ' s number)
N4727671 ( forged number) .
Although both license numbers contain the letter 1N't as
well as the numbers "47" and "27," there is no identifiable
pattern of any significance in the numbers which would enable
one reasonably to infer that the grievant copied his own
license number, after making some minor change . This is not
a situation in which someone simply reversed the number . Nor
did the arbitrator receive any data at all about drivers'
license nmbers generally in California and the number of
licenses that begin with "N ."
14
Inspector Newlen also offered his opinion that the
grievant ' s handwriting was "pictorially similar" to hand-
writing contained in the credit card application . The inspec-
tor, however , conceded that he had not been trained as an
expert in handwriting analysis and that he , in effect, offered
the opinion of an ordinary citizen . His opinion with respect
to the similarity in handwriting cannot be given significant
evidentiary weight in view of his lack of technical training
in the area .
The most significant evidence offered by the Employer to
establish that the grievant had stolen the credit card appli-
cation came from an analysis by a handwriting expert who
asserted that the grievant had completed the application form . .
(See, Employer ' s Exhibit No . 2) . Such evidence had the poten-
tial to link the grievant directly to the forged application
and, arguably , to the theft of the application . Rules of
fairness and reasonableness , however, have made it necessary
for the arbitrator to disregard this evidence for two impor-
tant reasons . First , the expert did not testify at the arbi-
tration hearing , and there was no basis for judging the accuracy
of the analysis or questioning the expert about her
credentials . The Employer offered the evidence as hearsay,
and the Union vigorously objected . There is no way of
determining whether or not the "expert " was qualified to
render an opinion in this case and what data she used as the
basis for her conclusion . Her "expert opinion" could have
been dispositive in this case . At the same time, the expert
15
analysis came from a member of the Crime Laboratory Division
in the Office of the Regional Chief Inspector for the United
States Postal Service, and fairness mandates that the griev-
ant have an opportunity to cross-examine a witness offering
such crucial information .
In addition to the fact that the evidence needed to be
tested by the process of cross-examination, it has not received
any weight because the Employer did not have the "expert's"
conclusions to management at the time it made the decision to
remove the grievant . The Employer made its decision no later
than August 21, 1989 . The opinion from the handwriting
"expert" was not available until September 19, 1989 . (See,
Joint Exhibit No . 2(E) and Employer's Exhibit No . 2) . Arbi-
trators long have followed a rule of reasonableness which
requires that a removal decision be tested within the context
of evidence available to management at the time it made its
decision . As a general rule, subsequently discovered evidence
that was available at the time of the removal decision cannot
be used as the basis for justifying an earlier decision .
(See, e .g ., wells Aluminum Corp . , 86 LA 983 (1986) ; Loma
Corp . , 1975 ARB 8068 (1975) ; and Zinsoco Electrical Products ,
64 LA 107 (1975)) . As one arbitrator stated :
The only relevant evidence of facts which the personmaking the discharge had was in his possession at the timehe acted . A discharge cannot be based on conjecture,surmise, suspicion, or anything but hard, material,and known facts . (See, Borden's Farm Products, Inc . ,3 LA 607, 608 (1945)) .
Circumstantial evidence offered to support the proposi-
tion that the grievant was responsible for stealing the credit
16
card application failed to be persuasive . The process used
by management to select the grievant as the prime suspect was
rooted in speculation . The conclusion of the postal inspec-
tors that there were "alpha-numeric similarities" between the
grievant's driver's license number and the one listed in the
forged application did not warrant an inference that the
grievant had been the one who committed the forgery . In
addition, the observation of the postal inspectors that the
grievant's writing was "pictorially similar" simply was not
persuasive .
C . The Test Letter
The Employer removed the grievant on the basis of two
alleged thefts . The second incident of alleged theft occurred
during an investigation of the grievant as a suspect in the
theft and forgery of the pre-approved credit card application .
This fact is significant because it may have influenced the
Employer's appraisal of the grievant's actions with respect
to the test letter . The Employer was already suspicious of
the grievant , and actions of the grievant which may have been
entirely innocent could have appeared to be suspicious . Mere
suspicion , however , does not support a removal decision,
especially one based on a charge of theft . If the Employer
had been able to substantiate its claim that the grievant had
stolen the pre-approved credit card application, this would
have become a legitimate fact to consider when weighing
17
circumstantial evidence of the alleged theft of the test
letter, since the application and the test letter were linked .
Yet, since the Employer failed to substantiate its contention
that the grievant was guilty of stealing the credit card
application, such a suspicion failed to have evidentiary
value .
By removing the grievant for theft, the Employer assumed
the burden of proving that the grievant intended to approp-
riate the Employer's property for his use . The Employer
needed to establish that it was his plan intentionally to
deprive the Employer of its property . As one arbitrator has
observed,
In requiring proof of 'intent to steal,' arbitratorsare not simply applying criminal law requirements fortheft but common , everyday understanding . Thus,Webster ' s Third New International Dictionary defines'theft ' as follows : ' the act of stealing ; specific :the felonious taking and removing of personal propertywith intent to deprive the rightful owner of it .( See, Grant Hospital , 88 LA 591 ( 1986)) .
While not dispositive , the criminal law definition of"theft"
is a useful source of guidance in an arbitration proceeding
involving the same issue . One respected treatise on this
subject has stated :
Common-law larceny . . . requires the taking andcarrying away of the property of another, and thedefendant's mental state as to this act must beestablished , but in addition it must be shown thattthere was an 'intent ' to steal the property . (See,LaFave & Scott , Criminal Law , §§ 3 .2 and 6 .8 (1986)) .
The "intent " element of theft also has been emphasized by
judicial decision . As one court has stated :.
18
The taking must be with the specific intent to steal ;i .e ., to appropriate property of another and permanentlydeprive him of its possession . Unless this is proved,there is no larceny . ( See, People v . Turner , 267 Cal . 2d440, 443 , 73 Cal . Reptr . 263, 265 (1968 ) ; see also,People v. Kunkin , 507 P .2d 1392 ( 1979)) .
These sources support a conclusion that it is imprudent to
remove an employe for theft without giving some attention
to the issue of intent .
Intent to steal, however , can be proven by circumstantial
evidence . ( See, Sandstrom v . Montana , 442 U .S . 510, 522
(1979)) . In other words, an arbitrator may infer from an
individual ' s knowledge or awareness of the consequences of
his or her actions that the individual intended those results .
Likewise , conditions or events surrounding a person's actions
may reasonably point to the fact that the defendant intended
to commit the offense . In this particular case, the Employer
argued that the fact that the grievant retained possession of
the test letter for five days and the fact that the grievant
knew how properly to process an "NSN" letter but failed to
do so, all help establish that, when the grievant tried to
take his satchel home, he intended to steal the letter. The
Employer took the position at the arbitration hearing that it
had just cause to remove the grievant because he not only
appropriated property in the care of the postal service but
also he knowingly and deliberately did so .
As stated earlier in the report , the force of circum-
stantial evidence is found in its ability to eliminate other
reasonable explanations for a course of action other than the
truth of the proposition for which the evidence has been
19
offered . Other acceptable reasons for a person's actions
undermine the persuasive power of the circumstantial evidence .
If there are other acceptable reasons for the grievant's
action for which the Employer removed him , the Employer has
failed to carry its burden of proof .
The event on which the Employer has relied is that the
grievant did not properly process the test letter , a letter
addressed to a "No Such Number" address . It is clear from
the grievant ' s testimony and the test postcard that he knew
how to process an "NSN" letter . The grievant , however, testi-
fied that he did not endorse the letter "NSN " because it was
his desire to attempt a trial delivery . He testified without
rebuttal that he had undertaken trial deliveries on other
occasions and that he had done so because his route had a
high population of transients . He stated that he thought thee
numbers on the letter might have been jumbled or that someonee
might inquire aboutthe letter , which he stated without rebuttal
had occurred in the past . Manager Cora Jones's testimony
that many carriers under her supervision had attempted trial
deliveries in the past with "NSN" letters supported the
grievant ' s testimony that not immediately processing the let-
ter as an "NSN " letter was a reasonable course of conduct .
The grievant admitted that he placed the test letter in
a zippered compartment of his satchel , a compartment separate
from the rest of the mail . He testified that he did so
because he was going to attempt a trial delivery . The griev-
ant also stated that , during his shift that day, he suffered
20
an on-the -job injury and reported to the hospital immediately
after his shift ended, causing him to forget about the letter
in his satchel . The arbitrator received no evidence to rebut
his statement . Inspector Newlen testified that the grievant
checked his satchel each day after it had been emptied of
mail, and he offered his belief that the grievant had been
checking for the test letter .
The postal inspector , however, did not testify that he
saw the grievant actually remove the test letter from the
satchel . He was not in a position to observe what the grievant
saw when he checked his satchel each day . The grievant denied
remembering that the letter was there at all . He stated that,
because the test letter was in the smallest of three compart-
ments in the satchel, he did not observe the letter at all
during the five days that he had forgotten about it . The
Employer tried to establish that, because the grievant had
accountable mail during this period of time, he would have
had to see the letter . The grievant responded that he kept
the accountables in the larger of the two small compartments
in his satchel and that he had no reason to check the smaller
compartment for such mail . The parties displayed the griev-
ant°s satchel at the arbitration hearing , and the three com-
partments were clearly visible , with one large compartment
for regular mail and two smaller compartments . The middle
compartment could be zipped shut .
The grievant gave a completely plausible explanation for
his attempt to remove the satchel on August 12, 1989 . He
testified that he had wanted to take the satchel home because
21
an inexperienced letter carrier was to deliver his route on
the grievant ' s days off , and the grievant did not want his
satchel to be misplaced . He testified without rebuttal that
his satchel had been misplaced in the past and that it was
difficult to find it . Manager Cora Jones testified that, in
fact, there had been problems at the station with misplaced
satchels and that employes would have to spend time searching
for them . The Employer contended , however, that the griev-
ant's attempt to remove the satchel was in violation of Section
131 .11 in the M-41 Handbook and that the grievant's conduct
presented further proof of an attempt to steal the test letter .
Even though such conduct might have constituted
a technical violation , Ms . Jones conceded that she did not
know whether or not employes routinely took their satchels
home with them . The explanation submitted by the grievant
was reasonable . Additionally , the grievant had a radio and
a watch actually affixed to his satchel , and it was under-
standable why a letter carrier would not want to have his or
her satchel misplaced . Although the postal inspectors argued
that the grievant lied to them about having equipment in his
car, it must be recalled that he voluntarily allowed them to
search the car ; and he reasonably might have believed his
satchel was not the sort of equipment to which the postal
inspectors were referring . Had the postal inspectors asked
the grievant if his satchel was in the car and received a
negative response , then management would have had
for concluding that the grievant was lying .
22
a basis
Circumstantial evidence presented in this case failed
to support a conclusion that the grievant intended to steal
the test letter . Evidence about the instance is just as
consistent with his innocence as it is with his guilt . The
grievant ' s explanation for his conduct is reasonable and
plausible , and the grievant never had been disciplined for
removing a satchel or theft . Accordingly , it is reasonable
to conclude that the Employer failed to carry its burden of
proving that the grievant intended to steal the test letter .
It, however , is clear that the grievant was guilty of
delaying the mail . Since the letter was received by the
inspectors intact, the grievant would only have been guilty
of a delay of mail , if there had been no determination by the
inspectors that the grievant had stolen the mail . In other
words, the grievant ' s backpay should be reduced to reflect a
disciplinary suspension for delaying the mail . It is recog-
nized that the Union raised serious due process issues with
respect to the obligation of the parties to share all rele-
vant facts and documents . In view of the conclusion reached
at this point in the analysis , however , it is unnecessary to
address those issues .
23
AWARD
Having carefully considered all evidence submitted
by the parties concerning this matter, the arbitrator con-
cludes that the Employer suspended and removed the grievant
without just cause . Accordingly, he shall be reinstated
and made whole, except for a deduction of three days wages
for delaying the mail and a deduction for any interim earn-
ings . The arbitrator shall retain jurisdiction in this
matter for ninety days from the date of the report in order
to resolve any problems resulting from the remedy in the
award . It is so ordered and awarded .
Respectf ,ly submitted,
24