In the Matter of Arbitration

Between

U .S . Postal Service

-And-

National Association of Letter Carriers

---------- -----------------------------Case No . /VlN-1E-D8922 E. RegoNewport, RI

Before : Arbitrator Allan Weisenfeld

Hearing : U .S . Post Office, Providence, Rhode Island,Nov. 3, 1983

Appearances :

101MEOWS

NATIONAL ASSOC . OF LETTER CARRIERS

'NOV 2 1 1983

For the Postal ServiceA . J . Felix - Postal InspectocAlbert Antone - Post MasterRalph Fargnoli - Manager Budget & Cost Analysis

For the N .A .L .C .Edward Rego - GrievantPatrick J . Keeley - Shop StewardRussell J . Sobral, Esq . - WitnessJohn Pimentel, Jr . - Local Business Agent

The Issue

"Did the U .S . Postal Service have just cause tosuspend Edward Rego and, if not, what shall be theremedy?"

Background

In May, 1982 Edward Rego, the grievant in this

proceeding was a member of the National Guard . As such he served

from May 13 through May 15, 1982 assisting in the fighting of a

fire which decimated a large segment of a community some 25

NEW ENGLAND REGION

miles from Providence .

2

At this period of time Mr . Rego had been employed by

the Postal Service for several months as a part-time flexible

carrier. On May 19, 1982 Mr . Rego asked his supervisor for

permission to speak to Postamster La Parle respecting a personal

problem. Permission was granted . Before seeing Mr . La Parle,

Mr. Rego met first with Albert Antone, then the manager of

customer services and currently the Postmaster . Mr . Rego told

Mr. Antone that he had been falsely accused of stealing statuary

at the site of the fire he had assisted in containing as a

National Guardsman during the preceding week . Both he, Rego,

and Mr . Antone met with Mr . La Parle. Rego repeated what he

had told Mr . Antone about the accusation that he had improperly

converted church property . Mr. La Parle advised him that until

such time as a decision was made respecting the accusation he

should report for work as scheduled .

On June 24, 1982, Mr . A . J . Felix, Jr ., a Postal

Inspector, forwarded an investigation memorandum to Mr . La Parle

relating to the conduct of Edward Rego together with what

purported to be an "offense report" dated 5/13/82 and given him

by the Fall, River, Mass ., Police Department .

This investigative memorandum consisted of three

paragraphs as follows :

"1 . The Inspection Service received a report fromPostmaster Eugene LaParle, Newport, RI, that CarrierEdward J . Rego had been arrested by the Fall River,MA Police Department on or about May 13, 1982 .

3

"2 . Enclosed is the Fall River Police Reportindicating Mr . Rego was arrested on May 13, 1982,and charged with violating the General Laws ofMassachusetts, Chapter 266, Larceny over $100 .00(stealing at a fire) .

"3 . Detective Joseph Mellon, Fall River, MA PoliceDepartment, advised that on June 15, 1982 , Mr . Regoappeared before District Court Magistrate ThomasKitchen, and the case was continued until July 15,1982, at which time a Conference Hearing will be held ."

The Fall River Police Department "Offense Report"

alleging "Stealing at a fire, Ch . 266, S . 24" was based on a

complaint by the Rev . Ernest E . Blais, Pastor, Notre Dame Parish,

Fall River, Mass, and named Edward Rego and three others as

" . . . .arrested or wanted : for the following reasons :

,on Thursday, 'Nay 13 ; 1982, at about 12 :35 p .m., . Det . Lt .. George Burns and I, Det . Sgt. .

Robert Peladeau received information from Det . George Bague that there were items taken from

the interior of Notre Dame Church on Nay 13, 198 2, . between 9 :00 a .m., and 10 :00 -a . m. See

attached report from Det. George Hague .-

,,At- about 7:30 p.m., May 13, 1982, Lt . Burns and I talked with Officer David August, *who. . .. I . : . .j . . • . . . . . . . . . . . . . . . : . . . . . . . _ . . . ,_ 1.11 was the first officer to become aware of an incident at the-Notre Dame Church . His report is .

:attached. ~ . ' 1 : 77, j"At about 3 :30 p .m., this same date, we talked with Inspector Edward Lemerise of the Fall .

River Fire Department in'regards to his knowledge of the incident at the Notre Dame Church .

He, in turn, gave us a written report of his knowledge of the incident which -is attached .

"At about 4:30 p .c ., this same date, Lt . Burns and I went to the scene of-the incident

(Notre Dame Church, 30 Notre Dame St ., Fa11 River, Mass .) and talked with Rev . Ernest E . Blais,

Pastor of the Church, and informed him that we had information that a Firefighter, Dennis

Medeiros, and three members of the National Guard, one being 'a-Captain Joseph Rosa, and '-

two sergeants, took five pw_tal. angels from the interior of the church and the Firefighter . ~; - . .

raturned two of these metal angels to Father Normand Grenier, Assistant Pastor, of the Notre

Dane de Lourdes Church at 30 Notre Dame St ., . Fall River, in the a.m. this date. Rev. Blais

did not have any-of this information prior to our contact with him. ' :, :: .

._ "tie then went out of the rectory and viewed the ruins of the Chu rch and observed various

4 .

1-ocations inside the church still burning at _ this time and water being applied to the

northwest corner of the interior of the church , by an unmanned deluge gun .

"At about 6 : 00 p .m. , we talked with Father Noripand Crenier, of 529 Eastern Ave., Fall Itiv

,,ssistant Pastor of the Notre Dame de Lourdes Church , 30 Notre Dame St ., Fall River. We told

him of our information and he told us that on the morning of May 13 , 1982, he was approached

by an Inspector Lemerise of the Fall River Fire Department who-handed two statues to him of

metal angels , which he stated were found by a firefighter at the scene of the fire .

"Father Gra-ier stated that be took possession of the statues and placed them in the garage

at the rear of the Church. - -

"He took us to the garage and showed us the two items and we found that one angel had a

broken wing and a bracket attached and was all metal . The other item was a metal angel withou.=-

a bracket attached . Both these items were charred and taken by us as part of our investigation

into the alledged theft of these items .

"At this time , Mr. Roland Masse , of 529 Eastern Ave ., Fall River, Sexton` ot the Notre Dame

Church approached us and told us that he had found a broken metal angel in the afternoon of .

this date. We observed that this angel was metal without a bracket and broken wings . That

angelis being kept by Father Crenier at-this time .

"Mr. Masse told us that the angel- was found alongside the sanctuary lamp of which it was

a part of, along with five other similar angels .- "

"At this time he did not observe the other five angels in the area of the sanctuary lamp .

He told us that the lamp hung from-the ceiling of the church about 30 feet from the rear door c-

the Church .

"Be also stated • that this sanctuary lamp in question was purehased'in 1906 at' a value of. . „, . . . .

$1,000 .

._`He, :along with Fathei Grenier ,"said~that"this was the 'only angel that was found in the

area of the sanctuary lam at this time. -

".Lt. Burns and I then made further observation of the area and observed the sanctuary lamp-Pro V.and were unable to'find the three mis sing angels. ;

5 .

It may reasonably be inferred that Postmaster La Parle

was motivated to direct the Postal Inspection Service ' s attention

to Edward Rego as a result of the publication in the Providence

Bulletin of a story published on or about May 13 , 1982 quoting a

Fall River Magistrate saying he would issue Rego and three others

summonses based on the accusation that these men had removed

from the " . . . . . rubble of the church finely crafted , winged bronze

angels that were part of a large lamp that the parishioners

bought for $ 1,000 in 1906 . . . ."

On July 12, 1982 Mr . Antone wrote to Mr . Rego as

follows :

"You are hereby notified that you are suspendedindefinitely pending investigation . The suspensionwill be effective no sooner than 24 hours from thetime you receive this notice . There is reasonablecause to believe that you are guilty of a crime forwhich a sentence of imprisonment can be imposed .

"The reasons for this action are :

You were arrested on May 13, 1982 by the FallRiver, Massachusetts Police Department andwere charged with violating the General Lawsof Massachusetts , Chapter 266 , Larceny over$ 100 .00 ( stealing at a fire) .

On June 16 , 1982 a magistrate of the DistrictCourt found reasonable grounds for holding youfor further legal action .

"Based on these facts, your retention in an activeduty status would not be in the best interest .of thepublic , good morale or efficient service."

Mr. Rego ' s appeal through the several steps of the

grievance procedure was futile and culminated in the instant

proceeding .

6 .

Contentions of the Parties

The Service maintains that , on the basis of the

Investigative Memorandum given by Postal Inspector Felix on

June 24 , 1982 it had reasonable cause to believe that Mr . Rego

was guilty of a crime for which a sentence of imprisonment could

be imposed and, pursuant to Article 16, Section 6, indefinitely

suspend him on July 12, 1982 .

The Union denies that the Service had just cause to

suspend Mr . Rego . It contends that the information relied upon

by the Service was inadequate and, in some respects , false . it

charges the Service with failing to conduct an independent

investigation of the charges levied at Carrier Rego which, as

a consequence , resulted in the improper suspension of the

grievant in violation of Articles 15 and 16 of the National

Agreement .

Pertinent Contract Provisions

Article 16 , Section 6 provides in pertinent parts as follows :

A . The Employer may indefinitely suspend anemployee in those cases where the Employerhas reasonable cause to believe an employeeis guilty of a crime for which a sentence ofimprisonment can be imposed .

B . The just cause of an indefinite suspension isgrievable . The arbitrator shall have theauthority to reinstate and make the employeewhole for the entire period of the indefinitesuspension .

Opinion

In the Investigative Memorandum prepared by Postal

Inspector Felix on June 24, 1982 and forwarded to Postmaster La

Parle , Mr . Felix twice referred to Mr . Rego as having been arrested .

7 .

Had Postmaster La Parle scrupulously scrutinized the

Providence Bulletin story on which he relied he would have noted

that the lead paragraph stated that the four men involved

" . . . .will be called into court to answer criminal charges that

they looted the burned-out Notre Dame Church . . . ." The Fall River

Magistrate was quoted as saying he would issue summonses .

Nowhere in this article is there any reference to

Mr . Rego having been arrested and, in fact, he was never arrested .

The distinction that must here be made between an "arrest"

and being " charged" is not merely an exercise in semantics . There

is a difference in the legal application of these terms in the

Commonwealth of Mass . even if the ultimate result may be the same .

When one is arrested he is seized and held under the

authority of the law . He is detained in legal custody until

released . In Mass . one may be summoned or charged to appear

before a court having jurisdiction to respond to an allegation

alleging the commission of a crime . Even though stealing from a

fire in mass . is a felony and conviction can result in imprison-

ment, Mr . Rego was merely charged to appear in court to respond

to the allegation that he stole church property following the

fire at the Notre Dame Parish in Falls River .

In the instant case Mr . Rego was brought before

Magistrate Kitchen on June 16, 1982 who, in his function as

Clerk of the Court, felt that the accused should be asked to

respond to the charges levied against them at a Conference Hearing

scheduled for July 15, 1982 .

8 .

Mr . Sobral who represented Mr . Rego in the criminal

proceedings in Fall River testified that he had met with Post-

master La Parle and indicated to the Postmaster that his indefinite

suspension of Rego was based upon erroneous and inadequate facts .

Mr . Sobral further advised Mr . La Parle that, in a conference with

the prosecuting attorney, the latter had proposed a "continuance

without a finding" for a period of time after which the case would

be dismissed . According to Mr . Sobral, had the Postmaster been

willing to reinstate Mr . Rego upon that representation the case

would never have gone to trial .

Mr . La Parle, however, referred Mr . Sobral to Mr . Felix .

The latter responded to .Mr . Sobral's proposal that Mr . Rego's

case would have to be dismissed out of hand, not expire at the

end of a period of time .

As I have noted, Rego was offered a disposition of a

continuance before and after trial in the District Court .' This

offer was accepted after Rego appealed District Court Judge

Colori's decision for a trial by a jury of six, a system available

in mass . for speedier disposition of less serious cases .

On Dec . 28, 1982 Justice Robert L . Anderson, sitting

in the District Court Department Jury of Six Session in Fall

River issued, in pertinent part, the following Findings of Fact,

Motion to Continue :

"The District Attorney not only does not oppose, butaffirmatively recommends allowance of defendents motionfor a continuance without a finding .

1This is referred to in Massachusetts as a "Brendano"plea . Commonwealth vs . Daniel Brendano, 359 Mass . 332

9 .

"This recommendation is concurred in by therepresentatives of the Archdiocese of Fall River(they recommend dismissal ) in the Fall RiverFire Department .

"Defendants have no criminal records and have beencontributing members of the community .

"According to the reported actions of the defendants,taken in the light most favorable to the Commonwealth,the defendants were the misguided recipients of whatappear to have been souveniers from an historic fire .

"As a result of the charges , the defendants havealready suffered humiliation and shame , not to mentionsubstantial financial losses, and may be the subject ofadditional administartive or disciplinary actions intheir employment .

"In view of all foregoing, I am satisfied that thecause relied on by the defendants exists and thatthe interests of public justice require the allowanceof their respective motions ."

On Jan . 8, 1983 Mr . Rego was reinstated as a part-time

flexible carrier . On Dec . 28, 1983 the record of Mr . Rego's

break with the law dating from May 13 , 1982 will be expunged

from the record .

The central question in this proceeding is whether

the Postal Service had reasonable cause to believe Rego to be

guilty of a crime for which a sentence of imprisonment could

be imposed . It was the testimony of the former manager of

customer services and now Postmaster Antone that he relied

exclusively on Mr . Felix ' s Investigative Memorandum and the

attached Fall River Police Department " Offense Report ."

At no time did anyone connected with management in

the Postal Service interview Mr . Rego to ascertain his reaction

to the charges to which he had been summoned to respond .

10 .

The administration of justice in this country cannot

and never has rested upon the filing of a complaint by a police

officer alleging a crime has been committed . In the instant case

the Postal Service management had an obligation to ascertain

Rego ' s views regarding the criminal charges . Article 16, Section

6 provides that "the Employer m indefinitely suspend . . . ."

(emphasis added ) . Had the Employer conducted the minimum of

independent investigation it might well have concluded that

Rego ' s conduct on May 13 , 1982 was not so heinous as to warrant

an indefinite suspension .

The Postal Service was given, and rejected, an

opportunity to minimize its liability when Rego ' s attorney,

Mr . Sobral , indilcated to it in July , 1982 that the prosecutor

was willing to offer Rego a "continuance without a finding"

for a few months . In rejecting this proposal , a disposition

indicating that the State didn ' t have enough facts to convict,

but was unwilling to withdraw , almost six months elapsed before

Rego was reinstated .

Postal Service management was found wanting in still

another respect . Under cross-examination Postmaster Antone

unequivocally stated that in every instance , without exception,

an employee arrested for a crime for which he could be imprisoned

would be indefinitely suspended . The Newport Daily News of

April 28, 1980 eleven men were arrested in a gambling raid .

Among those arrested was one , William Sears , a postal employee,

who was charged with maintaining a gambling nuisance , a felony .

Sears and the others were each released in $3,000 personal

11 .

recognizance to appear for a hearing . The then Postmaster,

Eugene La Parle, in recognition of Mr . Sears ' arrest , wrote to

him advisingkkhim " . . . .that dependent upon the findings of the

court of this hearing appropriate disciplinary action will be

taken against you ."

In the Sears case the Postamaster was prepared to

permit the accused to remain at work until his case was disposed

of by a court . in the Rego' s case , the Postmaster is posed the

indefinite suspension on Rego, July 12, 1982 merely because his

case had been contained and set down for a Conference Hearing on

July 15, 1982 . The continuance of

more than the clerk' s opinion that

In other words, the Postmaster did

wait for the finding .of

The foregoing

instance, without fail,

refrain from protecting

the case represented nothing

there was a cause of action .

not, as in the Sear' s case,

the court before imposing the suspension .

is not written to suggest that in

the Postal Service is obliged to

itself by withholding acting upon

every

the

authority of Article 16, Section 6 in instances in which an

employee is alleged to have committed a crime which, upon

conviction, may result in imprisonment . On the contrary . I do

believe, however, that the Postal Service has an obligation to

undertake such independent investigation within its mcain to

satisfy itself respecting the alleged crime . At the very least

it should obtain a notarized statement of the accused's version

of the facts . It would then have more than a police officer's

report on which to make a judgment as to whether or not the

facts suggest the imposition of an indefinite suspension or

12 .

awaiting the disposition of the charges , the alternative

available to it .

In consideration of all of the facts of this case I

am of the opinion that the Postal Service was not sufficiently

patient . It knew on or about May 13 , 1982 that Rego had been

accused of stealing at a fire . Rego came to the management

on may 19 and advised Messrs . Antone and La Parle of his diffi-

culties . He remained at work from May 13 , 1982 to July 12,

1982 which the charges against him were working their way

through the legal system . Nothing had happened by July 12

other than a conference hearing had earlier been scheduled for

July 16 , 1982 . Nevertheless , on July 12th , the Postmaster

concluded that he had reasonable cause to suspend him predicated

on a June 16th determination of the District Court which found

reasonable grounds for holding him for trial .

Article 16 , Section 6 does not oblige Postal Service

management to indefinitely suspend every employee accused of a

crime . The Article gives management an option . It may or may

not suspend an accused employee . Presumably , the decision to

suspend or to refrain from suspending would depend on the

Postal Service investigation of the charges and the conclusions

drawn therefrom .

I concur with the views expressed by Postal Advocate,

Mr . Fargnoli , that the Service is charged with a responsibility

to the public . in the discharge of that responsibility,

especially where publicity was wide and presumably adverse, the

Service cannot disregard the connection between the trust the

public reposes in it and the damage done to that trust by a

13 .

charge that one of its employees is alleged to be a thief .

In the instant case , had the Postal Service management

interviewed Mr . Rego in depth , instead of relying wholly on a

police report , it might have concluded , as did the County

Prosecutor , confirmed by Justice Anderson , that the charges

against Rego " taken in .the light most favorable to the Common-

wealth ," Rego was merely a misguided recipient of what was a

souvenir from the fire . The Service would further have recognized

that Rego had suffered shame and consideration attendant to the

publicity given the incident .

I am of the opinion , as was the County Prosecutor and

Justice Anderson that a Brendano disposition of the charges by

giving Rego a continuance without a finding was proper . Under

the circumstances I believe the Service acted precipitously

in indefinitely suspending Rego . I , therefore , find that the

Service did not have just cause to suspend him and direct that

he be made whole for lost wages .

AWARD

The U . S . Postal Service did nbt have just cause

to suspend Edward Rego . The Postal Service is

directed to make Mr . Rego whole for wages lost

during the seventy work days following July 12, 1982 .

Dated : C I 7, 193 %f~Er ~/'Arbitrator