s
4-gREGULAR ARBITRATION
IN THE MATTER OF
ARBITRATION BETWEEN ) OPINION AND AWARD
United States Postal Service ) Case(s) No .S4N-3C-D-33477
Employer ) and
and ) S4N-3C-D-36511
National Association of ) J . Erber, Greenwood, Ms .
Letter Carriers, )
Union ) Irvin Sobel
Arbitrator
APPEARANCES
For the Postal Service :
George Whitten
Labor Relations Representative,
Memphis, Tennessee .
For the Letter Carriers :
Ben Johnson
National Business Agent,
Nashville, Tennessee .
HEARING
The matters referred to above were heard by the above cited
arbitrator on March 11, 1987 at Greenwood, Mississippi . The parties
were accorded .full opportunity to present evidence and cross-examine
witnesses . Since the issue of arbitrability was raised by the
Union as a threshold issue, the first part of the hearing was devoted
entirely to that matter, following which the substantive issues
were argued . At the conclusion of the hearing the parties made
closing arguments, waived the filing of post hearing briefs, and the
arbitrator took both matters under consideration .
THE THRESHOLD ISSUE :
FACTS IN CASE ;
On May 27, 1986 (received May 29th, 1986) the grievant, Joe M .
Erber, FTR Letter Carrier of Greenwood , Mississippi, was issued a
Notice of Proposed Removal by Superintendent of Collections Charlie
D . Chatham . That removal was based upon "continued failure to follow
instructions concerning Postal Safety rules and regulations", and
"failure to meet the requirements of your job assignment ."
After the issuance of the Notice, the Union through its
President , the afore cited grievant , filed a grievance claiming that
"the Letter of Proposed Removal was punative ( sic) and without just
cause ." The first and second Step Appeals were heard respectively on
May 30th ( Supervisor Chatham ) and June 2nd ( Postmaster Barnes), and
upon the second Step denial , received on June 13th , the Union moved
the grievance to the Step 3 level .
On June 27th , 1986 the grievant received (8 :44 A . M .) a letter
from Superintendent Chatham . It stated :
"This is to notify you that the propsed removal dated May 22,
1986 received by you on May 27, 1986 is hereby rescinded ."
2 .
On the same date received and signed for by Erber at the
identical time namely 8 :44 a .m . June 27, the grievant was issued a
second Notice of Proposed Removal . That Notice , issued on June 25th
which is before this arbitrator, is identical with its May 27
precursor in its relevant parts, namely the specification of the
charges and the elements of past . record, but adds to that first
Notice contractually necessary, but omitted paragraphs delineating
the grievant's rights of appeal .
On October 23rd the Service issued the following 3rd Step Appeal
decision :
Investigation into this matter reveals that the proposed removal
was rescinded effective June 25, 1986 signed by Mr . Charles
Chatham, Supervisor, Delivery . Inasmuch as the action was
rescinded it is Management's position that the removal action
and the grievance is now moot .
The Union, citing a favorable decision by Arbitrator Peter
Di Leone (S1C-4E-D-34608) in a case which invoked, what it deemed, a
virtually identical issue and set of circumstances, argued that
because of the June 27th recission the instant grievance be dismissed
on grounds of prior settlement of the matter . It further contended
that once the grievance had left the Greenwood Postal Office (on ar
about June 13) it was out of that entity's jurisdiction and any
disposition of those charges such as that signed by Wayne Ray at Step
3 must be regarded as final . Were this not so the Employer, by
rescinding a weak case before Step 3 could send multiple versions of
the same charge(s) thus, constituting double jeopardy . The integrity
3 .
of the collective bargaining process dictates that each party must
live up to its settlements even if based upon either a mistake or an
initial technical error .
The underlying basis for the precedent cited by the Union was
that at the time of recission of the Notice, neither the grievant who
received the Letter of Recission, nor the Union Steward who co-signed
the agreement with the originating Supervisor were demonstrably aware
of the existence of a second letter . In the case decided by Di
Leone, the second roughly identical letter was issued "a day or so
later ."
In the context of the instant grievance such was not the case .
Grievant Erber, who, in his capacity as Union President, had written
and signed the 2nd Step Appeal, received both the Letter of Recission
and the second Notice of Proposed Removal at the same time
(8 :44 A.M . He and the Union were officially aware that the removal
action was still "alive", and the only reason for recission of the
original Notice was the Employer's desire to prevent it from being
"thrown out" for not initially apprising the grievant, a veteran, of
all of his options .
Since the grievant was well aware when he received the Letter of
Recission from Chatham that a revised, corrected Notice had already
been issued there was no need, as argued by the Union, for Chatham to
have stated in his recission decision, that the first Notice was
being rescinded in favor of a second technically correct one . That
same observation is valid at the 3rd Step level, since the two
grievances, one the revised Notice, the other the original one were
4 .
simultaneously heard (September 29th) and disposed of (October 23rd) .
The fundamental fact is that the grievant and the Union, at the
moment of recission of the 1st notice, knew that the removal action
was still alive . The existence of a well known (cited by the
Elkhouri's in each of their editions) arbitral principle, namely to
resolve any doubts in favor of hearing and resolving the basic
substantive issue on its merits, also clearly leads to the conclusion
that the matter is arbitrable . The following substantive issue thus
remains before this arbitrator .
ISSUE :
Was the removal of Joe Erber for just cause under the National
Agreement? If not, what is the appropriate remedy?
FACTS IN CASE :
On June 25, 1986 (received June 27th), the grievant was issued
the following Notice of Proposed Removal by Charles D . Chatham,
Superintendent Collections and Delivery at the Greenwood Post
Office . The relevant part of that statement follows :
This is to notify you that it is proposed to remove you from the
Postal Service no earlier than 30 days from the date you receive
this notice . The reasons for this proposed action are :
Charge 1 : You are charged with continued failure to follow
instructions concerning postal safety rules and
regulations . On April 25 , 1986, while on
official duty as a City Letter Carrier, you
failed to stop at a stop sign at the corners of
W. Gibbs and Cotton Streets in Greenwood , MS . and
5 .
ran into the side of a privately-owned vehicle,
causing damage to both the postal and non-postal
vehicle . This was your second at fault accident
within a calendar year .
On 2/6/ 86 and 2/7/86, you were issued PS Form
4584 for operating your vehicle in an unsafe
manner and for parking in a no parking zone .
On 1/16/86, you completed refresher driver
training as recommended by your supervisor .
Despite Management's efforts to correct your
driving habits through additional training, you
continue to drive in an unsafe manner, fail to
follow safety rules and regulations, and you are
charged accordingly .
Charge 2 : You are charged with failure to meet the
requirements of your job assignment . As a result
of two at-fault accidents within a one-year
period, your SF-46, Government Driver's License,
was revoked at 5/9/86 . Your job as a City Letter
Carrier requires an SF-46 and as a result of
revocation you have failed to meet this
6 .
requirement, and you are charged accordingly .
The following elements of your past record have been
considered in taking this action :
1 . You were issued a 14-day suspension on February 21,1986,
for failure to follow safety rules and regulations .
This was reduced to a Letter of Warning due to
administrative error .
2 . You were issued a 14 day suspension on August 29, 1984,
for failure to follow instructions . This was reduced to
a 7-day suspension .
3 . You were issued a 14 day suspension on July 26, 1983,
for failure to follow instructions . This was reduced to
a 7 day suspension .
You and/or you representative may review the material
relied on to support the reasons for this notice at the
Greenwood Post Office , 200 E . Washington St ., Greenwood,
MS>, between the hours of 8 :00 AM and 5 :00 PM zMonday
through Friday . If you do not understand the reasons for
this notice, contact Mr . William G . Barnes, Step 2
Designee , for further explanation .
7 .
On July 3, 1986 following Mr . Chatham's First Step Denial of the
grievance, the Union filed its Second Step Appeal . In that
statement, Erber affirmed :
Letter of Proposed removal is punative (sic) and without just
cause . Greivant (sic) was issued another notice of removal on
5/29/86 which was withdrawn on 6/27/86 . Greivant (sic) has been
subjected to cruel punative (sic) actions by the issue of (two)
letters of removal . Said removal of a veteran Postal Employee
with approximately twenty (20) years service with the U .S :P .S .
is not in the best interests of the Service .
The grievant had already filed a lengthy twenty (20) point by
point rebuttal after the first (May 27th) Notice of Removal .
In her Notice of Decision, dated July 29, 1986 Barbara King,
acting for Billy Roberts SCD Manager of EandL/R at the Tupelo, Miss .
Sectional Center, reiterated and then affirmed the validity of the
charges . In addition, she stated that the grievant's possible
reappointment to an assignment with non-driving duties in the clerk
craft had been considered , but "no vacancy exists at this office ."
The letter further states that although "you have been allowed to
work during the notice period, the Postal Service has incurred far
more than a de-minimis cost factor by allowing this work . It would
not be cost effective for the Postal Service to continue in this
fashion ."
8 .
The Service's third Step Denial of the grievance, dated October
23, 1986, stated :
A careful review of the file reveals that the actions by the
supervisor in issuing the Letter of Proposed Removal were
proper . The carrier has a long tenure with the Postal Service .
In addition, he is a union official ; therefore, he should be
well aware of his obligations to his duty assignments and the
postal safety rules and regulations . He has completed refresher
driver training and management has made every effort to correct
his inefficiencies ; however, without any results . In addition,
he has several elements of past record concerning the same
subject matter .
Therefore, based on the above, it is my contention that the
proposed removal is proper and the grievance is denied .
Position of the Parties :
Introduction :
Since those facts and argumentation introduced by the parties
relevant to the arbitrator' s decision will be stated by him in the
body of his Opinion no result other than increased verbiage would be
served by their reiteration under separate attribution . Accordingly,
only a bare bones summary of each party's position will be presented
at this juncture .
The Union' s Position :
In essence the Union denied that the grievant had violated any
Postal Service safety driving regulation during the incidents cited
in the Charges . It argued that he was neither an unsafe driver nor
9 .
was his twenty year record replete with driving irregularities . In
fact, the opposite is true as attested by his Safety Council
Certificate for long term (18 years) safe driving without an
accident, which was initiated by the same Postmaster who was trying
to remove him. In fact, the specific violations alluded to in
Charge 1 are either false or invalid . the grievant was not "At
Fault" in either of the two accidents used as the basis for removing
his SF-46 (Postal Driving License ) . He was never informed of his
first alleged "At Fault", citation of August 6, 1985, and was
improperly adjudged for the second one of March 25, 1986 . Moreover
he was illegaly denied Union representation at that March "At-Fault"
hearing, and the judgement reached was based on false premises which
were reiterated in the charge . Despite unproven allegations
regarding the alleged higher costs inflicted upon the Service as a
result of his inability to drive his route, he not only effectively
discharged his carrier duties on foot but did so on a cost efficient
basis . The grievant was also treated disparately in that, in prior
circumstances when SF-46's were removed, either the carriers were
somehow allowed to continue to drive or were assigned temporarily to
other duties . That June 25, Notice also deliberately cited as a past
element, a non-existant Letter Warning (March 17,,1986) .
In addition to arguing that the Letter of Decision was
punitively delivered only a day before the grievant's discharge, the
Union contended that the decision was rendered without its issuer
having read the grievant's point by point defense . The Charges
alluded to in that decision had been so reworded that the Letter of
10 .
Decision thus, failed to address the original charges . Above all,
the Union argued that the grievant was a long service, highly
diligent, and efficient carrier, whose only offense was that he had
leadership qualities, noticed by the Community in general and his
Union colleagues in particular, but deprecated by the Employer . His
long term effective service as President of the Union, put him in an
adversarial relationship with Postmaster Barnes and upon the latter's
accession to his office the grievant' s career has been beset with
numerous attempts to discipline him in an effort to establish a basis
for his Removal . This instant grievance represents the culmination
of that process .
The Employer's Position :
The Employer's contentions have already been stated more
effectively than in any summary by this arbitrator, in the already
cited Notice of Removal , Letter of Decision and Third Step Appeal
denial, respectively . In essence , the Employer contended that the
grievant is, and has been, an unsafe driver and only its long time
tolerance and willingness to overlook his abberant driving habits,
which endangered not only the Service's interests but also the
Community's safety, had prevented his prior removal from its employ .
Rather than either trying to remove him for his activities or
treating him disparately the Employer made every effort to find him a
job he could perform without a valid Government driving license . In
fact, it kept him on his route at great cost for four months after
his second no-fault accident .
11 .
Arbitrator ' s Discussion :
Notwithstanding , a plethora of testimony regarding the
grievant ' s twenty year tenure in the Service ' s employ, especially in
regard to the grievant ' s driving record, the fundamental questiosn
which this arbitrator must resolve all directly relate, with the
exception of the referred to but uncited August 1985 incident, to the
more recent incidents cited in the Notice of Proposed Removal . The
most fundamental question is ; 1) Did the events of February 6 and 7,
and the accident of March 25 , 1986 provide proof that the grievant
was an unsafe driver who habitually violated Postal Service safety
rules and regulations?
A related question ensues, should the response to the above
cited question be in the affirmative, namely ; Are the safety
breaches and violations sufficiently serious to justify removal under
the aegis of that part of Article 16 .1 which states , " no employee may
be disciplined or discharged except for just cause such as . . . . . . or
failure to observe safety rules and regulations"?
The other fundamental questions relate to the second charge .
These are ; 1) Was the Employer justified in removing the grievant's
SF-46 and in its absence was the grievant unable, as alleged by the
Employer , to meet the . necessary requirements of his job?
Interrelated but less fundamental questions emerge from whether
the grievant was treated disparately as part of an attempt to remove
him because of his effective Union activities , and the Employer's
allegedly improper citations and utilization of the most recent prior
element?
12 .
Opinion and Award :
The Employer in its attempt to lend credence to its charges
regarding the grievant' s specific violations of safety rules on
February 6, 7 and on March 25, 1986 attempted to prove that these
incidents were not atypical of Erber's twenty year driving record
which was one beset with accidents and instances of carelessness .
The Union, of course, introduced countervailing evidence .
Notwithstanding, the invocation of historical evidence, by both
parties, covering the grievant's career with the Postal Service which
gave the arbitrator insights of some significance, the resolution of
the instant grievance depends upon the validity of the Charges, cited
in the Notice .
Even the designation of an accident as an "At -Fault" one,
although that classification has inferential significance, does not
by itself automatically prove that safety rules and regulations have
been violated by the driver . In short, the Employer must prove that
the grievant, as stated in the Employer' s Notice of Decision, either
"failed to observe or disregarded " Postal Service safety rules and
regulations . It (the Employer) must cite which practices the
grievant engaged in which constituted such a failure, and/or the
regulations which were violated in the process . While not citing the
specific regulation(s) which was (were ) violated, the Notice clearly
indicates the nature of the safety violation with which the grievant
has been charged . It states; "On April 25th, 1986 while on official
duty . . . . .you failed to stop at a Stop sign at the corner of W . Gibbs
and Cotton . . . .and ran into a privately owned vehicle . That above
13 .
failure to stop was the only specific violation attributed to the
grievant in the Notice, but at the hearing, the Employer introduced
evidence drawn from its investigation of the accident regarding the
grievant's alleged failure (at the Gibbs-Cotton intersection) to look
in both directions . Had the Employer proven (Mgt . Exh . #1) either
"failure" it would have constituted proof of a violation of its
safety norms despite its failure to state the specific rule or
regulation violated by the grievant in the Notice .
The Employer's version of the accident was based upon its
investigator's (Donald E . Felts) interviews with the driver of the
struck vehicle, (Steve Johnson) a passenger in that vehicle, (Rosie
Judson), and an on-looker Arthur Duncan, who claimed to be a relative
of Johnson . When interviewed by Felts, at the scene, Johnson did not
mention that the grievant ran the stop sign, but four days later when
filing his injury report (ostensibly to Chatham) Johnson stated ; "The
truck apparently (underlining by the arbitrator) didn't stop at the
stop sign ." That latter statement . was in contradiction to his
statement on the spot to Officer Gilbert, but the "apparently" may
have been the result of an attempt to align his version with that of
the other witnesses . The two witnesses , one a passenger , and the
other, who saw the accident from a vantage point approximately 100
feet from the intersection, stated that the grievant had failed to
stop at the sign, but Felts could not locate a named third witness,
who had no ties to the driver Steve Johnson .
Donald Felts , the only trained Employer ' s Accident Investigator
in Greenwood , equivocated in regard to whether Erber had stopped . He
14 .
stated in his report; "It was ny opinion that the Postal Driver, Joe
Erber, was at fault . Whether he stopped or not, or was distracted in
any way, the private vehicle had the right of way ."
The Postal Service's version of the grievant's culpability was
completely contradicted by the Greenwood, Police's official report
of the incident . It is relatively inconcievable that the Police
report was not in the Service' s possession at the time it introduced
its formal chargeson May 27th, but that report was neither consulted
nor referred to in Management's report of the incident, (M-3) and
thus, was not a factor in Felts' conclusion .
When an arbitrator is presented with two reports, one from an
unbiased official police source, and the other an internal , less
detached and potentially self serving source, he must choose the
former . Thus, the signed statement of the investigating Police
officer ( Un . Exh . 41) must be regarded by this arbitrator as the only
conclusive one, since not only must Officer Gilbert be regarded as
the only detached observer but also his is the official investigatory
version of the incident . That statement follows :
This is to certify that I have been a Police Officer for the
City of Greenwood for twelve (12) years . I have personally
known Mr . Erber during this time, as well as prior thereto, and
have observed almost daily, Mr . Erber performing his duties of
delivering mail .
On Friday, April 25, 1986, at approximately 12 :45 P .M ., I was
called to investigate an accident at the corner of Gibbs and
Cotton Streets in the City of Greenwood . I interviewed both
15 .
drivers of the vehicles involved, and the facts are noted on the
official accident report completed by me concerning the
accident .
I learned from the drivers of both vehicles involved that Mr .
Erber came to a full stop, looked'both ways and proceeded into
the intersection . Mr . Johnson stated to me he observed Mr .
Erber stopping and looking both directions, and did not
understand why Mr . Erber did not see his vehicle .
During the years of observing Mr . Erber in the performance of
his duties, I have never had an occasion to see him using unsafe
or unlawful driving practices, but have observed his manner of
driving to be lawful, safe and courteous at all times .
I make this statement of my own free will, not under duress, or
for any personal reasons except to set out the circumstances of
this incident upon Mr . Erber's request that I do so .
Thus, while the grievant's April 25th accident may have been an
At-Fault one, he did not in the course of that procedure violate any
Postal Service regulations either cited or implied, which could be
linked to what could be called a commonly accepted unsafe practice .
This arbitrator will not discuss at this juncture either the
validity of the alleged safety breaches cited in the Notice under the
rubric of the Form 4584 . The circumstances through which that Form
originated also will not be scrutinized at this stage . Both matters
were subjected to invidious interpretation by the Union .
16 .
Assuming arguendo that the citation in the charges of the Form
4584 might be deemed an unintentional error , the Union contended that
such a harmless construction could not be placed upon the citation of
a 14-day suspension as a prior element . Not only did the citation
of the 14-day suspension of February 1986 in the Notice of Removal,
constitute a serious procedural breach but also the Employer
knowingly had falsified the disposition of that grievance in order to
give credence to its contention that the grievant was an unsafe
driver who escaped the consequence of his mis-and mal-feasance as a
driver only by a technicality .
Countless arbitrators have consistently ruled that it is a
significant if not prejudicial breach to cite as a Past Element in a
Notice ~f Dis=igline anything other than the final disposition of a
particuler matter . It is only after the matter has been scrutinized
and decided by the parties through the grievance procedure , that the
final relevance of the action is determined . Although arbitrators
have permitted the introduction of testimony and supporting
documentation during the hearing, relating to the initial penalty
imposed by the Employer , when certain conditions of settlement
reached during the grievance procedure have been breached, they have
been consistent in their rulings against the insertion of such 1/
1/ In a recent removal case this arbitrator permitted the
introduction of evidence bearing on a previous removal action which
had been reduced in the grievance procedure .
17 .
information in Notices of Disci2line_ All the past elements listed
in the Notice were deficient in this regard .
However, the fundamental breach involved a mistatement by the
Employer which the Union contended could only be construed as a
deliberate one intended to create a false impression . The Notice
of Removal states under elements of past record :
"You were issued a 14 day suspension on February 21, 1'986 for
failure to follow safety rules and regulations . This was
reduced to a Letter of Warning due to administrative error ."
The record of that grievance ( S4N-3 -D-27162) completely belies
that statement . In fact, the record clearly indicates there should
be no citation at all .
In fact, Postmaster Barnes' own written statements contradict
the prior element listed by Chatham in the Notice . On April 10th in
an attempt to settle the grievance, Postmaster Barnes after the 2nd
Step meeting at which Chatham was present, wrote Union Steward Pat
Elliot making a proposal of settlement identical to that cited in the
Notice. He stated : (Un . Exh . #2) .
After reviewing the facts presented . . . . .it is apparent that an
administrative error was made . . . . . . . .
Due to the above facts and a review of the case, it is proposed
that if the grievant will withdraw the EEO complaint concerning
this suspension Management will pay lost monies for the 14 days
lost pay and reduce the suspension to a Letter of Warning .
Pat Elliot, after consulting the grievant responded as follows,
18 .
on the face of that same communication : "Respectfully decline your
offer, (ss Pat Elliot) . The Union (and the grievant) felt that
agreeing even to that reduced discipline would be tantamount to
conceding that the grievant had in fact, engaged in those safety
violations cited in the Form 45e4, on which the February 21st action
was based .
Postmaster Barnes, in his Letter of April 17, 1986,
acknolwledged the Union refusal, but nevertheless, reiterated his
intent to compensate the grievant without making any reference to a
Letter of Warning . He stated, in a letter to Joe Erber :
Since the offer submitted at the Step 2 dicision(sic) by
management was refused, management is still aware that an
administrative error did occur in this process, therefore an
adjustment is being made to pay you for monies lost during the
time you were off and the 14 day suspension file is being
removed from the records .
This letter clearly indicates that the Employer's representative
at Greenwood not only acknowledged the Union's refusal to acceed to
the LOW, but had disposed of the issue without any mention of the
Letter of Warning . Yet, a month later Chatham, who was present at
the Second Step Appeal , signed a Notice of Removal which both
mentioned a LOW and the 14 day suspension . Nevertheless, since the
Union regarded this action as not truly dispositive of the grievance,
the matter was brought to Step 3, at which, on September 12, 1986,
the matter was settled by Wayne Ray (Management) and Collier James
(Union) .
19 .
They stated :
It is resolved that the Suspension is removed in total from the
grievant's record based on the fact that the grievant was not
given the required 10 day notice as required by the National
Agreement . He is entitled to full back pay .
Thus, a month before the Notic e was issued by Chatham,, his own
superior had unilaterally removed the 14 day suspension from the
files, in doing so making no reference to a Letter of Warning . That
action by Postmaster Barnes , and the September 12 agreement must be
treated as signifying, for official purposes that no disciplinary
action resulted from the violations cited in the Form 4584 . The
record thus, certainly cannot be construed to imply existence of a
Letter of Warning . That fact and the double jeopardy nature of the
Form's purported utilization first as the basis for a 14-day
suspension and then for Removal is thus dispositive of the Form
4584 .
In its testimony the Employer's witnesses attempted, employing
vivid adjectival hyperbole in the process, to portray the grievant as
a chronically reckless, careless and accident prone driver . In that
context numerous allusions were made regarding serious accidents
during the grievant's twenty year career in the Service . Despite
this portrayal, much of it from hearsay, only one 1979 accident was
specifically attributed to Erber, and no substantive proof that it
was an at fault accident was introduced . In addition statements were
made by Employer witnesses about a rollaway accident , but this
accident was not documented . Management also introduced evidence
20 .
from the grievant's own statement in 1977, (M-10) that the grievant
had five speeding and parking violations, only two of which resulted
in fines, and two accidents prior to that time . The above use of
evidence is totally inconsistent with (Paragraph 4(b), pg . 7) of
Management's Instruction (EL-830-3-11 of 10/28/83) which states :
"When a revocation suspension or reissuance of a SF-46 is under
consideration only the ors-duty record will be considered ."
The Union introduced what it deemed more solid evidence which it
argued completely contradicted Management's litany of hearsay, rumor,
and vague recollections . 'Especially noteworthy, was the grievant's
18 year Safe Driving Award, issued the grievant in 1984, by the
National Safety Council . That safe driving record, encompassing the
grievant's entire 18 year period in the Postal Service, was issued
over Postmaster Barnes' signed recommendation to the Safety Council .
If we augment that statement by Officer Gilbert's already cited
statement based upon his twelve (12) year knowledge of the grievant's
driving . record, a sufficiently different picture than that presented
by Management emerges .
Even if we were to place the same very serious construction upon
the_grievant's accidents as the Employer-including, therein, the
alleged but undocumented one around 1979-when the 20 years duration
of the grievant's service is taken into account neither a larger than
average frequency of accidents nor proven safety violations was
established . The grievant's own statement of 1977 indicating five
traffic citations (one speeding fine) and two very minor accidents
(none at fault) all of which took place while driving a Postal
21 .
Service vehicle, pale into comparative insignificance when one
considers the grievant was thirty two at the time he made that
statement and had been driving for approximately 15 years . In
addition to its already noted failure to sustain its specific Charge
1 safety violations, Management also was unable to prove that the
grievant's 20 year Service driving record was one of such
carelessness, recklessness, irresponsible and dangerous behavior,
that he should not be allowed on the street .
The propriety of the Employer's removal action, thus, must rest
both upon whether it had justification for the removal of the
grievant's'"Government Driving license (SF-46), arid, if such were the
case did the grievant's concomitant inability to drive mean that he
could not carry out his assigned dates without imposing more than "de
minimus" cost upon it .
The "At-Fault" designation of both accidents was challenged by
the Union . The first, namely, that of August 8, 1985 was primarily
challenged on grounds that the attribution of responsibility to Joe
Erber was without foundation and contrary to the known facts of the
incident even as established by the Employer' s own less than
disinterested investigatory report . The Union also contended that
gross procedural violations took place, in that ; 1) The determination
of fault was not made by any duly constituted body , especially an
officially sanctioned Accident Review Board ; 2) The judgement of "At-
Fault" was never communicated to the grievant and that designation
was never discussed with him either informally or officially ; 3) The
grievant thus, was effectively denied his right of appeal, in fact,
the only interaction he had over the matter was on August 7th,
22 .
when he was told by Charles Chatham who had investigated the accident
"not to worry ." and ; 4) The accident was never formally charged
against the grievant until May 29, 1986 when the Notice of Proposed
Removal was issued . In fact, the Notice while specifically citing
the March 25th incident as the 2nd "At-Fault" accident in a year,
never made any direct reference to the first incident or gave its
date, namely August 6th .
The statements of the Employer's representatives, Charles
Chatham and Don Felts who conducted the investigation of the August
6th "accident", are both inconsistent with the At-Fault judgement
rendered by the latter . Chatham's statement follows :
"Heavy rain caused road to flood . Pickup truck driver
recklessly caused carrier to pull over to curb. Moved over to
avoid collision with vehicle . Flooded street . Heavy rain . Curb
at this point 15 inches high Brick and concrete . Street is very
narrow at this point ."
The statement of Donald Felts, the Greenwood Postal Service
"official " accident investigator essentially reiterated Chatham's
statement . He affirmed :
"The street was wet and it was raining rather hard . The Postal
vehicle , a 1/2 ton 1984 RHD AMC , was going North on Dewey St .
another vehicle turned off River "Road onto Dewey Street ( going
South) . This vehicle was being driven recklessley . Dewey St .
is narrow (18' from curb to curb ) . Behind the curb lis a brick
retaining wall approximately 15 inches high . Mr . Erber moved
over as far as he could to avoid the oncoming vehicle .
23 .
There is a parking area at 109 Dewey Street . This area also has
the brick retaining wall . The accident occured where these
walls meet . At this point the curb on the street has dropped
off until it is almost even with the street . The wall was built
in such a way that the brickes protrude out even with the street
side of the curb .
The Postal vehicle was damaged on the right side between the
side door and the rear wheel well . Damage is estimated at
$100 . . There were no injuries and no other damage .
In my opinion , the weather and possibly a reckless driver
contributed to this accident, but the driver was at fault in
that he hit a fixed object ."
When asked in cross examination, why he reached conclusions
which seemed so contradictory to and inconsistant with the great bulk
of his report, Felts replied that during his training in the Postal
Service course, through which he attained his Investigator's status,
he was told that it was an invariant rule when a driver struck a
fixed immovable object-even one which was relatively obscured-that
he/she was at fault . According to his recollection it was a National
Safety Council regulations . Certainly there is no Postal Service
regulation to this effect .
This arbitrator attempted to ascertain, from either his local
Police accident investigators, campus security officers , or even
insurance adjusters , whether such an invariant rule existed . All of
them , some of whom maintained contac t with the National Safety
Council , denied knowledge of such a rule and none said they would
24 .
adhere to it if such existed . According to them at best,
alleged rule is a very rough rule of
that
thumb starting point from which
determination of fault, if any, is based upon the particular
circumstances of the accident .
Upon this arbitrator's reading to them of Felt's report, all of
the three to whom my query's were specifically addressed, said that
this was an accident for which the driver could not be blamed, and in
the circumstances the Employer should have regarded itself as
fortunate that the damages were so slight .
The denial of due process to the grievant through the Employer's
failure to notify the grievant of the "At-Fault" designation for
approximately ten months and then only indirectly and inferentially,
was neither mitigated one iota by the Service's internal regulation
that formal Accident Review Panels are convened to render such
judgement if the damage exceeds $100 .00. The grievant has every
right to receive notice of, and appeal, any decision especially one
adverse to him which could either lead to or be used as a basis for
future discipline . In fact, he was informed "not to worry" about
the matter by the very supervisor who approximately ten months later,
used that accident as a key link in his Removal decision .
This arbitrator will not dispute the substantive propriety of
the Tupelo, Ms. Accident Review Board At-Fault designation for the
March 25, 1986 incident . However, he questions its procedural
adequacy . The grievant was denied his requested Union representation
at the hearing, and the Employer's argument that the hearing body
GJ .
was purely an administrative one is neither tenable nor in accord
with Employer practice, based on prior arbitral decisions in other
jurisdictions . The fact remains that the actions taken by that
"administrative body" through the almost instantaneous removal, after
the hearing, of the grievant's SF-46, were plainly part of the "Road
to Removal " . If the grievant were denied Union representation before
the Accident Review Board panel his Weingarten rights should have
been satisfied by some form of pre-disciplinary hearing , at which his
Union representative was present .
Inasmuch as the "At Fault " designation for the August 6th accident
was found improper, both from a substantive and procedural
standpoint , the Employer ' s revocation of the grievant ' s SF-46 was
without foundation . This fact renders the question of whether the
procedural improprieties , involved in denying the grievant Union
representation at the Tupelo Review Board hearing, were sufficiently
grave to nullify the March 25th "at Fault" designation, moot .
Assuming arguendo that the Employer had reasonable cause for the
revocation of the grievant ' s SF-46 did his inability to drive provide
concomitant justification for the Service's Removal action on grounds
that the grievant was unable to perform his assigned responsi-
bilities? A related question is what , if any , were the respons-
ibilities of the Employer to the grievant as a consequence of that
revocation , and did the Service meet them?
The already cited Management Instructions of October 28, 1983
(Mgt . Exh .8) defines those responsiblities . It states :
26 .
When the SF-46 of a bargaining unit employee is revoked or
suspended every reasonable effort must be made to reassign the
employee to nondriving duties in that craft or other crafts .
Given the time span which must necessarily elapse, after any
disciplinary request eventuates in one subsidiary Postal Service unit
is transmitted to a Sectional Center, is then investigated and a
Notice of Removal issued (May 27th), it is apparent that the Request
for the Notice' s issuance must have eventuated from G3reenwood almost
simultaneously with the receipt of the Revocation of the grievant's
SF-46 (sent Friday, May 9th) . This comparison of dates r educes Ms .
King's statement in the Notice of Decision, that the Employer had
made every effort to find the grievant an assignment (inferentially
in another craft) he could perform befor e initiating its removal
action, to a meaningless pro-forma one, designed to demonstrate the
Employer's attempt to conform to its responsibilities .
The Employer, however, contended that almost immediately after
the suspension of the grievant's SF-46 on April 15th it had met its
responsibilities in good faith by converting the grievant's route to
a walking one, but unfortunately the grievant's performance during
the four month period conclusively established that without his SF-46
he could not effectively carry his assigned route without imposing
more than de-minimus costs upon it . However, as previously noted, the
Employer must have made its decision to terminate early in May .
Thus, the actual "trial period" was relatively miniscule in
comparison to the four month period the Employer claimed to have
accorded Erber .
27 .
The Employer while conceding that the grievant was able to
complete his walking route argued that in so doing he imposed upon
what it regarded as a more than de-minimus additional wage cost of
one (1) hour per day . This Employer estimate was based upon the
twenty five (25) to thirty five (35) minutes per day for requested
Parcel Post delivery which now had to be assigned another carrier,
it
and the additional half hour encompassed in the grievant's walking
from the station to and from his route .
Given certain offsetting time considerations in moving his
vehicle a more reasonable estimate of-the additional time would be
closer to a half hour, mainly the time necessary for another carrier
to deliver the parcel post . Even this estimate overlooks the
possible additional time a replacement and less experienced carrier
would need for casing the route, as well as the probable no longer
required costs both direct and indirect of maintaining a Postal
Service-vehicle .
In short, the Employer fell far short of proving that the
grievant imposed more than de-minimus cost upon it . The additional
costs it was able to prove even overlooking possible offsetting
costs, were of such "de-minimus " magnitude that they failed-to
justify the Employer's charge that the grievant was unable to carry
out his assigned duties without driving .
Because of the inablity by the Employer to validate its charges
in its Notice of Proposed Removal of June 25, the Union
countercharges of disparate treatment and procedural error will not
be accorded in this Opinion the relative attention devoted
28 .
to them at the hearing . However, these issues are significant and
require some further discussion .
The fact that the grievant, a 20 year veteran, was the only
Greenwood employee at least within Postmaster Barnes' administration
to be removed for inability to .perform his job as a result of removal
of his SF-46, while not by itself proof of unequal treatment does
establish some presumption of disparateness . Equally significant in
this regard is that some carriers, as established by the testimony,
have had two or more accidents within a year, some deemed more
serious than the grievant's, without either having their SF-46's
revoked or being brought up for charges . At least two other carriers
had their SF -46's removed, yet were not issued Notices of Removal,
and inferentially were allowed to keep driving during the period
before a valid driving permit was re-issued . Thus, while a
difference in treatment between individuals does not necessarily
prove disparatness, since individual circumstances can vary
significantly, the Employer's explanation failed to develop an
acceptabl e and credible rationale for its differentiation .
The Employer's version of the circumstances surrounding the
issuance of the Form 4584 and the ensuing abortive 14 day suspension
also evoked some conjecture . Mr . Ballard, the Service's District
Safety officer based at Tupelo, was in Greenwood conducting "Safety
Workshops", and while standing with the local Vehicle Safety officer,
Don Felts, and a number of Supervisors, happened to notice the
grievant leaving the station and engaging in certain unsafe driving
practices . He and his cohort(s), thus, followed the grievant and
29 .
observed a number of safety violations including mainly failure to be
in proper lane while approaching intersections, unsafe lane changing,
failure to signal when leaving curb and doubl e parking all of which
were cited in the original Letter of 14 day suspension . The Union
challenged Ballard's "accidentally" happening to be looking out,
noticing and picking out the the grievant j ust as he was leaving the
station and established that many of the practices engaged in by the
grievant, in the heavy trafficed, limited parking space , . one way
streets around the Post Office, were commonly accepted ones winked at
by local Management . No other carrier had been issued a 14-day
suspensioon for such practices, in fact, the Employer was unable to
cite any prior actions of any sort . The inability of the grievant to
be accorded an audience with Ballard to discuss his alleged
shortcomings and the bureaucratic run-around he received when he
wanted to schedule that meeting which, according to local management
would have to be held at Tupelo, and the fact that when the grievant
was in Tupelo the day of his Accident Review Board hearing, Ballard
was "too busy" to see him, all in tandem , point to the grievant being
treated disparately .
In reaching this conclusion of disparate treatment this
arbitrator is neither reaching nor does he find it necessary to reach
any further conclusions regarding either the alleged personal animus
towards the grievant attrubuted to th e Employer ' s representatives, or
local management ' s alleged discrimination against him because of his
effective Union leadership . All that was established at the hearing
was the requisite sufficiency of proof for disparate treatment .
Given that neither of the charges could be sustained, nor was
there a valid reason for removal of the grievant's SF-46, the
grievance will be sustained in toto . In that context the arbitrator
must thus, determine what would render the grievant "whole" and must
take into consideration the Union's request for a 21 percent rate of
interest on any pay to be restored . The Union based its request,
which was an integral part of its 2nd stage Appeal (s) upon the
interest costs imposed upon the grievant because he had to mortgage
his home to replace the income lost as a result of his severance from
the Service .
This arbitrator, although he very rarely has acceeded to an
interest payment clearly has, as evidenced by Arbitrator Ben Aaron's
precedent setting 1983 decision CHIN-5-FD-2560) the authority t do
so should he find it necessary to "make the grievant whole ." In this
context, because he has no doubts that the grievant had to incur .
added interest costs, as a result of the Removal, the arbitrator will
so'order at the rate of 10 percent of the total wages lost . This was
approximately the prevailing rate of interest for mortgages during
the period in which the grievant "took out" the loan . This rate is
substantially below the 21 percent requested and does .nbt compensate
the grievant for the anxiety, mental anguish, abuse to his own
dignity, and sense of worth which are worth noting but which can
neither be estimated nor even compensated .
31 .
Award :
The grievance of Joe Erber is hereby sustained . He will be
restored to full duty as expeditiously as possible after the receipt
of this Award . The grievant will be awarded back pay at his
prevailing hourly rate for eight (8) hours a day, or forty (40) hours
per week, for all time lost between the date of his severance and
full restoration to duty . Included therein, are all automatic
his
increases in hourly pay which might have accrued to him during that
period . The grievant will receive interest on the amount of back
at an annual rate of 10 percent . The grievant's SF-46 will be
pay
restored forthwith, as well as all the seniority which he would have
accrued had he been in continuous service . Back payment of premiums
for all pensions , insurance , and other funds from the day of the
grievant ' s discharge to the date of restoration to full duty will be '
made by the Employer .
All monies earned by the grievant during the period, including
any Unemployment Insurance receipts , will be deducted from the wages
to be restored. Final settlement will not be made until the grievant
files an affidavited account of all monies earned by him during the
period he was severed from the Service . Interest will be paid upon
the amount of the final wage settlement .
April 18, 1987
Tallahassee , Florida This is a certified true copy
of Arbitration Award
Irvin Sobel , Arbitr for
32 .