ARBITRATION AWARD
In the Matter of
UNITED STATESPOSTAL SERVICE I
I WIN-5F-D 25332and I W7N-5F-D 25129
NATIONAL ASSOCIATIONOF LETTER CARRIERS
APPEARANCESiN
FEB - 7 1991
For the Service PAWL C. LiAVLSNATIONAL BUSINESS AGENT
Lerene Wiley Don Pusch Sonny SalazarBob Church Bob Brackins Juan LunaRon Gaudiosi
For the Union
L A Sant Michael Crowley William B CameronKen Bielek T Spear
ARBITRATOR EDWIN R RENDER
By the terms of the contract between the UNITED STATES
POSTAL SERVICE, hereinafter referred to as "the Service", and the
NATIONAL ASSOCIATION OF LETTER CARRIERS, hereinafter
referred to as "the Union", there is provided a grievance procedure
including arbitration . Accordingly the parties selected
Edwin R Render , Seattle Washington as impartial arbitrator. A
hearing was held in Phoenix Arizona on January 4, 1991. Equal
opportunity was given the parties for the preparation and
presentation of evidence, examination, and cross-examination of
witnesses, and oral argument .
W7N-5F-D 25332 W7N-5F-D 25129
THE ISSUE
The issue in this case is whether the grievant was properly
placed in an emergency off duty status . on June 20, 1990, pursuant to
article 16 .7 of the contract and whether the grievant was suspended
for just cause for 30 days on August 13, 1990 .
CONTRACT PROVISIONS
Article 16 , section 1 of the contract provides :
In is the administration of this Article, a basic principleshall be that discipline should be corrective in nature,rather than punitive. No employee may be disciplined ordischarged except for just cause such as, but not limitedto, insubordination, pilferage, intoxication (drugs oralcohol), incompetence, failure to perform work asrequested, violation of the terms of this Agreement, orfailure to observe safety rules and regulations . Any suchdiscipline or discharge shall be subject to thegrievance-arbitration procedure provided for in thisAgreement, which could result in reinstatement andrestitution, including back pay .
Article 16, section 7 of the contract provides :
Any employee may be immediately placed on an off-dutystatus (without pay) by the Employer, but remain on therolls where the allegation involves intoxication (use ofdrugs or alcohol), pilferage, or failure to observe safetyrules and regulations, or in cases where retaining theemployee on duty may result in damage to U .S . PostalService property, loss of mail or funds, or where theemployee may be injurious to self or others . The employeeshall remain on the rolls (non-pay status) until dispositionof the case has been had . If it is proposed to suspendsuch an employee for more than thirty (30) days ordischarge the employee, the emergency action taken underthis Section may be made the subject of a separategrievance .
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THE FACTS
W7N-5F-D 25129
The grievant is a letter carrier . Some time prior to
February 1988 he was assigned a long life vehicle . This dispute
concerns allegations that the grievant knowingly violated vehicular
safety regulations by repeatedly and intentionally putting the gear
selector in his service vehicle into the park position before coming to
a complete stop thereby causing damage to the parking pawl. The
Service also charged the grievant with willfully damaging the parking
brake set screw which locks the brake adjustment into place .
During the period between February 6, 1988 and
December 29, 1989, the Service performed general parking brake
maintenance on the grievant's vehicle 24 times ; 14 of these repairs
involved replacement of the parking brake set screw . After the
grievant complained on December 30, 1989 that his vehicle would not
remain in park after engagement of the parking brake, the Service
discovered that the parking pawl was broken . The pawl and gear
shift lever were replaced and thereafter the manager of vehicle
programs, Bob Brackins, consulted postal headquarters about the
pawl's safety history nationwide . Upon learning that there had been
no similar pawl failures reported elsewhere in the nation,
Mr . Brackins determined that the grievant's driving must be the
cause of the problem . Accordingly, Mr . Brackins directed
Bob Church, vehicle operations analyst, to monitor the grievant's
driving .
W7N-5F-D 25332 W7N-5F-D 25129
On May 1, 1990, Mr . Church surreptitiously followed the
grievant and noted that his vehicle would often rock back and forth
before coming to a complete stop . Mr . Church concluded that the
grievant was placing his gear selector into park before fully coming
to a halt . Mr . Church immediately talked to the grievant and told .
him to stop completely before shifting into park . One week later, the
grievant's immediate supervisor,. Ron Gaudiosi, also voiced these
concerns . On May 30, 1990 the parking pawl and a set screw were
again replaced in the grievant's vehicle . The Service decided at this
time that the grievant would be the only Service employee allowed to
drive the vehicle . On June 15, 1990 Bob Brackins saw the grievant
driving on his route and observed his vehicle come to an abrupt halt
and rocked back and forth . After learning of this incident,
Ron Gaudiosi, placed the grievant in an emergency off duty status on
June 20, 1990 believing that the grievant's continued conduct was a
threat to Postal Service property .
On June 25, 1990 a fact finding procedure was conducted with
supervisor Juan Luna, superintendent Ron Gaudiosi, union steward
Barboza, and the grievant present . Subsequently, on July 11, 1990
the grievant was issued a notice which proposed his removal from
Postal Service based on the allegations that he abused Postal Service
property. Gary L . Penn, the director of city operations, Phoenix
division, reviewed the removal and found that the grievant willfully
abused his Postal Service vehicle during the course of his duties as a
letter carrier . However, in deference to the grievant's exemplary
disciplinary record prior to the conduct at issue, Mr . Penn
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unilaterally modified the proposed removal to a 30 calendar day
suspension . Upon the grievant's return to duty on
September 23, 1990, he was to undergo remedial driver training .
Thereafter, the grievant requested arbitration on both his emergency
off duty placement and the decision of Mr . Penn .
POSITIONS OF THE PARTIES
Position of the Service
First, the Service argues that its placement of the grievant on
emergency off duty status without pay was proper under article 16 .7
of the agreement which allows such action when the Service believes
that retaining an employee on active service may result in damage to
U . S . Postal Service property . To sustain its action under
article 16.7 , the Postal Service notes that it must only present
evidence that established it had a reasonable basis to believe that
retention of the employee on active duty would result in damage to or
destruction of Postal Service property, not that level of evidence
which would be required to sustain discharge a discharge . A
reasonable basis existed in reports to supervisor Gaudiosi that the
grievant had been observed willfully abusing his Postal Service
vehicle and that this abuse resulted in damage which necessitated
mechanical repairs . Since there was no compelling reason to doubt
these reports, the Postal Service argues that reliance on them and
removing the grievant to off duty status was entirely reasonable .
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W7N-5F-D 25332 W7N-5F-D 25129
Next, the Postal Service contends that the 30 day suspension
was for just cause . The Postal Service alleges that the grievant
violated section 661 .52 of the E&LRM and section 723 .111 of the Postal
Operations Manual which positively charge employees with the proper
care of fleet vehicles issued to them . The grievant was aware of
correct driving procedures both through extensive training and face
to face discussions with Messrs Gaudiosi and Church . That the
grievant knowingly violated these instructions are, according to the
Postal Service, conclusively established by several facts .
The Postal Service argues that the extraordinary maintenance
history of the grievant's vehicle circumstantially proves that he drove
abusively . Twenty-four general parking brake repairs over a
28 month period is far and above what the Postal Service considers
normal in light of their experience with the average wear and tear of
vehicles of this type .
The Postal Service notes that the parking pawl failure is
particularly convincing evidence that the grievant willfully abused his
vehicle . The Postal Service contends that its expert testimony proves
that only two events will cause a parking pawl to break . Either the
vehicle must be struck by another vehicle while the gear selector is
in park, or the gear selector is placed in park while the vehicle is
moving . In either instance, the cause of the break is the great
amount of stress on the pawl caused by the vehicle's movement .
Since the grievant does not contend that he was struck by another
vehicle while his vehicle was in park, the Postal Service says that the
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only rational conclusion is that the grievant was shifting the gear
selector into park before coming to a complete halt . Further, the
observations of Messrs Brackins and Church that they saw the
grievant's vehicle rock back and forth before stopping is supportive
evidence of this theory .
Additionally, the Postal Service notes that no other vehicle in
the nation has experienced a similar problem with the parking bi
generally or the parking pawl specifically . If the problem were to _ .
in the mechanical workings of the grievant ' s vehicle , and not with
grievant himself, the Postal Service believes that it would surely 1 -
arisen at other locations .
Finally, a Postal Service argues that that the Union's attac!r
the grievant's removal from active duty status to off duty state :-
procedural grounds is without merit. According to the
Service, the grievant was clearly given notice of the
supporting the Service's reasons for placing him in off duty stc . . .
the letter notifying him of the action . Further, the grieva
provided all hearings required by the national agr .
Accordingly, for the reasons outlined above, the Postal Servic ;
that the grievances be denied .
Position of the Union
The Union first attacks the grievant' s removal from active
to emergency off duty status on procedural grounds . The
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contends that the grievant was not given a specific reason for being
placed off duty. The Union states that NALC vice president
lien Bieler asked supervisor Ron Gaudiosi on June 20, 1990 for
specific reasons underlying the grievant's placement in off duty
status and was told by Mr . Gaudiosi that he did not know of the
specific reasons . The Union contends that this lack of notice denies
the grievant of due process and is violative of article 16 of the
national agreement . Secondly, the Union argues that there was no
just cause for the removal to off duty status since the grievant did
nothing wrong . The Union also challenges the grievant's 30 day
suspension on the latter grounds .
The Union argues that the Postal Service is actually charging
the grievant with sabotage and therefore must prove the grievant's
misconduct beyond a reasonable doubt . Since the Postal Service's
evidence is circumstantial, the Union concludes that the Postal Service
failed to meet this type of burden of proof and the grievance must
therefore be sustained .
The Union further argues that even if the grievant was driving
the vehicle in a careless manner and thereby presented a threat to
the continued maintenance of the Postal truck, the Postal Service still
could have taken other corrective action short of placing the grievant
off duty without pay . According to the Union, other jobs were
available at the grievant's station which he could have formed without
driving a vehicle and the Postal Service should have opted for this
less drastic measure .
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The Union argues that the "covert" observations made by
Messrs Church and Brackins are inconclusive proof that the grievant
shifted his vehicle into park before coming to a complete stop . First,
neither Mr . Church nor Mr . Brackins actually witnessed the gear
lever being placed into park before the vehicle halted . Next, the
Union contends that Mr . Church's statement said " appears to put the
transmission into park" and Mr . Brackins' statement that the rocking
motion of the vehicle was " characteristic of placing the transmission in
park" (emphasis added) are indicative of management's uncertainty of
what actually transpired on the dates these observations were made .
The Union's explanation of Mr . Church's observation is that the dirt
on the road on Dahlia Street caused the brakes on the grievant's
vehicle to lock which caused the rocking motion before it came to a
stop .
The Union denies that Mr . Church counseled the grievant
immediately after the incident on Dahlia Street . Rather, the Union
contends that the grievant was not given an opportunity to give his
side of the story until one week later which is contrary to established
procedure . The Union believes that the grievant's infraction must
not have been as serious as the Postal Service alleges if the Postal
Service was willing to wait a week before taking corrective action .
Mr . Brackins, according to the Union, also failed to counsel properly
the grievant at the scene of the alleged accident on June 16, 1990 .
Overall, the Union feels that the Postal Service failed to keep the
grievant and the Union properly informed about their actions
underlying the removal and improperly delayed removing the grievant
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until July 11, 1990 even though the Postal Service's investigation was
completed on June 29 .
The Union argues that the physical evidence of the grievant's
infraction is not credible . First, the dates cited by management in
its notice of removal are inconsistent with the dates appearing on the
repair records . Next, the Union complains that it did not have the
opportunity to inspect the broken set screws and pawls in order to
verify the Postal Service's allegations .
Finally, the Union states that the grievant was not the only user
of the Postal vehicle in question and that therefore the grievant
cannot be held solely accountable for its malfunction . The Union is
not certain why the vehicle is constantly in the shop for repairs but
denies that the company has met its burden of proof sufficiently to
sustain its charges that the grievant is the responsible party .
Because of the above arguments, the Union asks that both grievances
be sustained, that the 30 day suspension and the removal to
emergency off duty status be rescinded, and that the grievant be
made whole for all lost wages and benefits plus interest at the highest
billing rate .
DISCUSSION
Based on the provisions of the contract, the testimony given at
the hearing, and the arguments of the representatives of the parties,
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the Arbitrator has concluded that the Postal Service erred in placing
the grievant on emergency off duty status on June 20, 1990 and that
the grievance addressed to this Postal Service action is therefore
sustained . The Arbitrator further finds that the Postal Service had
just cause to suspend the grievant for 30 days as a result of his
misuse of a Postal Service vehicle . The grievance protesting that
action must be denied .
Under article 16 section 7 of the contract the Postal Service may
place an employee on emergency off duty status when retention of the
employee on active duty "may result in damage to U .S . Postal Service
property ." This provision has been exercised in part when the
employee is generally careless or circumstances indicate that the
employee is undertaken to willfully and maliciously destroy government
property . When general carelessness or malicious intent is involved,
is it quite reasonable to assume that the offending employee will pose
a risk regardless of the type of job to which he is assigned .
However, these circumstances are not present in this case . As
discussed below, the Postal Service has proved that the grievant
drove his Service vehicle carelessly and contrary to Postal Service
regulations . However, this misconduct is very specific in nature as
evidenced by the fact that the damage approximately caused by the
grievant to the Postal vehicle . No credible evidence was presented
which establishes that the grievant was otherwise careless or reckless .
or that he performed his other duties in a manner which was likely to
damage other Postal Service property . This, combined with the fact
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that the grievant had a very favorable 10 year work history indicates
to the Arbitrator that the Postal Service could have placed the
grievant in a non driving position where his proven proficiency could
have been utilized and his suspected deficiencies neutralized pending
a full and fair investigation of his alleged misconduct .
The Arbitrator believes the Postal Service proved that the
grievant willfully shifted the gear shift lever in his Postal Service
vehicle into park before coming to a complete halt, contrary to
management's direct warnings, and that this conduct caused damage
to the parking pawl on two occasions . The Union failed to meet the
testimony of Mr Church that he observed the vehicle rock back and
forth prior to each stop on May 1, 1990 . Though the Union disputes
that Mr. Church counseled the grievant about this conduct
immediately after the incidents, it concedes that Mr . Gaudiosi
discussed the issue with the grievant one week later . Mr . Brackins'
observations of June 15 corroborate those of Mr . Church' and the
Arbitrator can only conclude that the grievant chose to disregard the
are cautionary instructions given by Mr . Gaudiosi on May 8 .
The nature of the damage to the vehicle is particularly strong
circumstantial evidence that the grievant's conduct was the sole cause
of the broken pawls . The Arbitrator finds it rather incredible that a
reliable part of the long life vehicle such as the parking pawl would
break in such a short period of time unless, as the Postal Service
contends, the grievant was prematurely shifting the gear shift lever
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into park . The absence of any evidence that the grievant's truck
was hit while parked by another vehicle is a strong indication that
the damage occurred because of the grievant's improper driving . The
fact that no other Postal vehicles in the country were experiencing
similar problems dispels the possibility that there was an inherent
defect in the parking pawls . The Arbitrator doubts that this vehicle
was the only "lemon" in the country . Also, there was no evidence
that other Postal Service employees drove the grievant's vehicle
during the key period at issue, and therefore, the blame cannot be
placed on third parties .
Finally, the Union's contention that the proceedings leading up
to the grievant's suspension were procedurally defective is
unsubstantiated by the evidence . In conclusion, the Arbitrator finds
that the Postal Service improperly placed the grievant on emergency
off duty status on June 20, 1990 but properly suspended the grievant
for 30 days for willful abuse of Postal Service property .
AWARD
The grievance addressed to the emergency placement off duty is
sustained and the grievance addressed to the grievant's 30 day
suspension is denied .
31 January 1991
EDWIN R RENDERArbitrator
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