The following arbitration decisions are available from the NALC Arbitration DVDset. The search engine on that program allows you to retrieve a pdf of thedecision by clicking on the DVD search and entering the number listed to theright of C#. You can also open the decisions by clicking on the C#s below.

C# 15316Arbitrator: K. McCaffreeDate of Decision: 4/16/1996

Issue:

Did Management ' s actions (toward the Grievant ) on March 14 and 15, 1994violate the National Agreement with regards to mutual respect for the parties asset forth in various Handbooks and Manuals, pursuant to Article 19? If so, whatshall the remedy be?

Observation:

First, the Postmaster intimidated and threatened the Grievant on the workroomfloor on the morning of March 15, 1994 when he shook his finger in her face,spoke to her in a loud and brusk voice, and sent her home with out explanation.Not only was the behavior overtly threatening in manner, it bespoke of anattitude of disregard for the dignity of the employee. In addition, the finalcomment toward the Grievant as she left his office that morning was threateningas well. The Postmaster said that "she would suffer the consequences" but gaveno further explanations. The Postmaster's final comment, "I'll talk to your later"on the afternoon of March 14, in the context of the conversation and thePostmaster's belief that the Grievant was not telling the truth, was reasonablyinterpreted by the Grievant as a threat as well, whatever the intent of thePostmaster.Further, the attitude of the Postmaster was chauvinistic as well asauthoritarian. He abruptly turned and left the Grievant talking to him on theafternoon of March 14 after he had interrupted a conversation. Aside from beingdiscourteous with no explanation to the speaker on why he had to leave, thePostmaster's statement at the hearing revealed the chauvinistic implications ofhis action when he acknowledged, "I turned away and left. I had nothing moreto say to her." This represents a complete disregard for the fact that the womanletter carrier may have and did have something to say to him. Also the claim bythe Postmaster that the Grievant was "fragile" vibrates as a chauvinisticcomment. The Postmaster had no basis upon which to make that statement,except that the Grievant was a woman. The likelihood that a man would bereferred to as "fragile" is small, if not nil. Authoritarian power centeredmanagement is passe, and can no longer be justified in the industrial setting.Nor can its exercise be longer tolerated, no matter how "right “the behavioraldecisions may be. Grievance procedures, arbitration and dispute resolutionmethods, among current personnel practices, have recognized that howsomething is done is as important as what is done. The Joint Statement of the

parties, as well as the citations from the Handbook and Manuals on mutualrespect and the code of conduct indicate that the Postal Service and its Unionshave recognized this as well. Supervisors, who fail to change with the times, willcontribute to workforce unrest and even to violence in the workplace.

Award

Management's actions toward the Grievant on March 14 and 15, 1994 overproblems related to forwarding a patron's mail violated the National Agreementwith regard to mutual respect for the parties as set forth in various Handbooksand Manuals, pursuant to Article 19. The grievance was sustained, and theEmployer direct to cease and desist such behavior, to write an apology to theGrievant for the behavior, and to restore 48 hours of the sick leave balance ofthe Grievant.

C# 15551Arbitrator: R. JacobsDate of Decision: 5/15/1996

Issue

Whether or not Supervisor John Mike Zenuch verbally and physically assaultedthe Grievant Edward Bianoski? If so, what shall be the remedy?

Findings

The Arbitrator is persuaded that the Union is correct in arguing that a "privateapology from Zenuch to Bianoski for a very painful public humiliation and assaultis not sufficient."

...In the operation of the Postal Service, Management has a fixed obligation tocontrol and direct the work force in a manner which will maintain an atmospherebetween employer and employee which assures mutual respect toward the workforce in general and employees engaged in legitimate Union business. What isespecially disturbing here is that the assault was by a Supervisor on a craftemployee. Supervisors should be held to an even higher standard and act as anexample to the rank and file. The Joint Statement on Violence and Behavior inthe Workplace is intended for Supervisors as well, and Supervisors shouldspeak to fellow employees as they desire to be spoken to themselves, i.e. in arespectful and positive manner, as assaults do not necessarily involve onlyphysical contact.

Few occurrences are considered more fraught with danger and hazardousconsequences than verbal and/or physical abuse.

Award

The Postal Service violated the National Agreement, Article 14 - Safety andHealth, and Section 115.4 of the M-39 Handbook by failing to maintain anatmosphere of mutual respect between the Supervisor Mike Zenuch and theGrievant Edward Bianoski on September 9, 1994. As an for a remedyManagement is hereby directed (1) to cease and desist from such actions in thefuture ; (2) to re-evaluate whether Mr. Zenuch should continue to performsupervisory duties in the Carrier section ; (3) to instruct Mike Zenuch to draft andsend to Ed Bianoski a formal letter of apology, witnessed in writing by thePostmaster, with a copy placed in the Supervisor's personnel file ; (4) to fullyretrain the Supervisor in Management duties in accordance with the directivesoutlined in its handbooks and manuals; ( 5) to note in the Supervisor ' semployment file the recommendations of the Arbitrator that he be dealt withmore harshly should similar conduct be repeated at any time in the future ; and,( 6) to prominently post this Award and a copy of the letter of apology for 30 dayson the bulletin board of the subject Post office unobstructed by any othermaterial.

C# 16459Arbitrator: K. McCaffreeDate of Decision: 1/28/1997

Issue

Did the Employer, through the actions of Supervisor Jackie Bugarin toward theGrievant on January 6, 1995, violate Articles 14 or 19, specifically M-39 Section115.4 or ELM Section 666.2, or the Joint Statement on Violence and Behaviorin the Workplace? If so what is an appropriate remedy?

Analysis of Evidence

The arbitrator is aware of a "fine line” between what constitutes “warning" anemployee that continuation of present or described conduct may or will lead todischarge and a "threat" of discharge or discipline. But I concluded in this casethat Bugarin overstepped that line and issued a threat to the Grievant rather thanissuing a warning of impending discipline from continued poor workperformance. In this sense, I sustained the grievance. The followingconsiderations led to this conclusion First, I believed the Grievant that he wasthreatened, not warned by Bugarin. The prior and current relationship of theGrievant to Bugarin provided a basis for the statement by Bugarin. Thecontinuing conflict between the supervisor and the employee over the 18minutes above the eight hour per day standard was an irritant to the supervisor,and a circumstance where the Grievant could be considered to be messing with,and in the view of the supervisor, needlessly bothering her or causing her a"problem " daily. Further the Grievant's alleged refusal to respond when thesupervisor questioned him about the reading of a magazine at his case could be

considered an aspect of insubordination and put the supervisor in an attitude ofexasperation. These and similar prior activities, alleged by Bugarin, weresufficient to raise the supervisor's level of reaction to one of threat rather than acalm dissertation on the fact that these matters could lead to removal. Accordingto Bugarin, this counseling constituted the tenth or eleventh such session in thepreceding year.

The supervisor does have authority to discipline and an ability to discharge anemployee. Here the issue constituted only an incident on one occasion in whichthat authority was flaunted in the face of an employee. It was an act ofharassment and intimidation in violation of the Joint Statement.

Further, the arbitrator concluded that the supervisor crossed over the line froma warning to a threat in an attempt to get the Grievant to perform as thesupervisor believed was proper. Clearly supervision must supervise and seekto attain its goals of efficiency and productivity. The method of achieving thosegoals must be consistent with the provisions of the Joint Statement. A nominalvariation from the methods of supervision indicated in the Joint Statement, asoccurred in the incident before the arbitrator, must be corrected.

Award

I. The Employer did violate the Joint Statement on Violence and Behavior in theWorkplace through the actions of Supervisor J Bugarin on January 6, 1995. TheSupervisor threatened the Grievant, Ralph Pitts by stating "Don't you [f-bomb]with me or I'll have you fired." In this respect the grievance was sustained.

II. Because of the violation in I above, the Employer is directed to admonishSupervisor J Bugarin verbally for the threat on January 6, 1995 to have theGrievant fired and otherwise instruct her to cease and desist from such practicein lieu of advising employees that poor performance may lead to discipline andeven removal.

III. A copy of Page 20 of this Opinion, Decision and Award with the award setforth thereon shall be posted by the Employer on an official bulletin board at thecurrent locations both of the Grievant and of Supervisor Bugarin for a period offive work days following receipt of this Opinion, Decision and Award.

C# 16961Arbitrator: L. BajorkDate of Decision: 6/23/1997

Issue

Did the Employer violate Articles 2, 14 and 19 of the National Agreement and theparties ' Joint Statement by Mr. Armando Cuevas' abusive and intolerant

behavior? If so, what is the proper remedy?

Discussion and Findings

There is just too much evidence, involving too many carriers within too manyvarying circumstances to conclude that Mr. Cuevas did not exhibit the describedabusive and intolerant behaviors as a result of a "bullying" attitude. Because somany individuals have been affected by Mr. Cuevas, abusive behavior, I find thata mere apology from him would be far short of an appropriate remedy, if notentirely impracticable. Most significant, it should be noted that Mr. Cuevas hashad more than one opportunity to correct his behavior. I find that his repeatedfailure is either evidence of his unwillingness or his'inability to do so and is,therefore, basis for the remedy which I direct.

Award

As remedy, Mr. Armando Cuevas will be restricted from performing the duties ofany position which includes the core activity of dealing or working with carrieremployees. The purpose of this restriction is to avoid a recurrence of hostilitybetween Mr. Cuevas and employees of the Letter Carrier Craft, San Antoniopostal facility.

C#17420Arbitrator: N. HuttDate of Decision: 10/7/1997

Issue

Is the grievance arbitrable? Whether the Postal Service violated the NationalAgreement or the Joint Statement on Violence in the Workplace? If so, what isthe appropriate remedy?

Discussion

When an employee is verbally confronted by a personal and somewhat viciousattack by a supervisor, that in and of itself, may place the employees' health atrisk. Based on the record, there is substantial evidence the Supervisor bulliedand intimidated the Grievant to such a degree that Grievant's working conditionson the day in question were unsafe. This is also a violation of the Joint statementon Violence and Behavior in the Workplace and Section 115.4 of the M-39Handbook which assures mutual respect in the workplace. The grievance issustained.

Award

1. The grievance is arbitrable.2. The Postal Service is ordered to cease and desist all violations of the Joint

statement on Violence and Behavior in the Workplace and the mutual

respect provision of the M-39 Handbook.3. Supervisor Jones is directed to cease and desist from all violations of the

Joint Statement on Violence and Behavior in the Workplace and themutual respect provision of the M-39 Handbook.

3. The Postal Service is directed to send a written apology to Grievant for theabusive comments, bullying, and harassment which were made to her onApril 13, 1995. A copy of the letter shall be posted on the NALC bulletinboard for 30 days at the Bixby Station and the Main Post Office.

4. The Postal Service is directed to restore the hours lost by Grievant on April13, 1995, when she left work early.

5. The grievance is sustained.

C#17542Arbitrator: C. RehmusDate of Decision: 11/3/1997

Issue

1. Was the grievance properly filed at Step 2?2. May a violation.of the Joint Statement constitute a violation of Article 14 of

the National Agreement?3. Was the Joint Agreement violated?4. If the answers to 1-3, above, are affirmative, what, if any, shall be the

remedy?

Was the Joint Statement Violated?

London's words at his initial stand-up.with.employees are, for the most part,stipulated. He spoke of the need to listen to three voices--those of employees,customers, and the Postal Service. He also spoke of the need to reward goodperformance. Bad performers, London testified he said, "would be improved."The sole contradiction comes here, where four witnesses stated London said ;"Bad performers will be fired" or "gotten rid of." This statement was developedfurther in his make-up stand-up three days later, where London apparently toldthose present he would fire bad performers ; he was not afraid to have troublewith anyone because he would retire in two years. In this context I note the. JointStatement italicized this sentence, "Making the numbers' is not an excuse for theabuse of anyone."

It is undenied that in the original stand-up London reacted with outspokenhostility to a deputy steward who was taking notes of his remarks. It is alsoagreed that London, when a suggestion was made he thought he had alreadyresponded to repeatedly struck his forehead with the palm of his hand as if tosay "duh" or "stupid." This action was considered so egregious by some presentthat the longtime carrier whose suggestion was. treated in this manner wasapologized to by both Union and Management representatives after the stand-up.

There is no need to continue employees' and.the Union ' s litany of complaints'against this archaic management style. The Joint Statement concludes, " But letthere be no mistake that we mean what we 'say and will enforce our commitmentto a workplace where dignity, respect and fairness are basic human rights, andwhere those who do not respect those rights are not tolerated." : I conclude thatLondon ' s remarks were abusive and hostile and apparently were made withoutcause or reason. His remarks and actions did not demonstrate the mutualrespect and dignity between supervisors, and employees expected.in modernpersonnel systems and commanded by the Joint Statement. They certainly didnot reflect the values set forth in the Joint Statement. Because stress and threatsare! linked to invidious workplace behaviors in the Joint Statement, London'sstatements and actions also violate Article 14, the Health and Safety article, ofthe National Agreement as well.

Award

1. The former Officer-in--Charge, Yucaipa, CA, Charles London, shall ceaseand desist from violating Article 14 of the National Agreement and the JointStatement on Violence and Behavior in the Workplace ; and,

2. Charles London shall return to the Yucaipa Post Office and hold a stand-up apologizing for his remarks during the September 20, 1996, stand-up; or, as alternative to 2, 3. Charles London shall write a letter to Yucaipa 'Postal employees including the apology ordered in 2. above ; such letterto be posted on the Yucaipa, CA,'Post Office employee bulletin board for120 days.

C#17559Arbitrator: E. HalesDate of Decision: 11/10/1997

Issues

1. Did the filing of the grievance in this case at Step 2 of the GrievanceProcedure, as an Article 14 violation, render the grievance procedurallydefective and not arbitrable?

2. Does the evidence presented in this case establish a violation of the JointStatement and Article 19'with the applicable provisions of the. "MethodsHandbook, Series M-39" ("M-39") ?

Discussion and Findings

In considering this grievance on its merits,..the evidence does reveal, withoutsignificant dispute from the Service, that the manner in which Seiss confrontedthe Grievant concerning his work performance was unacceptable. The fact thatSeiss' conduct towards the Grievant was unacceptable appears to be supported

by the testimony of Service witness John Watson, Manager of CustomerService. Watson stated that it was inappropriate for the supervisor to point hisfinger in the Grievant ' s face or to be sarcastic to an employee when dealingwith work problems. Thus, the evidence in this matter does reveal that themanner in which Seiss confronted the Grievant about walking too slow on hisroute and spelling "S.L.O.W." in the manner that he did was a sarcastic anddemeaning act, which cannot be condoned. Finally ; Watson testified that thetactics reportedly used by Seiss were notacceptable under any circumstances.

Award

It is found that the supervisor's conduct on October 1,1996 towards the Grievantwas a violation of the Joint Statement and that local management be requiredto fully and fairly investigate employee complaints of violations of the. JointStatement. Further, local management shall be required to take appropriatecorrective action when violations of the Joint Statement arefound to have occurred.

C# 17586Arbitrator: K. McCaffreeDate of Decision: 12/8/1997

Issue

Did the Employer violate the Agreement at Articles 3, 5, 14, or 19 includingSection 115.4 of the M-39 or the "Joint Statement on Violence and Behavior inthe work place" by the behavior of Supervisor Richard Bernal toward LetterCarrier Cheryl Turpin on June 3, 1996? If so, what is an appropriate remedy?

Discussion

As the Employer proposed, three issues arose potentially in this grievance. Whathappened. Was what happened a violation of the Joint Statement or Articles ofthe Agreement? If what happened was a violation of the Agreement orassociated documents, what is the proper remedy? The latter would involve theissue of the extent of the jurisdiction and authority of the arbitrator.

What Happened?

The central issue of fact on what happened on the dock and in the parking lotbetween Turpin and Bernal on June 3 was whether the latter made an obscenegesture toward Turpin. As a finding of fact, I concluded for the following reasonsthat the supervisor more likely than not did make the gesture.

First, Battaglia gave positive and affirmative testimony as to what she saw,described it in some detail, and was unshaken in examination on what she saw.

Although she stood some distance from the dock where Bernal was, the natureof the movement by Bernal, from the hip to above his head, could readily beseen by Battaglia from her, position in the parking lot some forty to fifty feetaway.

Second, the circumstances at the time were such that the gesture would nothave been unexpected. Bernal believed that he arranged for an interview at theend of Turpin's shift, and when Turpin clocked out and left without contactinghim, Bernal would reasonably have been "put out," "irritated," "exasperated," oreven "angry" with Turpin. These feelings increased reasonably when Turpin'snear insubordination occurred in her comments to Bernal from the middle of theparking lot. Even though Turpin had clocked out, she was still on 'Employerpremises and subject to the direction and authority of supervision, and herunwillingness to return or even discuss the matter with Turpin was provocativeand insubordinate. Since Bernal had no way to restrain or to confront Turpin asshe went on her way to her car and home, a gesture of the kind reported byBattaglia would not necessarily be unexpected from a percentage of persons.Because of the conflict between Turpin and Bernal, I concluded that Bernal'sincentive to do what Battaglia asserted was high, and thus that he more likelythan not succumbed to the temptation to "flip her off."

Third, the testimony of Shipp harmed more than assisted in establishing thecredibility of Bernal's story on what happened. Shipp admitted that he changedhis story between what he told Mr. Ryan of the Union and what he testified at thehearing. Further, under examination by the arbitrator, Shipp could not affirmwhether he signed Bernal or Bernal signed him first, even though in a writtenstatement Shipp asserted that Bernal followed him, after Shipp laughed (J 2, p.49). But Bernal's statement asserts that Bernal made the peace sign first, andShipp responded (E 1). Also, Shipp admitted that it had been several monthssince the incident and that he probably had changed what he recalled about theincident.

Finally, I have discounted the remaining allegations about disrespectful conductof Bernal towards Turpin. Clearly this was a two way street, with problems ofperformance on the part of Turpin, whose conduct in the parking lot wasanything but cooperative. Any comments about Turpin being a "bitch," if true,were untimely raised, and even if true fails to demonstrate that Bernal did or didnot gesture inappropriately towards Turpin on June 3. Just because a supervisorfails to act exactly as eachcarrier, and in this case, Turpin and Battaglia, would desire does not mean thata violation of the Joint Statement or of Articles of the Agreement has occurred.

Thus, I concluded that the evidence was sufficient to conclude that more likelythan not, and thus by a simple preponderance of the evidence, Bernal did makean obscene and inappropriate gesture toward Turpin from the loading dock atthe Rose Station on June 3, 1996.

This arbitrator examined the concerns of the parties as expressed in the Joint

Statement in the North Hollywood decision, as noted above. Relevant here washis observation that "the nature and character of the relationship between andamong employees" is a matter of serious concern. The Joint Statement calls fora mutual respect of one for another, a recognition of a sense of dignity of personas aspects of that relationship, and amplification of Section 115.4 of the M-39 onthe maintenance of an atmosphere of mutual respect. It follows that theatmosphere of mutual respect in the work place is a preface to and thepreventive tool for the absence of violence and threats of violence (emphasisadded). The lack of treatment with dignity and respect of one to another is theprecedent to violence. In this sense the absence of an atmosphere of mutualrespect, a failure to treat one another with dignity, respect and fairnessconstitutes a serious and consequential deficiency in behavior. The partiesrecognized this in affirming in the Joint Statement that "those who do not treatother with dignity and respect will not be rewarded or promoted. Those whoseunacceptable behavior continues will be removed from their positions."

C# 17589Arbitrator: R. MaherDate of Decision: 12/13/1997

Issue

"Whether the USPS violated Article 14 of the National Agreement and the JointStatement on Violence in the Workplace and District policy? And if so, what shallbe the remedy?"

Opinion

The Arbitrator having heard the testimony of all the witnesses regarding thealleged incident of 11/16/96, finds supervisor Spost did exceed normal andcustomary instruction to subordinate, carrier Ortner. The Arbitrator is convincedSpost did yell, scream, jump around the Grievant and bang on the outside of thetub the Grievant was pushing at the time of the incident, and that Spost's tiradecontinued into the facility. This incident was witnessed by craft employees andcustomers. The Arbitrator finds Spost's actions equate to an unjust andunwarranted exercise of his supervisory powers and were meant to embarrassand degrade the Grievant and resulted in emotional injury and stress to theGrievant.

The Arbitrator finds Spost's actions towards the Grievant are violative of Article14 Section 1 (14.1), "It is the responsibility of management to provide safeworking conditions in all present and future installations and to develop a safeworking force..." The Arbitrator finds Spost's method in dealing with the Grievantand the resultant stress and harassment the Grievant felt as a result of Spost'sactions were unwarranted and thereby created an unsafe working environment.

Award

On the substantial and credible evidence of the case as a whole, the Arbitratorfinds the USPS violated Article 14.1 of the National Agreement, and the JointStatement on Violence in the Workplace and-District Policy on violence in theworkplace when supervisor Spost failed to treat carrier Ortner with dignity,respect and fairness causing the USPS to fail to provide a safe workingenvironment for carrier Ortner.

As and for the remedy, the USPS, within ten (10) days of receipt of said Award,shall issue, on behalf of supervisor Spost, a letter of apology to carrier Ortner forhis behavior towards Ortner on 11/16/96. The USPS shall post a copy of thisletter for ten (10) days on the bulletin board of the subject post office. The USPSshall also reinstruct supervisor Spost as to proper conduct when supervisingsubordinate employees in accordance with the Joint Statement on Violence inthe Workplace, as well as other relevant service and District policy directives.

C# 18524Arbitrator: S.R. TalmadgeDate of Decision: 7/21/1998

Issue

Was the National Agreement violated on November 21, 1997 by the actions ofSupervisor Prekopa? If so, what shall the remedy be?

Finding of Fact

On the day of the incident, November 21, 1997, the Grievant, William O'Rourke,a seasoned letter carrier for twenty-eight years, was working at the OceansidePost Office. On that day, in accordance with standard procedure, 204BSupervisor Glen Prekopa (who has worked over 11 years with the Service, thelast two of which as a 204B supervisor) came by the Grievant's case in themorning and asked him how long he would need to maintain eight hours. TheGrievant testified that he responded "45 minutes to one hour". The supervisorreplied that it should not take 45 minutes to an hour to pull down. The Grievantanswered, "Not to pull down - that's how long it takes to get out of the office". Incontrast, Prekopa testified that the Grievant said that it would take him "one hourto pull down his route". Prekopa noted that it normally takes the Grievant % hourto pull down his route, and that never before or since has the Grievant statedthat he needed an hour to pull down his route. Prekopa pointed out that whenhe asks a carrier "how long are you going to be", a reply of 45 minutes to onehour indicates that the carrier will need overtime. If it seems excessive, Prekopainquires further. Prekopa did not observe the Grievant pulling down his route.The parties stipulated that the Postal Service supervisors did not see theGrievant doing anything wrong. Prekopa reported to Francis O'Neill, Managerof Customer Services, that the Grievant needed one hour to pull down his route.

O'Neill directed Prekopa to give the Grievant demonstrative instructions afterO'Neill had an opportunity to speak to the Grievant. O'Neill felt that if theGrievant needed one hour to pull down his route that was excessive, and wantedPrekopa to show him how to pull down the route efficiently. Shortly thereafter,O'Neill came by the Grievant 's case and said that he had never heard of anyonetaking 45 minutes to one hour to pull down the route. O'Neill testified that theGrievant told him it would take one hour to pull down the route. The Grievanttestified that he again responded, "Not to pull down - that's how long it takes toget out of the office". O'Neill replied that it would only take him twenty-fiveminutes to pull down the route.

The Grievant had worked that same route for fourteen to fifteen years. TheGrievant testified that during those 45 minutes he was going to throw his onefoot of mail, tie up the holds, take the forwarding and bring the mis-sent mail tohis route. Then he would get his coat from the locker, and stop at the restroombefore going to his car.

Prekopa returned to the Grievant's case and stated, "I 'm going to give youdemonstrative instructions and pull the route down ". The Grievant said, "Whatare you doing ?" The supervisor directed the Grievant to stand back and watchhim pull down the route. The Grievant sat down on his desk and watched.Prekopa pulled down the route in 24 minutes. However, Prekopa did not pull outholds or forwards. Prekopa left the Grievant 's case. He did not observe theGrievant further. The Grievant noted that from the time his supervisor pulleddown the route until the Grievant punched out to go to the street, 44 minuteselapsed, which he reported to O'Neill.

The Grievant testified that he felt belittled and embarrassed. The other carriersobserved the interaction. One of the carriers said to the Grievant, "Can't you pullthe route down?" The supervisor did not give the Grievant instructions whilepulling down the route, he only asked for the Grievant's park points. At no timedid the supervisors use inappropriate or derogatory language.

Decision

I find that Prekopa's conduct towards O'Rourke exceeded the bounds ofmutual dignity and respect. Although supervisors are entitled to give employeesinstructions, Prekopa's actions went beyond being instructive and becamedemeaning and embarrassing to the Grievant. After twenty-eight years as aseasoned carrier, the Grievant had not been informed of any performanceefficiency concerns by his supervisor until November 21, 1997. The Servicestipulated that on that day they did not observe the Grievant doing anythingwrong. In fact, they did not observe his work performance prior to giving himdemonstrative instructions. His supervisor assumed that if the Grievant neededmore than the usual 1/2 hour to pull down his route, he must have beenperforming his job inefficiently. However, particularly in light of the Grievant'slong service and unblemished record, it is surprising that his supervisors did notgive the Grievant the benefit of the doubt and seek further clarification about why

on this occasion he might need additional pull down time, or consider whethera misunderstanding had occurred. Even if management believed in good faiththat some instructions Arbitration decision continued concerning theperformance of the Grievant's job would help improve his efficiency, it wouldhave been more professional and respectful to discuss their concerns with himprivately, or at the very least, to provide demonstrative instructions for a brief fiveminutes or so, and then pen-nit the Grievant to complete his work. When, withoutexplanation, Prekopa pulled down the Grievant 's whole case for twenty-fourminutes while directing the Grievant to watch, Prekopa's actions exceeded anappropriate amount of time for providing instructions, and resulted in thesupervisor performing bargaining unit work. I credit the Grievants testimony thathe felt embarrassed and humiliated while his co -workers observed Prekopa'sactions. Consequently, I find that Supervisor Prekopa did not comply withSection 115.4 of the M-39 in violation of Article 19 of the National Agreementwhen he failed to perform his duties in a respectful and considerate mannertowards the Grievant.

Under the facts of this case, an apology from Supervisor Prekopa to theGrievant, for failing to maintain an atmosphere of mutual respect when providinginstructions to the Grievant on November 21, 1997, is an appropriate remedy.There is precedent for such a remedy in Arbitrator Donald Olson 's decisionUSPS and NALC, [Case No. F94N-4F-D 96078791 (February 24, 1997)] inwhich he ordered a supervisor to issue a written apology, to be posted for 15days, to the grievant for the supervisor's inappropriate conduct. In this case, asthe Union has requested, Supervisor Prekopa is directed to issue either an oralapology to the Grievant on the workroom floor or a written apology to be postedat the Oceanside Post Office for a period of one week.

Award

I find that Supervisor Prekopa' s actions on of the National Agreement November21, 1997 violated the terms. Accordingly, the grievance is sustained. As aremedy, the Service shall direct Supervisor Prekopa to present either an oralapology to Mr. O'Rourke on the workroom floor, or a written apology, to beposted for one week at the Oceanside Post Office, for failing to maintain anatmosphere of mutual respect toward the Grievant on November 21, 1997.

C#18864Arbitrator: T. SharkeyDate of Decision: 10/31/1998

Issue

The parties agree that the issue before the Arbitrator is as follows : "Did the U.S.Postal Service violate the Joint Statement on Violence in the Workplace? If so,what shall be the remedy?

Discussion and Findings

Just as the parties' mutually suggest, the issue is one of credibility. The grievantclaims an effrontery was made to him by the manager and the manager deniesever saying any such things. However, although the service argues that thetestimony of Shop Steward Hamil should be discounted because they claim hehas a vested interest, he does offer ear-witness testimony. If that were all therewas to support grievant's claim, it would be more difficult to find that the Unionhas supported its claim and managed its burden of proof by a preponderance ofevidence. That standard requires that the party with the burden of proof, in thiscase the NALC, must prove that the evidence and testimony offered indicate thatthe events and /or circumstances and/or conversations, more likely than not,took place as described by them. I must conclude that the Union has done so forthe reasons that follow.

Manager Keating ' s testimony that he was having a conversation aboutunemployment in America in general simply was not credible. If in fact hispresence in the vicinity of grievant's work area was to ensure that grievant wasdiligently pursuing his duties, conversation with him would have been adistraction and counterproductive to the stated purpose of being on the scene.Moreover, if the conversation was with employees other than grievant, no onewas brought forth to offer such testimony. Neither could Manager Keatingprovide anyone's name who was party to such conversation. Keating admittedthat grievant receives more supervisory management than others, which in andof itself is nonviolative and perhaps necessary and proper. However, the tale asit unfolded sounded more like the manager was "riding " grievant for some timeand showed him little or no respect. In the face of all of that and with the sworntestimony of grievant solidly supported by Hamil, the conclusion that Keatingdirected the remarks, "You'll be on the unemployment... You'll be getting anunemployment... " and with absolutely no support or corroboration of themanagement version, is inescapable. I believe that Keating uttered these words,that they were specifically intended for grievant, that they were intentional andthat the words were intended to demean and intimidate grievant.

Further, I believe Keating's conduct was part of a pattern, a "program" to be ongrievant's case. I cannot judge if grievant is a good, fair or poor employee, norwas I asked to make such a determination. I do know, however, that nomanagement handbook, manual or training module, advocates or endorses suchtactics as solid management performance.

The Matter of Remedy

There is no question that Arbitrator Snow has clearly articulated that challengesto the implementation or lack thereof of the Joint Statement on Violence in theWorkplace have standing in the grievance and arbitration forum. It is equallyclear that the Arbitrator, deciding that this policy, part of Article 19, has beenviolated, has the authority to fashion a remedy. While there may be some as yetuntested waters as to the how severe or in what fashion such remedy may take

form, I firmly believe that my finding and award will be well within the bounds ofarbitral authority. Based on all the above, I find and make the following

Award

The management of the New Dorp Station be made aware that the conduct andmanner portrayed in this case by Manager Keating is unacceptable. That noticemay be made by the issuance of a memo from some authority outside of theNew Dorp Station, with authority greater than that of Manager Keating or byproviding each supervisor there a copy of this decision to be read by eachsupervisor upon receipt.

C# 21402Arbitrator: M. FischettiDate of Decision: 11/25/2000

Issue:

Has the postal supervisor repeatedly harassed the grievant, throughphysical and mental intimidation, and if so, what is the appropriateremedy?

Discussion

The preponderance of the evidence appears to present a compelling descriptionof the supervisor who is, at the very least, not treating employees with therespect and dignity that is required under the Agreement between the parties.As one Union witness described, Supervisor Stull's demeanor appears to havebeen more along the lines of a military drill instructor. One of the concerns thatthe Union has raised is that Supervisor Stull has committed acts of violenceagainst the grievant in his repeated verbal attacks. The Union, in U-1, alsointroduced into evidence a National Arbitration Panel case (Q90N-4F-C-94024977/94024038) by Arbitrator Snow, which ruled that the joint statement onviolence in the workplace was an appropriate contractual manner between theparties. The individual circumstances behind the issue considered in the twocombined cases were tragic. Verbal altercations between postal supervisors andtheir employees led to extreme situations. One of the interesting aspects ofArbitrator Snow's decision is that he draws from a Supreme Court decision(United Steelworkers of America v. Enterprise Wheel & Car Corn. 363 U.S. 593(1960)). In that case the Court made it clear that an arbitrator is a "creature ofcontract," and an arbitration award is enforceable "only so long as it draws itsessence from the collective bargaining agreement.”

In considering an appropriate remedy in this case it is possible to sustain thegrievant only in part, for there is no provision in the Agreement that provides fora punitive award. The Union's request that the grievant receive one hundreddollars a day would be characterized as punitive, and thus outside the

perimeters of the Agreement. Quoting again from the same Supreme Courtcase, Arbitrator Snow (at p.22) notes as follows : ".... the need is for flexibility inmeeting a wide variety of situations. The draftsman may never have thought ofwhat specific remedy should be awarded to meet a particular contingency."Accordingly, this Arbitrator is constrained from making a monetary award to thegrievant. It is appropriate, however, that Supervisor Stull cease and desist thepractice of requiring the grievant to do things differently from other carriers at theNorwood Station. It is also appropriate that the grievant receive a verbal apologyin front of his peers for Mr. Stull's unacceptable behavior. A question remains,however, and that is, what corrective action can be taken by Management toeffectively improve the situation ? The Arbitrator would suggest that thesupervisor be given additional supervisory training in interpersonal relationsand/or that hevoluntarily receive EAP counseling. Based on the testimony of witnesses and thestrong concerns they conveyed during the hearing, the Arbitrator would requestthat the above suggestion receive serious consideration.

Award

For the reasons cited above the grievance is sustained in part, in that SupervisorStull will: (1) cease and desist the practice of requiring the grievant to do thingsdifferently than other carriers; and (2) make a verbal apology to the grievant infront of his peers for having behaved inappropriately. The request for a monetaryaward is denied.

C# 21404Arbitrator: W. DolsonDate of Decision: 11/30/2000

Discussion

The issue in this arbitration is whether Charles Sorenson and/or the PostalService violated any of the following provisions, Articles 3, 14, and /or 19 of theNational Agreement and/or the Joint Statement on Violence and Behavior in theWorkplace (Joint Statement )? If so, what shall be the remedy?

In the present situation Sorenson possesses power in his relationship withemployees who he directs at the station. His power is derived from Article 3 ofthe National Agreement. This power, however, is subject to provisions of theAgreement and as well as agreements such as the Joint Statement. Uponexamining the record, I find that a pattern can be detected regarding Sorenson'srelationship with carriers who are under his direction. This pattern is one ofintimidating and bullying employees, behavior which the Joint Statementproscribes. It also includes harassment and veiled threats.

The Postal Service attempts to characterize his actions as merely being on oneside of the usual spectrum of various managerial styles that may be found in

stations. But the records show that on two occasions his dictatorial orauthoritarian conduct went beyond the boundary of the spectrum. Plainly, it wentbeyond the limits set in the Joint Statement.

...The first example of Sorenson's actions which violated the Joint Statement washis going to Fortman's home. In my opinion, Sorenson's reason for going toFortman's home on May 11, 1999 and talking to him was to determine whetherFortman was well enough to report to work. He decided to do this even thoughhe had received a doctor's slip indicating that Fortman had been injured. Thedoctor's slip stated that he should stay home a few days.

...In his stand-up talk on July 30, 1999, Sorenson delivered a 25 minuteharangue to the carriers about taking too much overtime to deliver mail on a daywhich was extremely hot. He told the carriers to "get it done or else," accordingto letter carrier Ciaramitaro. She testified that the carriers spoke up and toldSorenson that his talk was threatening. She testified that the talk created suchstress that she considered going home "sick." She stated that Sorenson said ifthere is anyone who thinks they are sick there are resignation forms in my office.Letter carrier Keith Frederick's testimony corroborates Ciaramitaro's testimony.

Fortman was one of the letter carriers who spoke up during Sorenson's talk. Hetold Sorenson that his statements were threatening. According to Fredericks,Ciaramitaro and Fortman, when Fortman spoke up, Sorenson singled outFortman by stating, "I will make sure you are the first one to go."

...In addition to violating the Joint Statement, Sorenson and the Postal Serviceviolated similar mandates found in Section 666.2 of the Employee and LaborRelations Manual (ELM) i.e., "Employees [in this case Sorenson] are expectedto maintain satisfactory personal habits so as not to be obnoxious or offensiveto other person or to create unpleasant working conditions" and Section 115.4of the M-39, i.e., "it is the front-line manager [in this case Sorenson] who controlsmanagement's attempt to maintain an atmosphere between employer andemployee which assures mutual respect for each other's rights andresponsibilities." Manual and Handbook Provisions are part of the NationalAgreement pursuant to Article 19, and therefore, the violation of these provisionsis a violation of the National Agreement by the Postal Service as well asSorenson.

...As I have said Arbitrator Snow's Decision indicates that where a member ofmanagement violates the Joint Statement, an arbitrator has the authority tofashion an appropriate remedy.

Accordingly, I make the following Award.

AWARD

Grievance [#1 and #2] are sustained for the reason that Station ManagerCharles Sorenson and the Postal Service violated Article 19 of the National

Agreement (Section 666.2 of the ELM and Section 115.4 of the M-39) and theJoint Statement on Violence and Behavior in the Workplace(Joint Statement). The remedy shall be :

1. Sorenson and the Postal Service are ordered to cease and desist fromviolating the Joint Statement and Article 19 of the National Agreement ;

2. Within 30 days Sorenson is ordered to make an apology to Ed Fortman inwriting for going to his home on May 11, 1999 and for what he said toFortman while he was there ;

3. Within 30 days Sorenson is ordered to make an apology to Fortman inwriting for the threat he made to him, i.e., "I will make sure you are the firstone to go " at the Gravois Station on July 30, 1999 during his stand-up talk;

4. Within 30 days Sorenson is ordered to make an apology in writing to allletter carriers at the Gravois Station for the stand-up talk he delivered thereon July 30, 1999, including the comments he made to them regarding theavailability of resignation forms, quitting the Postal Service and/ortransferring out of the Gravois Station if they did not like their jobs;

5. Sorenson is ordered to have a Union Steward present (other thanFortman) whenever he talks to Fortman; and

6. The Postal Service shall be responsible for Sorenson ' s compliance withthe abovementioned orders.

C# 22009Arbitrator: M. LurieDate of Decision: 4/24/2001

Issue

The parties stipulated that the following was the issue : Did SupervisorCrutchfield violate the Joint Statement on August 2, 1999 and, if so, what is theproper remedy?

Decision

As its caption indicates, the Joint Statement addresses, respectively, (1) violenceand (2) behavior in the workplace (emphasis added). The Violence and Threatparagraph addresses "violence or any threats of violence" and then prohibits

harassment,Intimidation,threats, orbullying.

The listing of these four activities relates to the prohibition against violence orthreats of violence - physical harm or the threat of such harm; not harassmentfor solely the purpose of engendering indignity or submissiveness. On the other

hand, the Dignity and Respect paragraph prohibits actions that do not entail thethreat of physical harm but that are nonetheless "abusive" in that they demeanor humiliate. This paragraph is aimed primarily at managerial misconduct ; forexample, it discounts "Making the numbers" as a rationale for engaging inunacceptable behavior, and admonishes that "Those whose unacceptablebehavior continues will be removed from their positions." Generally, a singleviolation of the Violence and Threat provision of the Joint Statement, i.e. a threatof imminent injury, whether by a manager or line employee, warrants seriousresponse, including possible removal. However, individual violations of theDignity and Respect provision are patently less egregious.' The harm that canarise from such violations lies in their repetition, and in the rage that can beengendered by the perception of persistent injustice and denigration. Theobvious purpose of the Dignity and Respect paragraph is to prohibit the repeatedexercise of managerial authority for the primary purpose of subjugating the egoof an employee ; i.e., for the primary purpose of showing the employee who isboss, rather than for the primary purpose of accomplishing a bona fideoperational task. This is a methodology that is well -suited for the military, butthat has no place in civilian life.

It is the Arbitrator's finding that, in the instant case, both parties - GrievantRoberts and Supervisor Crutchfield - were at fault. Theirs was a test of wills, butin the vernacular of the peculiar relationship that had evolved between them :The Grievant had an obvious sense of self-importance that, when challenged,was a hair-trigger for anger. And Supervisor Crutchfield, recognizing this,persistently and deliberately charged the Grievant with relatively unimportantviolations, pulling that trigger. Supervisor Crutchfield used the Grievant'scharacter flaw to defeat him and, in so doing, violated the Dignity and Respectparagraph of the Joint Statement.

Supervisor Crutchfield was the person in charge ; he should have stopped thistest of wills when the Grievant manifestly started to lose control of his emotions.He, and O.I.C. Barlow, who shares responsibility for what ensued, should havestopped the cycle of provocation and response. At some point, the emotionalloss of control evidenced by the Grievant should have been recognized as amore important operational factor than whether his seat restraint had beenproperly set, his wheels properly curbed, or his lunch time properly observed. Atthat point, a competent supervisor would have taken a step back and eithercalmed the Grievant down, or asked for help from a supervisor with bettercommunications skills. Instead, Supervisor Crutchfield did not relent. Instead, hepersevered in this test of wills and ostensibly prevailed when the Grievantwalked out the door. But this is the very kind of employee response that the JointStatement was intended to avoid. Would it not have been within the realm ofpossibility that the Grievant might have vented his outrage and sense of futilityby coming back to the Kernersville Station armed?

C# 22411Arbitrator: J. GoldsteinDate of Decision: 7/27/2001

Issue

Whether the behavior of 204B supervisor Bonine and failure of Management tostop this violated the, "Joint Statement of Violence In The Workplace", and byextension Article 15 and 19 [M39 Handbook]? If so, what shall be the remedy?

Findings and Opinion

...Discussed below at some length, the evidence of Ms. Bonine's inappropriatebehavior as a "2046" was credible and, overwhelmingly clear that she did not,and still could not after corrective action, maintain even the most rudimentarystandards of dignity and respect for the employees under her authority. ThisArbitrator was persuaded of such behavior both expressly by the Union'snumerous witnesses and tacitly, by the sole Management witness.

...Five (5) Letter Carriers testified credibly and succinctly ; articulating thebehavior of this 204B. From, "talking to me like a child ", continuously " raisedher voice ", "caused a lot of anger on the floor by talking down to you " [CarrierMerrell] ; to, "bullying attitude... 2-3 times a week... (inconsistent)... ordering howmuch time to take when my Supervisor ordered differently " [Carrier Taylor]; to,"calling another carrier a dumb ass" [Carrier Sneed]. In addition, there wastestimony and, signed statements attributing foul language, harassment, andcontinual tension on a daily basis to Ms. Bonine.

...In summary fashion however, the totality of the evidence pointing toManagement's inappropriate failure to correct a blatantly abusive and ongoingsituation involving behavior inconsistent with the "Joint Statement ", is a violationof the National Agreement. Invoking the rationale of the U.S. Supreme Court ininterpreting the "Joint Statement" [Steelworkers vs. Enterprise Wheel ; 363 US593 (1960)]...

Award

The grievance is sustained. Allowing a pattern of ongoing, abusive behavior byan acting "204B" supervisory employee to continue unabated was a violation ofthe National Agreement and actionable. The evidence of same being clear andno indication by Management of halting possible reappointment, the following isdirected.

1. Management shall cease and desist from re-appointing Brenda Bonine toany position involving supervisory authority over Letter Carriers within a250 mile radius of Chattanooga, Tennessee, for a period of two (2) yearsfrom the date of this Award.

2. If Ms. Bonine applies for and receives any other supervisory position (i.e.

Carrier or non-Carrier) Management shall issue her a final warning thatany repeat behavior of the manner described herein shall thereafter because for immediate discharge.

C# 22937Arbitrator: J. ImhoffDate of Decision: 1/5/2002

Issue

Was the Joint Statement on Violence and Behavior in the Workplace violated bySupervisor Patrick Timothy's behavior toward the Grievant, Rosita Thompson onJune 4, 2001? If so, what shall be the remedy?

Background

On June 4, 2001 Acting Supervisor Therone Evans asked Supervisor PatrickTimothy to speak to Limited-Duty Carrier Rosita Thompson about leaving herduty assignment on Window #7. Supervisor Timothy allegedly looked for CarrierThompson and then went to her window to wait for her. Upon CarrierThompson's return, Supervisor Timothy allegedly spoke in a very loud voicebefore three other window clerks and the customers in the lobby at the FlatbushStation, repeatedly directing Ms. Thompson to stay at her assignment. Ms.Thompson became emotionally upset to the point where she had to leave theworkplace. The Union filed a grievance claiming that Supervisor Timothy violatedthe Joint Statement on Violence and Behavior in the Workplace and asking thathe be terminated from the Postal Service. This was the fourth occasion in whichhe had been charged with behaving in a harassing manner toward employeesunder his supervision. The case was impassed by the Dispute Resolution Team(DRT) and moved to arbitration. A hearing was held on December 17, 2001 atthe postal facility on Forbell Street in Brooklyn, New York. The record was closedon that date.

Discussion

There is no dispute here that the alleged behavior occurred. Two witnessestestified that the supervisor's voice was so loud they had difficulty hearingcustomers. Moreover, Supervisor Timothy acknowledged at the hearing that heraised his voice when he told Carrier Thompson to "stay at her assignment." ThePostal Service claimed that Supervisor Timothy had a right to counsel CarverThompson because she had been absent from her window so frequently thatthere were complaints from other window clerks. Additionally, the Serviceclaimed Carrier Thompson allegedly followed Supervisor Timothy on June 4,yelling at him not to harass her. The Union responded that Carrier Thompsonwas not disciplined for her behavior in the incident and that, furthermore, it wasincumbent upon the supervisor to counsel the carrier in a calm, non-threateningmanner.

I agree with the Union. Whether or not the carrier's behavior also could havesubjected her to discipline is not at issue. The issue is whether the supervisor'sbehavior rose to the level of violating the Joint Statement on Violence andBehavior in the Workplace (hereinafter referred to as the Joint Statement) and,if so, whether an arbitrator has a right to discipline a supervisor who, underArticle 1.2, is not a party to the National Agreement.

...The arbitrators of those awards written after the adoption of the JointAgreement unanimously agreed with Professor Snow that the parties are boundby the provisions of the Joint Agreement ; that it is an enforceable document andthat grievances regarding the compliance with its terms can be arbitrated.However, there were divergent opinions concerning the remedies permissibleunder the Snow award.

Arbitrator Donald Olson, Jr, in Case No. F94N-4F-C96048620 (February 9,1997), P. 10, found that he had no authority or jurisdictional power to deal withthe Union's request for removal. He stated: "The jurisdiction and authority of thisArbitrator is limited by the National Agreement. Articles 1.2 and 3 expresslyexclude supervisory personnel from the Agreement's coverage and reserve untomanagement the exclusiveauthority to deal with supervisors on disciplinary or administrative matters."

In a second case (Nos. F94N-4LF-D96078781/F94N-4F-F96088089) datedFebruary 24, 1997, Arbitrator Olson required a written apology for inappropriateconduct toward an employee and directed that a copy of the letter be posted bythe time clock in the carrier's station.

Arbitrator (Larry Wooters in Case No. A94N4AC9702718796NC823 (March 10,1998 ), P. 19, found, "The Joint Statement did not, however, repeal themanagement rights language of the contract. Nor did the Joint Statementexpressly grant to regional arbitrators the right to initiate discipline ofsupervisors." The remedy recommended in the Wooters case was that a noticebe posted indicating violence will not be tolerated in the workplace.

Arbitrator Linda Byers in Case No. G98N-4G-C 01123019, (August 19, 2001)decided that an arbitrator is without authority to order an employer to disciplinesupervisory employees even under the Joint Agreement. She found that the factthat an arbitrator finds a supervisor in violation of the Joint Agreement serves asa disciplinary warning to the supervisor to correct his behavior.

Arbitrator Raymond L Britton, (Case No. K94N-4K-C98111598, March 15, 2001)removed a postmaster from the Postal Service after finding that he hadphysically assaulted and harassed a letter carrier. He offered no interpretationof the Snow award.

Arbitrator Kenneth M. McCalee (Case No. F90N-4F-C95 065124) found that theJoint Statement has "extended the National Agreement to cover supervisors for

violations of the Joint Statement." (P. 19)

I concur with Arbitrators Byars, Wooters and Olson that Article 1.2 of theNational Agreement expressly excludes managerial and supervisory personnel.The Snow award did not change that. A bargain was made, and the bargain wasto ensure a workplace free from violence, harassment, intimidation, threats, andbullying ; a workplace where employees would be treated fairly and with respectand dignity. The Postal Service has disciplined bargaining unit members whoseactions have violated the terms of the Joint Agreement, and the Union has anequal right to have the bargain upheld when a supervisor ' s actions violate it.

The Joint Agreement does not address enforcement. Professor Snow reasonedthat, since an enforcement procedure was not set forth in the agreement, it wasreasonable to assume that the parties intended to use the negotiated grievanceprocedure as set forth in the National Agreement for settling disputes under theJoint Agreement. In addressing remedy, Professor Snow explained:

"arbitrators have available to them the flexibility found in arbitraljurisprudence when it comes to formulating remedies, includingremoving a supervisor from his or her administrative duties.(emphasis added) P. 22

There are many remedies other than discipline found in arbitral jurisprudence,e.g., monetary reimbursement, apologies, and recommendations for assistance.However, Professor Snow explicitly mentions removal from administrative duties.That recommendation is consistent with the language of the Joint Agreement,the fifth paragraph of which specifies that:

"Those who do not treat others with dignity and respect will not berewarded or promoted. Those whose unacceptable behaviorcontinues will be removed from their positions." (emphasis added)

Even though the supervisor is excluded from the collective bargainingagreement, the Postal Service can take action in an agreement to which it is aparty. It is clear from the record that the supervisor ' s actions have violated theJoint Agreement in spite of the remedial action taken. Therefore, the PostalService has a responsibility to take further action to uphold its bargain with theUnion. Upon receipt of this award, the PostalService is directed to remove Supervisor Patrick Timothy from all supervisoryduties involving craft employees.

C# 23408Arbitrator: M. FischettiDate of Decision: 5/29/2002

Issue

Did Management violate Article 19, specifically the ELM section 666.2 and the

Joint Statement on Violence in the Workplace? Moreover, did denying theemployees the right to consult their steward violate Article 17, and if so, what isthe proper remedy?

Discussion

The Service has argued that Supervisor Tucker came into the Vandalia facilityand found performance deficiencies with some of the letter carriers. The Servicestated that Post Master Matthews had previously discussed the matter ofunsatisfactory performance with the carriers in question. Management found it"disconcerting" that the Union brought forth only five carriers out of twenty-eightat the Vandalia facility since the allegation was that Supervisor Tucker createdsuch a hostile work environment. It maintained that the Union should have beenable to produce additional witnesses to prove its case. In addition, Managementcontended that except for the five carriers who had been cited for performancedeficiencies there were no other witnesses or evidence presented.

The Service has made a valiant effort to defend Mr. Tucker. Unfortunately, hisown testimony belies some of the problems that he is alleged to have committed.After carefully considering the testimony and evidence presented by the parties,the Arbitrator concludes that Mr. Tucker violated the Joint Statement. Heharassed, intimidated, demeaned, and abused letter carriers at the Vandaliapost office during his two-week assignment there. Moreover, he refused to allowcarriers to contact their Union.

The question is not just to deal with the violation, but also to craft an appropriateremedy. The Service argues that its supervisors are not subject to disciplineunder the provisions of the National Agreement, and that an arbitrator would beexceeding his or her authority by imposing discipline. This may or may not be thecase as the arbitral community appears divided on the issue. In the FederalDistrict Court case cited previously, the Service brought forth severalcontentions. First, the Arbitrator did not have the authority to order sanctionsagainst the supervisor. Second, the arbitration Award deprived the supervisorof his due process rights under the U.S. Constitution. Finally, the Award deprivedthe supervisor of his statutory right to appeal to the Merit Systems ProtectionBoard. The Court was unsympathetic to the Services's contentions on all threegrounds. During the course of this instant case the Service presented ELM 650,and stated that if discipline were to be initiated against a non-bargaining unitemployee, it would be appropriate only under these provisions of the ELM. It isobvious that one Federal District Court judge, and at least two Arbitrators do notagree with the view. While sustaining the Union, the Service should have theopportunity to take appropriate action by doing the right thing, i.e., to instituteproceedings against Mr. Tucker under the provisions of ELM 650. Managementmay contend that the Arbitrator is exceeding the authority vested under theNational Agreement, but the alternative would be to render an award similar toArbitrators Bajork and Fields. Arbitrator Snow was clear in his National Awardwhen he stated at page 22 as follows : "The grievance procedure of the NationalAgreement may be used to enforce the parties' bargain, and arbitrators have

available to them the flexibility found in arbitral jurisprudence when it comes toformulating remedies, including removing a supervisor from his or heradministrative duties."

One point needs to be made clear, and that is that the Service will instituteproceedings against Mr. Tucker within sixty days of this Award or the Arbitratorwill craft an Award that will be similar to that of Arbitrators Bajork and Fields. Inother words, the Service is being given the opportunity to show its good faith, i.e., that it means what it says as a signatory to the Joint Statement of Behaviorand Violence in the Workplace.

Award

Based on the testimony and evidence the Union has met its burden of proof toshow that the Supervisor violated the Joint Statement on Violence and Behaviorin the Workplace. The Arbitrator is ordering the Service to institute disciplinaryproceeding under ELM 650 againstSupervisor Tucker within sixty days or the Arbitrator will craft an appropriateamended Award. The grievance is sustained.

C# 23874Arbitrator: L. RobertsDate of Decision: 11/25/2002

Issue

Whether or not a Supervisor violated the National Agreement? If so, what is theproper remedy?

Discussion and Findings

In their post-hearing brief, the Employer insisted the Joint Statement was "neverintended to grant the NALC and Regional or Expedited Arbitrators authority tocontrol supervisory duties, promotions, discipline, reassignments, meritincreases, or other administrative issues involving supervisors, through the craftgrievance procedures."

But Management ' s arguments in this case were clearly opposite the findingsof Arbitrator Snow. His decision is unambiguous regarding arbitral authority inthe formulation of remedies. In fact, Arbitrator Snow clearly suggests that anyremedy, up to and including the removal of a supervisor from administrativeduties, would be appropriate.

The Employer also cited a United States District Court decision (Civil No. JFM-01-1447 ) wherein a United States District Judge overturned an Arbitrator 'sAward which removed a Supervisor.

...Contrary to Management ' s argument, the District Judge did not vacate theBritton Award on the basis of arbitral jurisdiction. Rather, Judge Motz pointed outthat Arbitrator Britton exceeded the boundaries set forth in the Joint Statementby ordering removal based on only a single occurrence. The Employer alsopointed out that supervisors are free to appeal any adverse arbitral decision withthe MSPB, ELM 650 and/or EEO. And the Agency insists that should any appealresult in a contrary finding, Management would be in an untenable position.

Award

The instant grievance alleged a violation of the Joint Statement on Violence andBehavior in the workplace. it was shown by the Union that a Supervisor clearlyviolated the terms and conditions of that Statement. However, the union'srequested remedy of removal was reduced to an order requiring the Supervisorto complete a sensitivity training program and until such time that her training iscompleted, she shall be either relieved of her supervisory duties or reassignedto a non-supervisory position.

C# 24379Arbitrator: D. OlsonDate of Decision: 6/20/2003

Issue

The Arbitrator frames the issue(s) as follows :

Did any management personnel of the Employer at the Concord, Californiapostal facility violate Articles 14, or 19 of the 2001-2006 National Agreement, aswell as the Joint Statement on Violence and Behavior in the Workplace, bycreating a hostile work environment for a bargaining unit employee on or aboutJanuary 6, 2003? If so, what is anappropriate remedy?

Discussion

...Based upon the evidence of record, this Arbitrator concludes the Union hasprovided enough evidence to have its grievance sustained in this case in thatSupervisor Zabat's actions on January 6, 2003, were a violation of the terms andconditions set forth in the Joint Statement on Behavior in the Workplace. Clearly,this Arbitrator finds her statements made in the presence of the Grievant on theworkroom floor to have been made in a hostile manner, with an intended effectof being intimidating. Obviously, the Grievant was in a highly agitated/emotionalstate after Supervisor Zabat claimed she was the "late supervisor" and saidsomething to the effect of "I will have a lot of you (the Grievant) tonight". Ofcourse, when an individual attempts to "intimidate" by a veiled threat, they arein effect attempting to make the person they are directing their comment towards

to become timid by their implied threat. Of course, Supervisor Zabat in this casegot the exact reaction she was seeking from the Grievant, that is, the Grievantwho already feared Supervisor Zabat, became emotional and started to cry,which led her to eventuallyreport to the Kaiser Hospital emergency room. In this Arbitrator's opinionemployee's of the Employer while working have a right to expect a safe workingenvironment in accordance with the intent of the Article 14 of the NationalAgreement. The evidence in this case indicates that Concord management, thatis, specifically Supervisor Zabat violated the provisions outlined in Article 14 ofthe National Agreement, as well as the terms outlined in the Joint Statement onViolence in the Workplace by her intimidating, and bullying tactics directedtowards the Grievant. Theevidentiary record indicates that prior to this dispute arising on or about January6, 2003, that Supervisor Zabat was involved in several other incidents of thesame or nearly same type of conduct, which culminated in this grievance beingfiled. As a matter of fact, on December 20, 2002, the parties Step "B" teamrendered a decision involving Supervisor Aurora Zabat, in which it concludedthat she had violated Article 19 of the National Agreement/JCAM, Section 115.4of the M-39 Handbook and the Joint Statement on Violence and Behavior in theWorkplace. In that case, it was found that Supervisor Zabat had called theaggrieved part "a prostitute". In another case, the Step "B" team concludedSupervisor Zabat on August 6, 2002 was yelling in a hostile tone and stated toa Union Shop Steward, "You think you know the National Agreement. You don'tknow SHIT!" In another incident on November 2, 2002, Supervisor Zabatverbally and physically accosted employee Blanco Salguero.

The conduct displayed by Supervisor Zabat in this case, has been going onsince September 25, 1995. In case number F94N-4F-C96024091 this Arbitratorconcluded that Supervisor Zabat directed an inappropriate remark towards abargaining unit employee, which was uncouth and contained foul language. ThisArbitrator recommended to the Employer at that time, that Supervisor Zabatreceive appropriate discipline for having made an inappropriate remark(s) toanother employee in violation of the Joint Statement on Behavior in theWorkplace. Although the evidentiary record does not indicate if the Employeraccepted this Arbitrator's recommendation in the above-referenced caseregarding Supervisor Zabat, it should have. Unquestionably, Supervisor Zabat'sconduct while dealing with craft employees under her supervision during the pasteight (8) years at the Concord Post Office reflects an attitude and personality ofan individual that should not be supervising craft employees. In short, thisArbitrator would describe Supervisory Zabat as a "bad apple". Her track recordin communicating with craft employees as a supervisor is miserable. If any craftemployee displayed the sameconduct and was subsequently found guilty of those charges, in all likelihoodthey would be unemployed. This Arbitrator is cognizant of the fact that if asupervisor in any other industry acted as Supervisor Zabat has conductedherself during the past eight (8) years, they would be terminated for just cause.Undeniably, in the opinion of this Arbitrator,Supervisor Zabat does not personify the professionalism displayed by her peers

in their daily interaction with employees under their supervision. The Employercannot and should not tolerate this type of conduct by anyone in its employment,be they craft employees, or managerial staff. The risks are to high to condonethis type of activity. Obviously, the parties recognized this fact when they entered into the JointStatement on Violence and Behavior in the Workplace. Apparently SupervisorZabat is one of 700,000 employees of the Employer that is treating the termsand conditions outlined in the Joint Statement on Violence and Behavior in theWorkplace with a wink and a nod. If theEmployer is really committed to its pledge to make the workroom floor a safe,more harmonious, as well as a more productive workplace, then it must assureits craft employees at the Concord Post Office that it will no longer tolerate orcondone the unacceptable behavior displayed by Supervisor Zabat during thepast eight (8) years. To do less, would be atragedy.

This Arbitrator has stated in prior arbitration decisions that he has no contractualauthority over managerial employees, as it pertains to their working conditions,discipline or discharge. That is still this Arbitrator'sopinion. However, the Employer does. Even where threats, intimidation orbullying take place as referenced in the context of the Joint Statement are foundby an arbitrator to have existed, as in this case, a union ordinarily is not entitledto any remedy unless it can demonstrate that theEmployer tolerated or excused the misbehavior by failing to take appropriateaction. This Arbitrator is of opinion that the instant case exemplifies conductattributed to Supervisor Zabat that the Employer has tolerated or excused forway to long. If the Employer is unwilling to step up to the plate and eitherremove, severely discipline or terminate amanagerial employee found guilty of misbehavior as has been attributed toSupervisor Zabat, then it might as well scrap its policies regarding the conductof its supervisors, or the agreement on Violence and Behavior in the Workplace.The penalties associated with a violation(s) of the JointStatement on Violence and Behavior in the Workplace should be equally appliedby the Employer to its craft and managerial staff. If not, many more incidents ofwork related violence, such as the Royal Oak situation will happen. That wouldbe a tragedy for the Employer and its employees as an institution.

Accordingly, based upon the evidence and for the reasons stated above, thisArbitrator concludes management personnel of the Employer at the Concord,California postal facility violated Articles 14 and 19 of the 2001-2006 NationalAgreement, as well as the Joint Statement on Violence and Behavior in theWorkplace, by creating a hostile work environment for a bargaining unitemployee on or about January 6, 2003.

Award

This Arbitrator is strongly recommending to the Employer (Pacific Area Labor

Relations) that at a minimum Supervisor Zabat should be removed fromsupervising any craft employee at the Concord Post office, and transferred orassigned to another facility within the confines of the Oakland District no laterthan thirty (30) calendar days after the receipt of this decision. In addition, thisArbitrator recommends that Supervisor Zabat receive a three (3) monthsuspension without pay. Pacific Area Labor Relations shall be required to notifythe national Union President in writing, with a courtesy copy sent to NationalBusiness Representative Dale Hart, and its own Vice President of LaborRelations, no later than two (2) weeks after receipt of this opinion and award, ofwhat or any, portion of these recommendations was implemented.

C# 24609Arbitrator: R. ArmendarizDate of Decision: 9/7/2003

Issue

After hearing and receiving testimony in this proceeding, this Arbitratordetermined and framed the issue as follows:

Did the Postal Service violate Articles 15 and 19 of the National Agreement byfailing to comply with Arbitrator Bjork's Decision and Award in Case No. G94N-4G-C 96018834 and G94N-4G-C 96018758 by returning Armando Cuevas to asupervisory position? If so, what shall be the remedy?

Discussion and Opinion

This Arbitrator finds that the Postal Service in effect admitted that they hadviolated the terms of Arbitrator Bjork's Decision and Award when they appointedArmando Cuevas as an acting Station Manager at the South Texas MedicalCenter. It is not disputed that, once Arbitrator Bjork told them in conference onJanuary 5, 2001, that the Postal Service could not utilize Mr. Cuevas as anActing Station Manager, he was immediately removed from the position. Thus,this Arbitrator finds that when this action was challenged, and when ArbitratorBjork re-confirmed his award to the parties, the Postal Service immediatelycomplied by removing Cuevas as the acting Station Manager. No evidence waspresented to establish that Cuevas engaged in the same conduct and behaviorhe had been found to have engaged in Arbitrator Bjork's decision, however.Because the Postal Service admittedly failed to comply with Arbitrator Bjork'saward, it must be concluded that the Postal Service violated Article 15 of theNational Agreement. Moreover, it is established that an arbitrator has jurisdictionto interpret the terms of a prior award of another arbitrator. See The CommonLaw of the Workplace, St. Antoine, ed. (Bureau of National Affairs, 1998), p. 359.This Arbitrator finds that he has the authority to enforce Arbitrator Bjork'sdecision and Award. This enforcement is only confined to the specific languageof his previous Award, however. This award is based solely on evidence that thePostal Service failed to comply with a final and binding award of an arbitrator

duly selected by the parties. This Arbitrator neither confirms or makes anyseparate findings on the issues presented to Arbitrator Bjork.

Award

The grievance is sustained in part and denied in part. The remedy of ArbitratorBjork is restated as follows: "As a remedy, Mr. Armando Cuevas will be restrictedfrom performing the duties of any position which includes the core activity ofdealing or working with carrier employees. The purpose of this restriction is toavoid a recurrence of hostility between Mr. Cuevas and employees of the LetterCarrier Craft, San Antonio postal facility."

C# 28130Arbitrator: E. SaltzmanDate of Decision: 3/17/2009

Issue

Did the Supervisor Hugo Aldana violate Article 19 and Section 115.4 of the M-39Handbook and the "Joint Statement on Violence and Behavior in the Workplace",when he demonstrated abusive behavior toward the Grievant on August 30,2008, and if so, what is the appropriate remedy?

Opinion - Testimony of Grievant

Mr. Ackah testified that he went to Supervisor's Aldana's desk on Saturday,August 30th, 2008 to request PS Form 3996 for auxiliary assistance. Mr. Ackahsaid that he did so because he was instructed by management to request thisform when he would not be able to complete his assessment in eight (8) hours.Mr. Ackah testified that if a Carrier does not request the form, then it isconsidered unauthorized overtime.

Mr. Ackah testified that when he requested this form, Supervisor Aldanaresponded to him that "you have to go back and get your gun." Mr. Ackahtestified that he pretended that he did not hear this and just looked at SupervisorAldana who then said it again and added "that is what thieves use when they goout and steal." Mr. Ackah testified that he just continued to look at SupervisorAldana and resisted reacting to the provocation. Thereafter, Supervisor Aldanagave Mr. Ackah the requested form.

Mr. Ackah testified that he did not want to argue with Supervisor Aldana althoughhe did feel that Supervisor Aldana was trying to provoke him. Mr. Ackah testifiedthat he felt that Supervisor Aldana was trying to intimidate him to not request PSForm 3996.

Conclusion

Supervisor Aldana has been warned and advised to stop his abusive languageand actions on many occasions in the past. He has done some correction, butmuch more is needed. He testified that he is willing to change his ways afterbeing informed that he is acting in a disrespectful way. The problem is that therewas no testimony about training or education being done proactively to teachSupervisor Aldana the behavior and words that must be eliminated because theyare disrespectful behaviors. From Supervisor Aldana's testimony, it does notappear that he realizes what disrespectful behavior is before he is told throughthe grievance process or a complaint that he has been abusive or disrespectful.The testimony documents that Supervisor Aldana has continued disrespectfulbehavior even after being so informed, for example towards Carrier Chris Lively.

Supervisor Aldana's personal opinion and expressions thereof on Carriers' being"thieves" for requesting overtime must be eliminated from the workplace. It isoffensive, provocative, and disrespectful. Supervisor Aldana must only enforceand reflect the rules and positions of the Postal Service, not his own personalviews.

This arbitrator understood from Supervisor Aldana that he felt that he was doinghis job the best way that he thought he should. He needs training to be awareof other people's sensitivities so as not to offend them before the fact. Thisarbitrator hopes that he can continue to work as a Supervisor after such trainingalong with understanding that his personal views and attitudes must be left athome. At work, a USPS Supervisor should only reflect the attitude and rules ofthe USPS. As stated in the "Joint Statement on Violence and Behavior in theWorkplace": ""Making the numbers " is not an excuse for the abuse of anyone.

Of great concern is the testimony of witnesses including Grievant, who spokeabout their feelings of being provoked and /or insulted or disrespected orabused. Of even more concern is the testimony of Carriers including Grievantwhich indicates using personal restraint to not react aggressively after feelingprovoked. There have been too many incidents of abusive behavior bySupervisor Aldana and for too long a period of time at Diamond Farms PostOffice to risk continuing this abusive behavior which holds open the potential forviolence.

Therefore, based on the facts and circumstances of this particular case, theUndersigned issues the following award:

Award

1. The Grievance is sustained and the Postal Service will reassign Mr,Aldana to a Supervisor's position at another Post Office or any otherposition at another Post Office as it deems appropriate.

2. Within three months (3) months of this decision, Supervisor Aldana shallreceive sensitivity training - training geared to learning how to proactively

avoid words and actions that can be perceived as disrespectful orintimidating by others as well as training to only reflect the positions of theUSPS and not his own personal positions or views, especially with regardto overtime.