C- 19 IFS a, REGULAR ARBITRATION PANEL *************************

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1 REGULAR ARBITRATION PANEL ************************* C- 19 IFS a, * In The Matter of Arbitration Between * GRIEVANT : * * Thomas B. Spearman * UNITED STATES POSTAL SERVICE * * POST OFFICE : * and * Holmes, PA * * *NATIONAL ASSOCIATION OF LETTER CARRIERS * CASE NO : * * USPS : C94N -4C-D * * * * * * * * * * * * * * * * * * * * * * * * * * GTS BEFORE : Thomas J. DiLauro, Arbitrator APPEARANCES : For the Postal Service : Miriam Francis O'Leary, Labor Relations Specialist For The Union : Don F. Coughlin, Branch 725 President PLACE OF HEARING : Philadelphia, PA DATE OF HEARING : April 26, 1999 AWARD : The grievance is denied in part in that there was just cause to discipline the grievant. It is sustained in part in that the discipline of discharge was too severe and he is to be reinstated without backpay and benefits, but with seniority unimpaired within fifteen days of the date of this award. His time-off will be considered a disciplinary discharge. DATE OF AWARD : MAY Thoma J. DiLauro

2 BACKGROUND : By letter dated May 8, 1998, Thomas B. Spearman, hereinafter referred to as the grievant, was notified that he would be removed from the Postal Service because of misconduct in that he provided false information on his PS Form Application for Employment. The letter stated that, when he completed PS Form 2591 in August, 1994, he responded "No" to the question if he had ever been convicted of a crime or was now under charges for any offense against the law. A review of the grievant's criminal history record revealed that he was arrested on July 17, 1980 for robbery and sentenced to incarceration at the Garden State Rec/Youth Correction Facility. On May 13, 1998, Union Representative Donald Coughlin held a Step I meeting with Postmaster Hershel Moody to discuss the letter of removal. The Union contended that the grievant did not intentionally omit information on his employment application because he believed his record had been expunged. Postmaster Moody denied the Union's contention on the basis that postal policy states that providing false information on PS Form 2591 was a terminating offense. At a Step 2 meeting held on May 27, 1998, the parties agreed to wait until July 31, 1998 to make a decision because, on that date, a hearing was to be held on the grievant's expungement application before the Superior Court of New 2

3 Jersey in Camden County. By letter dated August 5, 1998, Postmaster John Keller denied the grievance noting that a week had passed since the hearing on the application and that he had received no work on the outcome. Although the Postal Service was not notified of the fact, the grievant's application had been denied. A Step 3 hearing was held and, by letter dated October 21, 1998, the Postal Service denied the grievance. Prior to the issuance of that letter, the Union submitted a request for arbitration dated October 20, 1998 which noted that no Step 3 decision had been rendered. This arbitrator was notified of his appointment to hear this case on April 16, The hearing was held as scheduled and the parties were given the opportunity to present testimony, documents and argument in support of their respective positions. The hearing was declared closed upon the completion of the parties' final oral arguments. ISSUE : Did the Postal Service have just cause to discharge the grievant? If not, what is the remedy? CONTRACT PROVISIONS : ARTICLE 12 - PRINCIPLES OF SENIORITY POSTING AND REASSIGNMENTS Section 1. Probationary Period B. The parties recognize that the failure of the 3

4 Employer to discover a falsification by an employee in the employment application prior to the expiration of the probationary period shall not bar the use of such falsification as a reason for discharge. ARTICLE 16 - DISCIPLINE PROCEDURE Section 1. Principles In the administration of the Article, a basic principle shall be that discipline should be corrective in nature, rather than punitive. No employee may be disciplined or discharged except for just cause such as, but not limited to, insubordination, pilferage, intoxication (drugs, alcohol), incompetence, failure to perform work as requested, violation of the terms of this Agreement, or failure to observe safety rules and regulations. Any such discipline or discharge shall be subject to the grievance-arbitration procedure provided for in this Agreement, which could result in reinstatement and restitution, including back pay. ARTICLE 19 - HANDBOOKS AND MANUALS Those parts of all handbooks, manuals and published regulations of the Postal Service, that directly relate to wages, hours or working conditions, as they apply to employees covered by this Agreement, shall contain nothing that conflicts with this Agreement, and shall be continued in effect except that the Employer shall have the right to make changes that are not inconsistent with this Agreement and that are fair, reasonable, and equitable. This includes, but is not limited to, the Postal Service Manual and the F-21, Timekeeper ' s Instructions.

5 POSTAL SERVICE POSITION : The Postal Service contended that it had just cause to discharge the grievant because he violated of the Code of Ethical Conduct when he provided false information on his application for employment. Manager of Postal Operations Jean D 'Amico testified that Postmaster Hershel Moody consulted with her and sought her concurrence regarding the issuance of the grievant 's notice of removal. She noted that the grievant checked " NO" in answer to question 7a., "Have you ever been convicted of a crime or are you now under charges for any offense against the law?", on an employment application he completed in August, Ms. D'Amico testified further that the foregoing information came to management ' s attention in April, 1998 as a result of an investigation conducted by the Postal Inspection. Manager D 'Amico pointed to various provisions of the ELM to support the Postal Service ' s position that it had just cause to remove the grievant from service. She quoted from Section regarding the purpose and applicability of the Code of Ethical Conduct ; Section Management, which prohibits fraud or false statement in a government matter ; Section f, adversely effecting the confidence of the public in the integrity of the Postal Service ; Section , regarding unacceptable conduct including conviction of a crime 5

6 which may be grounds for disciplinary action, and Section 666.2, pertaining to behavior and personal habits. The Postal Service argued that there is a need for truthfulness and trust among its employees because, without those attributes, the confidence of the public in the integrity of Postal Service could be affected adversely. Although the grievant claimed that the Postal Service had virtually ruined his life by its actions, it must be remembered that it was the grievant who falsified his employment application, not the Postal Service. The grievant stated that Postmaster Moody had asked him if there would be any problems with his employment application when he first completed it. His response to the Postmaster was that his problem had gone away. The grievant claimed that he was told his record would be expunged so he checked the "NO" box in reply to the aforecited question 7a. on PS Form The grievant could have easily checked the box "YES" box and written an explanation, thus giving the Postal Service the opportunity to decide whether or not it wanted to hire him. The Manager of Postal Operations testified that honest and trustworthiness are the basis of the Code of Ethical Conduct and, without those attributes, the Postal Service has no choice but to remove employees from the service who show that they cannot exhibit those traits. Postmaster Moody decided that the grievant's action was such a serious violation of the Code of Ethical Conduct that it merited his removal from the Postal Service. The Postal 6

7 Service asked that the Postmaster's decision be upheld and that the grievance be denied. UNION POSITION : The Union claimed that the Postal Service did not have just cause to remove the grievant from service. Instead of conducting a proper investigation and considering all the facts and circumstances, the Postal Service took the most extreme action of removal, discipline, based solely on the fact that the grievant answered "NO" to a question regarding a past conviction record. The grievant testified that he first completed an employment application for work with the Postal Service in 1993 when he sought work as a casual. Postmaster Moody told him at that time that the paperwork he submitted, including the employment application, had cleared and that everything was fine. There was no evidence to indicate that he completed the 1993 employment application any differently than the one he completed for employment as a PTF in The grievant admitted that he did get into trouble as a juvenile, was convicted of a crime and was sent to a juvenile detention facility which had no fences or guards. He claimed that he was informed that the conviction would be expunged from his record after a period of time and he thought that it had been expunged. The grievant noted that he completed an employment application for 7

8 the Pennzoil Company in 1984 and he was cleared to handle money. No one ever said anything to him at that time about his conviction, causing him to think that his record had been expunged. He noted that he completed employment applications for the Postal Service in 1993 and 1994 and nothing was ever said to him that there was any problem with those applications. The grievant pointed to his excellent employment record since his date of hire and how he reported for work in a timely fashion and even when snow and sleet prevented others from reporting to work, he reported on time ready to work. The Union argued that the Postal Service acted in a detrimental fashion toward the grievant and took the extreme position in the disciplinary action it assessed against him. It noted Postmaster Moody ' s Step 1 response to support its position. Postmaster Moody stated "Postal Policy" provides that giving false information on PS Form 2591 was a terminating offense. The Union cited Section of the ELM which states that conviction of a violation of any criminal statute may be grounds for disciplinary action and not that it is a "terminating offense" as stated by Postmaster Moody. The Union contended that the grievant completed PS Form 2591 to the best of his knowledge and belief and in good faith. The testimony and evidence shows that the grievant was under the impression that his conviction had been expunged from his record and that there was no intent on his part to answer any 8

9 question in a false or dishonest manner. His record with the Postal Service over his five years of service has been exemplary. The Postal Service ' s failure to consider these facts and circumstances and to discharge the grievant without a proper investigation was improper and was not for just cause. It asked that the notice of removal be rescinded and expunged from his record ; that he be restored to his former position and, that he be reimbursed for all lost wages and benefits due to him as a result of the Postal Service's action. OPINION : The advocates are to be commended on the well prepared, presented and argued cases in support of their respective positions. As stated by Arbitrator Philip W. Parkinson ( USPS No. C94C-4C- D [ 19981), cases involving falsification generally rise or fall on their own particular set of circumstances. The set of circumstances in the instant case concern a grievant who completed two PS Forms Application for Employment, on which he checked "NO " to the question of ever having been convicted of a crime. Those applications were completed in 1993 and 1994 and, since that time, the record indicates that the grievant has been an exemplary employee. The grievant claimed that he answered the particular question as he did because he thought that the conviction had been expunged from his record. He supported his position by his unrefutted testimony that he had completed an employment application with the Pennzoil Company in 1984 for a position which 9

10 required the handling of cash. No questions were raised about that application even though he completed it in the same manner as he did with the Postal Service. The fact that he was told by Postmaster Moody in 1993 that there was no problem with his paperwork and that nothing was said after he completed a 1994 employment application only confirmed his understanding that his record had been expunged of the conviction. In reviewing the arbitration awards submitted by the Postal Service, there seems to be one common thread which weaves together the three decisions of three different arbitrators, the question of intent. In 1991, Arbitrator Michael Zobrak, in Case No. USPS E7C-2A-D 39726/38902, noted that there was no claim on the record that the grievant did not understand questions regarding his medical problems. He concluded that the grievant was fully aware of his answers on the form and that the answers were not the result of some confusion or misunderstanding on his part. In Arbitrator Parkinson's aforecited decision, he stated it was his considered opinion that questions were answered "NO" with the intent of misleading those who were responsible for reviewing the application. Finally, Arbitrator Irvin Sobel, in Case No. S7N-3S-9397/98 (1989), noted that the finding of misrepresentation in the application, in the absence of either mitigating circumstances or innocent error, justifies the termination of the employee. The common thread in the foregoing decision is that there was an intent by the grievants in those cases to misrepresent and mislead the Postal Service and, thus, deprive it of the information which may have been material to its 10

11 decision to employ the given applicants. The grievant's unrefutted testimony was that he thought the statements he made on the application were true, complete and correct to the best of his knowledge and belief and were made in good faith. His failure to reveal that he was convicted of a crime amounted to the omission of information which was material to the Postal Service's decision to hire him. However, the mitigating circumstances in this case are the unrefutted facts that the grievant had completed at least three different employment applications with two different employers wherein he failed to reveal his conviction and he was told that there were no problems with those applications. These facts seem to have convinced the grievant that his record had been expunged of the conviction. Article B. gives the Employer the right to use falsification as a reason for discharge even if it is discovered after an employee's probationary period. On the other hand, Section of the ELM states that conviction of a violation of any criminal statute may be grounds for disciplinary action by the Postal Service. The grievant obviously should have made note of the fact that, even though he thought his record had been expunged, he had been convicted of a crime. Consequently, he must share in the ramifications of his action which resulted in his being removed from service ; however, he should not be permanently separated from the service because of his error in judgment. In finding that the Postal Service did have just cause to discipline the grievant for his failure to inform the Postal Service of a prior conviction, it must be noted that the particular set of circumstances in this case call for the mitigation of 11

12 the disciplinary action that was taken. Accordingly, the Postal Service is directed to reinstate the grievant to service within fifteen days of the date of this award without any backpay or benefits but with his seniority unimpaired. His time off will be considered a disciplinary suspension. AWARD : The grievance is denied in part in that there was just cause to discipline the grievant. It is sustained in part in that the discipline of discharge was too severe and he is to be reinstated without any backpay or benefits, but with his seniority unimpaired within fifteen days of the date of this award. His time off will be considered a disciplinary discharge. Thomas J. DiLauro Arbitrator MAY 5 ma 12