BETWEEN ) ANALYSIS AND AWARD NATIONAL ASSOCIATION OF ) LETTER CARRIERS ) Carlton J. Snow Arbitrator AND )

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1 IN THE MATTER OF ARBITRATION ) 0 BETWEEN ) ANALYSIS AND AWARD NATIONAL ASSOCIATION OF ) LETTER CARRIERS ) Carlton J. Snow Arbitrator AND ) UNITED STATES POSTAL SERVICE ) (Case No. W1N- 5B-D 28620) ) (Kostch Grievance) ) I. INTRODUCTION This matter came for hearing pursuant to a collective bargaining agreement between the parties effective from July 21, 1984 to July 20, Hearings in the matter occurred on June 18, 1985 and July 30, 1985 in a conference room of the Post Office located in LaMirada, California. Ms. Joyce Turney, Postmaster, represented the United States Postal Service. Mr. Manuel Peralta, fifth vice-president, represented the National Association of Letter Carriers. The hearing proceeded in an orderly manner. There was a full oppcrtunity for the parties to submit evidence, to examine and cross-examine witnesses, and to argue the matter. The arbitratc:r tape-recorded the prcceeding as an extension of his personal notes. All witnesses testified under oath. The advocates fully and fairly represented their respective parties. The parties stipulated that the matter properly had keen iii///~t. submitted to arbitration and that there were no issues of substantive or procedural arbitrability to be resolved. They (Oct 1 Z 1985

2 authorized the arbitrator to retain jurisdiction in the matter for sixty days follcwing issuance of an order. The arbitrator officially closed the hearing on August 12 on receipt of the final post -hearing brief in the matter. During the hearing on July 30, 1985, the parties requested that the arbitrator view relevant portions of the facility, and the viewing took place with a representative of both parties present at all times..ii. STATEMENT OF T HE I SSUE The parties stipulated that the issue before the arbitrator is as follows :. Was the grievant ' s removal for just cause? If not, what is the appropriate remedy? III. RELEVANT CONTRACTUAL PROVISIONS ARTICLE. 3- MANAGEMENT RIGHTS 3.2 To hire, promote, transfer, assign, and retain employees in positions within the Postal Service and to suspend, demote, discharge, or take other disciplinary action against such employees ; M-39 HANDBOOK The route examiner must inform the carrier that he/she intends to make a fair and reasonable evaluation of the wcrkload on the route and that in order to do so the carrier must perform duties and travel the route in precisely the same manner as he/she does throughout the year. The examiner 2

3 I should impress the carrier with the fact that management is just as anxious and desirous of obtaining an accurate count of mail and inspection of the route as the carrier is, so that a fair and equitable evaluation of the workload on the route may be made Following are some items which could bring about consideration for cancellation :. c. Unrealistic mail volume, either abnormal or subnormal, which could prohibit a fair evaluation of the route No mail volume adjustments will be made to carrier office work ( casing and strapping out functions ) or street work evaluations unless the mail volume for the week of count and inspection is at least 13% higher or lower than the average mail volume for.the period between the most recent regular and the current inspection (excluding the months of June, July, August, and December) For evaluation and adjustment purposes, the base for determining the street time shall be either : a. The average street time for the 7 weeks random timecard analysis and the week following the week of count and inspection ; or b. The average street time used during the week of count and inspection The manager will explain by Comment on Form 1840 or attachments thereto why the base street time allowance for the route was established at the time selected. The manager's selection of the street time allowance cannot be based on the sole criterion that the particular time selected was the lower Fingering of mail between delivery points will be done only in accordance with Article XLI, Section 3.1 of the National Agreement. ARTICLE 41.3 Miscellaneous Provisions I. Carriers shall not finger mail when driving, or when walking up or down steps or curbs, when crossing streets, or at any time it would create a safety hazard to the carriers or the public. Consistent with the efficiency of the operation, mail shall be placed in the delivery sequence in a bundle(s) during strapping out. The Employer shall not be required to conduct a special count or route inspection as a result of this Agreement. 3

4 IV. STATEMENT O F F ACTS In this case, the grievant has challenged the decision of the Employer to discharge her for inadequate performance. The grievant has been an employe of the Postal Service since February 25, Prior tc May, 1983, the grievant worked as a T-6 carrying Routes 1-5 in LaMirada, California when regular carriers took days off. During that period of time, the grievant experienced no significant problems with perfcrming her duties. The Employer recognized that the grievant' s performance as a T-6 was satisfactory. In May of 1983, the grievant received an individual route, Route No. 9. At this juncture she began experiencing performance problems. Her primary problem was an expansion of "street time." That is, she performed her duties of carrying mail to postal patrons slower than the projected time for Route 9. On July 26, 1983, management issued the grievant a letter of warning. It came from Mr. Sanchez, Supervisor of Mails and Delivery in LaMirada. (See, Joint Exhibit No. 2(PP). The letter of warning stated that issuance of the letter had been caused by the grievant's failure to follow instructions as well as by her expansion of authorized street time. The letter indicated that the grievant had expanded her street time during the period of four days by a total of two hours and twenty-nine minutes. The letter of warning indicated that : 4

5 You [the grievant] were given remedial training for Delivery to Door Slots and instructed to carry the route within the allotted street time. ( See, Joint E xhibit 2(PP)). On Septeiber 1, 1983, the grievant received an eight-day suspension for failing to follow instructions as well as for expanding "street time. During the period from July 28, 1983 through August 31, 1983, the grievant had expanded her street time on Route 9 by a total of fifteen hours and forty-five minutes. ( See, Joint Exhibit No. 2(RR)). In October of received the route. 1983, the grievant bid for Route 21 and Although the grievant initially carried Route 21 satisfactorily, the same problems began to surface in her performance. On March 30, 1984, management issued the grievant a notice of proposed removal for unsatisfactory effort and for expansion of street time. The grievant contested the removal and management reinstated her at Step 3 of the grievance procedure so that a six day route count and inspection could be conducted for purposes of adjusting the allotted street time on Route 21 and to give the grievant an opportunity to conform her street performance to the new standard. The Employer reinstated the grievant on June 15, 1984, and an inspection took place from June for a mail count as well as from June for an official route inspection. As a result of the route inspection, management determined that a carrier on Route 21 should be expected to case 9.5 reference volume feet of mail at a standard of approximately eighteen minutes per foot and to complete the street portion of the route in five hours and forty - five minutes on 5

6 light days, six hours on moderate days, and six hours, fifteen minutes on heavy days. ( See, Joint Exhibit No. 2(A)). During the time period from August 20, 1984 through September 6, 1984, the grievant again expanded her street time by approximately twelve hours and thirty minutes over the maximum allotted time for Route 21. On September 7, 1984, management issued the grievant a second notice of removal which is the subject of the present arbitration proceeding. V. POSITION OF THE PARTIES A. The Employer : The Employer contends that the grievant is capable of an adequate performance and, in fact, had performed the job satisfactorily. Management conducted a thorough inspection of the grievant's route, and the Employer contends that its expectations of :the grievant were reasonable. Since other carriers performed the route in less time than expected, the Employer found added support for the reasonableness of its expectations. According to the Employer, conditions did not change on the route in a way that explained or justified the grievant's inadequate performance. Nor did the Employer believe that the grievant had been subjected to harassment, especially on the street where she functioned without the presence of direct supervision. Since the grievant failed to meet reasonable performance standards, the Employer maintains 6

7 that, in view of the progressive discipline imposed on the grievant, the removal was appropriate in this case. B. The Union : The Union has contended that the Employer acted without just cause in this case. It is the position of the Union that conditions on the route explained the grievant's inadequate performance, such as the presence of extra bundles, illness, heat, excess parcels, and "splitting of swings." According to the Union, the grievant gave her best effort-to perform efficiently and expeditiously. It is. the position of the Union that there were logical explanations for the grievant' s expansion of street time that did not provide a basis for her termination. It allegedly was arbitrary and capricious of the Employer to fail to give credence to the explanations put forth by the grievant. It is the belief of the Union that management subjected the grievant to harassment, in part, because she reported safety hazards. Management allegedly attempted to retaliate against the grievant because she.made an issue of her need to "split swings." Management allegedly selected out the grievant for persistent verbal abuse because her best effort fell below the Employer's unrealistic expectations. As a consequence, the Union maintains that the Employer discharged the grievant without just cause. 7

8 VI. ANALYSIS A. The Route Check of June, 1984 : On June 25-30, 1984, Inspectors Phil Ernst and Richard Deyarmond walked the grievant through her route. Mr. Ernstwas an inspector selected from outside the LaMirada Postal Facility. He is the supervisor of delivery and collections at LaHabra, California. On June 25, Mr. Ernst accompanied the grievant. used Form 3999 to detail the time spent by the grievant carrying her route that day. (See, Joint Exhibit No. 2(0)). Additionally, Mr. Ernst i completed a detailed written street analysis of the grievant's time on the route. (See, Joint Exhibit No. 2(P)). The grievant completed the route with an adjusted street time of six hours and five minutes. "Adjusted street time" is calculated by the route examiner after subtracting from the carrier's actual street time those occurrences which normally would not be expected to recur or time which the carrier had wasted and which could have been avoided. Even if street time is not adjusted, the grievant still carried Route 21 in a street time within the range of the established period of five hours, forty-five minutes to six hours, fifteen minutes. On June 26, 1984, Mr. Richard Deyarmond accompanied the grievant ; and she again carried the route within acceptable guidelines. Her time on June 26 was six hours and twentyone minutes of actual time, including lunch ; and she used six hours and five minutes of adjusted street time. (See, 8

9 Joint Exhibit No. 2(U)). On June 27, 1984, Ms. Minor, another carrier in the LaMirada Office, carried Route 21. Mr. Ernst observed her performance. Ms. Minor carried the route in a total of six hours and thirty -seven minutes street time, including lunch, or an adjusted time of six hours and six minutes. (See, Joint Exhibit No. 2(Y)). On June 28, the grievant carried the route again and finished the street portion of the route in a total of six hours and thirty -one minutes for an adjusted street time of six hours and ten minutes. (See, Joint Exhibit No. ME)). During the route check, Mr. Ernst made observations concerning the grievant ' s mail carrying practices. He testified during the arbitration hearing that the grievant occasionally "split swings " unnecessarily. Additionally, he stated his,belief that the grievant had not been in the practice of preparing her mail early enough as she moved from one stop to the next. The consequence was that she used an additional four to seven seconds on each stop as she prepared the mail. Mr. Ernst stated his belief that the grievant possessed the ability to carry her route efficiently, but, in his opinion, lacked the motivation to do so. Even after being told about the problem, Mr. Ernst testified that the grievant did not properly prepare her mail before the next stop approximately ninety percent of the time. 9

10 B. The Grievant's Performance in August of 1984 : In June of 1984, the grievant ' s route had been carefully inspected. In August of 1984, the grievant's work performance was considerably inadequate. On August 20, the grievant's mail volume was 6.75 feet, which Mr. Deyarmond described as light. Accordingly, work performance standards for Route 21 dictated that the grievant should have carried the route in a total of six hours and fifteen minutes, including lunch. The grievant carried the route in seven hours and twenty-five minutes. On August 21, the grievant ' s mail volume was 7 feet, which Mr. Deyarmond again described as light volume. Work performance standards for the grievant ' s route mandated that she should have carried the route in six hours and fifteen minutes, including lunch. Instead, she carried the route in seven hours and six minutes. On August 23, when the grievant carried 6.75 feet, plus half a foot of TCI, Mr. Deyarmond described the day as consisting of moderate volume. Work performance standards required her to complete the route in six hours and thirty minutes, but the grievant carried the route. in seven hours and twenty - three minutes. On August 24, the grievant faced heavy mail volume and carried feet plus half a foot of TCI. Instead of completing the route in six hours and forty -five minutes as required by the standards, the grievant completed the route in seven hours and thirty - six minutes. The grievant's performance deteriorated even further to the point that, on August 30 and September 5, the grievant required eight hours 10

11 and twelve minutes and eight hours and thirty- seven minutes, respectively, to carry Route 21. C. The Grievant ' s Past Performance : There was persuasive evidence that the grievant had performed adequately on the same route in the past. Mr. Foncannon, formerly postmaster at the LaMirada Facility, testified without rebuttal that he had examined forty days of time cards for the grievant ' s route covering a period from December, 1983 through February, ( See, Joint Exhibit No. 2(LL)). From those forty days, Mr. Foncannon calculated an average street time for the grievant of five hours and thirty-one minutes. Additionally, the grievant accumulated a street time that averaged six hours when the Union randomly selected weeks and averaged times in an effort to gain an estimate of the grievant ' s street time. The point is that self has carried Route 21 in a time of six the grievant herhours or less in the past and has done so on a regular basis. established clearly that the grievant had the form the work as dictated by work performance Such evidence ability to perstandards for the route. 11

12 D. Performance of Other Carriers on Route 21 : Other carriers have met the performance standards for Route 21. The average time required by other carriers has been 5.61 hours. Such time is well within standards set for Route 21 as a result of the route check of June 25-30, The point is that the grievant herself has carried the route in six hours or less as have other carriers. Additionally, carriers currently carrying the route complete it in approximately six hours. In other words, evidence submitted by the parties makes it reasonable to conclude that Route 21 clearly is capable of being carried within the time frame set by the route check of. June 25-30, E. Arbitral Guidelines in Cases of Inadequate Performance : There are a number of straightforward steps to be followed in testing the propriety of a termination for inadequate performance. First, it is necessary to determine whether an employer ' s standards of job performance for the terminated employe have been reasonable and whether the standards were similar to those expected from other employes. The evidence set forth in this case clearly has established that the standards are reasonable, have been met by the grievant and other employes, and currently are being met by those who carry the route. Second, it is essential to establish that management clearly has informed an employe regarding the standards of job performance 12

13 that attach to a particular job as well as that the employe's performance has failed to meet those standards. In July of 1983, the grievant received a letter of warning for inadequate job performance. In September of 1983, the grievant received a disciplinary layoff for inadequate job performance. In March, 1984, the Employer began removal proceedings against the grievant for inadequate job performance and later rescinded that effort in order to give the grievant another opportunity to meet performance standards. A fourth criterion in testing the propriety of removing an employe for inadequate performance involves determining whether an employer gave the employe assistance in an effort to improve his or her job performance. There was persuasive evidence that the grievant has received training regarding how to perform her job as well as remedial training in response to specific problems the grievant experienced. The grievant received substantial attention from the Employer in an effort to improve her job performance. This is a topic that will receive additional consideration in regard to a discussion of a charge of harassment. A fifth principle in testing the propriety of a removal action in such cases is to determine whether an employer clearly informed the employe of the consequences of failing to improve the individual ' s job performance. Sixth, after such notice, did the employer provide sufficient time for the employe to raise the individual ' s level of performance to an acceptable standard? In this particular case, the grievant received notice 13

14 that her position could be in jeopardy if she did not increase her level of performance, and the grievant received such notice over a year before her actual termination. Finally, it is imperative for an employer to provide objective evidence that, during the time when the grievant's performance should have improved, the individual's level of productivity failed to reach an acceptable level. There was clear and convincing proof not only that the standard for Route 21 was reasonable but also that the grievant failed to meet that standard. Arbitrators long have recognized that employes' failure to maintain standards of production is a basis for discharge. (See, for example, Mueller Company, 52 LA 162 and Williams Manufacturing Company, 54 LA 737). If it had been clear that the grievant never had been able to meet. production standards set by the Employer or that other employes had not been able to meet the standards, a different result might have been in order. For example, an arbitrator confronted facts in Advance Furniture Manufacturing Company in which the grievant's successor also had been unable to meet the same production level set for the grievant. As a consequence, the arbitrator returned the grievant to the job. (See, Advance Furniture Manufacturing Company, 58 LA 236). There is general agreement among arbitrators that employes have a responsibility to maintain reasonable standards of production. It is a prerogative of the employer to set such reasonable standards. (See, for example, Allied Employers, Inc., 65 LA 270). Arbitrators have concluded that, if an 14

15 J employer uses progressive discipline in order to spur an employe on to meet reasonable production standards but without success, employes legitimately can be immediately discharged, if there is no improvement. (See, for example, Lash Distributors, Inc., 74 LA 274). It is important to stress, in this case, there has been no allegation that the grievant was unable to maintain reasonable production standards because of age or physical disability. Arbitrators have been disinclined to uphold the termination of employes for inadequate performance when such performance has been traced to reduced productivity due to increased age or physical disability. (See, for example, Hawaiian Telephone Company, 44 LA 218). This is a case in which production standards have been clearly articulated by the employer, and.circumstances surrounding the grievant :'':s deficiency have not adequately explained her inability to maintain the standards set by management. (See, for example, Caterpillar Tractor Company, 77 LA 1191 (1981) ; General Electric Company, 74 LA 1278 ( 1980) ; and Reynolds Metal Company, 72 LA 1051). It is a case in which the grievant's length of service and work record have received careful consideration. (See, for example, Swisher & Son, Inc., 77 LA 409 ; Wheeling-Pittsburgh Steel Corp., 74 LA 793 ; and Leavenworth Times, 71 LA 396). Finally, it is a case in which warnings and progressive discipline have been used by the employer prior to the discharge. (See,for example, General Electric. Company, 74 LA 1278 ; Neville Canphell Company,. 15

16 74 LA 814 ; and Cahron, Inc., 72 LA 1310). Arbitrators long have taken the position that discharge is appropriate when an employe is able to perform satisfactorily and fails to do so despite prior warnings and progressive discipline. (See, for example, VRN International, 74 LA 806 ; and General Electric Company, 74 LA 578). By the same token, arbitrators have recognized the impropriety of terminating an employe who has received no warning that his or her work is below acceptable standards. ( See, for example, Armay Construction Company, 72 LA 1009). The point is that the employer has no obligation to retain an employe who fails to produce adequately and continues in that failure after warnings have been given. In Florsheim Shoe Company, the arbitrator stated : Inability to perform the work with reasonable efficiency does impair the essence of the employment relationship. The essence of the employment relationship is that the wages paid by the company and other benefits are in exchange for a reasonably expected amount of work and production. If the company does not receive a reasonable amount of work and production from an. employee, and wages in excess of the understood amount of work to be received by the company are paid. If permitted to go on, this would impair the company's ability to make a profit, to grant wage increases in future negotiations to good productive employes and, indeed, a company's very ability to provide jobs. (See, 74 LA 705, 709 (1980)). At least one federal court has upheld the right of management to terminate an employe because of his continued slowness in delivering the mail. (See, Torres v. Bolger, U.S.D.C. N. Tex., Civil Action No H, June 17, 1985)). 16

17 F. The Defense of Harassment : The grievant has explained her inability to meet production standards by alleging managerial discrimination against her. According to several witnesses, management paid unusual attention to the grievant ' s work performance. Several testified of hearing Mr. Sanchez "yell" or "raise his voice" at the grievant. In particular, Mr. Joseph Fitzpatrick testified he overheard a statement by a supervisor that management wanted "to get" the grievant. Mr. Fitzpatrick,.however, could not recall when he heard this statement or who, if anyone, he had told about the incident. The point is that Mr. Fitzpatrick's selective memory made his testimony too vague regarding this statement to make it credible. Mr. Nick testified that he had been told to stop talking to the grievant when he had been " hanging around " her case. There was no indication that such an instruction was anything other than an anticipated reaction by a supervisor to a perception that an employe was wasting time. Such testimony did not support a charge of harassment. Mr. Richard Siman testified that he thought the grievant had been treated hostilely and aggressively. He, however, was unable to cite any specific instances of harassment. The eminent Wigmore on evidence has made clear that witnesses who.wish to have such conclusions accepted as accurate should be able to adduce instances in verification. ( See, for example, 7 Wigmore, Evidence ( Third Edition 1940 ) 1954). The strongest testimony indicating any form of harassment 17

18 of the grievant came from Mr. Bigoni who stated that the grievant's mail had been compressed when measured by management in an effort to reflect a lower reference volume. This testimony failed to be sufficient to prove harassment. It is important to note that the grievant's work in the office casing mail was faster than the standard required. On the other hand, the grievant's "in-office" performance would appear to be the portion of her work which ought to have suffered the most from harassment because it would have been in the office that she would have experienced the most harassment. The fact that the grievant performed above average in the office discredited the theory that harassment caused her to perform poorly on the street because, while on the street, she would have been removed from those individuals who allegedly harassed her. Additionally, it must be remembered that the grievant carried her route in approximately six hours and fifteen minutes during her route check in June of 1984 when pressure would have been even greater for her. 18

19 AWARD Having carefully considered all evidence submitted by the parties concerning this matter, it is reasonable to conclude that the Employer had just cause for removing the grievant from employment with the U. S. Postal Service on September 7, The grievance is denied. It is so ordered and awarded. Canton J. Snow/l Professor of Law'* Date : M f/ 19