c (7o (~? 7 JlX WILLIAM J. OpC KE REGIONAL ARBITRATION PANEL In the Matter of the Arbitration ) GRIEVANT : Carol Palumbo

Transcription

1 c (7o (~? 7 REGIONAL ARBITRATION PANEL In the Matter of the Arbitration ) GRIEVANT : Carol Palumbo between ) POST OFFICE : Cleveland, Ohio ( D UNITED STATES POSTAL SERVICE ) LISPS CASE NO : C90N-4C ( and ) NALC CASE NO : ( NATIONAL ASSOCIATION OF LETTER ) CARRIERS, AFL-CIO BEFORE : Raymond L. Britton, Arbitrator APPEARANCES : For the U.S. Postal Service: For the Union : Place of Hearing : Date of Hearing : Julianne Bindernagel Dennis Perk U.S. Post Office (Cleveland Ohio) May 6, 1997 AWARD : For the reasons given, the grievance is sustained and the Notice of Removal dated August 9, 1995, rescinded and the Grievant made whole except for back pay. Date ofaward: July 18, 1997 D JlX CLE.DOC WILLIAM J. OpC KE

2 Raymond L. Britton, P.C., Arbitrator Case No. C90N-4C- S Page 2 ISSUE Was the Grievant removed from the Postal Service for just cause? HISTORY OF THE PROCEEDINGS The parties failed to reach agreement on this matter, and it was submitted to arbitration for resolution. Pursuant to the contractual procedures of the parties, the undersigned was appointed as Arbitrator to hear and decide the matter in dispute. At the commencement of the Hearing, it was stipulated by the parties that this matter was properly before the Arbitrator for decision and that all steps of the arbitration procedure had been followed and that the Arbitrator had the authority to render the decision in this matter. After the Hearing, it was agreed that the United States Postal Service (hereinafter referred to as ` Employer') and the National Association of Letter Carriers, AFL-CIO ( hereinafter referred to as "Union ") would present oral closing arguments in support of their respective positions. SUMMARY STATEMENT OF THE CASE Carol Palumbo (hereinafter sometimes referred to as 'Grievant') is a Full Time Regular Letter Carrier at the Independence Branch of the Cleveland, Ohio Post Office. On August 9, Michael Hicar, Manager, Independence Branch, and Linda Vectirelis, Concurring Official, issued to Carol Palumbo a Notice of Removal that states in relevant part as follows (Joint Exhibit No. 2) : You are hereby notified that you will be removed from the Postal Service on September 9, The reasons for this removal action are : CHARGE NO 1 : CONDUCT UNBECOMING A POSTAL EMPLOYEE CHARGE NO. 2: FAILURE TO PERFORM YOUR CARRIER DUTIES INA SAFE MANNER. On Thursday, July 27, 1995, at approximately 2:00 p.m., you informed Manager M. Hicar and Acting Supervisor Z. Herring that you were involved in an incident with your assigned vehicle (# ) while delivering mounted deliveries on Skyview Drive. You stated that while delivering on Skyview Drive you came across a City of Seven Hills service truck which was blocking the roadway. You stated that you pulled behind the truck and waited for the service worker to move the truck over so you may pass. After a few minutes, the service worker did not move the truck, you then stated at that time you did not have enough room between the truck and the mail receptacle of the house across the street to pass the service truck without striking either object with your vehicle. Therefore, you drove your assigned vehicle to the left of the mail receptacle and over the front lawn of the customer at 297 Skyview Drive, leaving tire tracks in the front lawn. You then stated you proceeded to deliver the rest of the street and went to your next point of delivery. You stated while on Chestnut Road you were stopped by a Seven Hills police officer who was called to the scene at 297 Skyview Drive and then escorted back to the scene to apologize and explain to the customer the reason for your actions.

3 Raymond L. Britton, P.C., Arbitrator Case No. C90N-0C Page 3 D The conduct you displayed on July 27, 1995 was a violation of postal regulations. The Standards of Conduct, Section 661.3f states, "Employees must avoid any action, whether or not specifically prohibited by this code, which might result in or create the appearance of f. Affecting adversely the confidence of the public in the integrity of the Postal- Service." Section states, : "Employees are expected to conduct themselves during and outside of working hours in a manner which reflects favorably upon the Postal Service. " M-41 Section reads in part... "Conduct your work in a safe manner so as not to endanger yourself or others. " M-41 Section reads in part... "Practice safety in the office and on the route. " M-41 Section reads in part... "Observe all traffic regulations prescribed by law. Rules applying to the public also apply to operators ofpostal vehicles. " Digest of Ohio Motor Vehicle Laws, Chapter 3, Passing reads in part. "No person shall drive off the pavement or on the shoulder of the road in overtaking or passing on the right. " Your action of driving your assigned vehicle across the lawn of a postal customer has placed the Postal Service in a possible loss of money or monies for any damage that may occur from your actions, and possibly the loss of confidence that the customer may have for the Postal Service in providing service in a respectable manner. By you driving your assigned vehicle off the pavement or roadway and across the lawn of the customer at 297 Skyview Drive, you failed to observe the State of Ohio Motor Vehicle Laws. By you failing to observe the State of Ohio Motor Vehicle Laws, you failed to perform your total job responsibilities. The following elements of your past record have been considered in taking this action : 03/30/95: NOTICE OF REMOVAL - CONDUCT UNBECOMING A POSTAL EM- PLOYEE, THREATENING PHYSICAL HARM TO POSTAL EMPLOYEES, FAILURE TO RE- PORT A VEHICLE ACCIDENT, LEAVING THE SCENE OF A VEHICLE ACCIDENT, FAIL- URE TO FOLLOW INSTRUCTIONS,- AND MAKING FALSE STATEMENTS IN AN OFFICIAL GOVERNMENT MATTER. (Reduced to a Long Term Suspension - LAST CHANCE AGREE- MENT.) 02/14/95: NOTICE OFREMOVAL -FAILURE TO DELIVER EXPRESS MAIL ON TIME, FAILURE TO FOLLOW INSTRUCTIONS, UNAUTHORIZED OVERTIME, UNAUTHORIZED DEVIATION FROM ROUTE, CONDUCT UNBECOMING A POSTAL EMPLOYEE, AND DIS- RESPECTAND DISCOURTESY TO A POSTAL MANAGER. (Reduced with the LAST CHANCE AGREEMENT.) 09/13/94: NOTICE OF REMOVAL - CONDUCT UNBECOMING A POSTAL EM- PLOYEE, DISRESPECTANDDISCOURTESY TOWARDSA POSTAL SUPERVISOR, FAILURE TO PERFORM TOTAL JOB RESPONSIBILITIES, UNAUTHORIZED CURTAILMENT, DELAY OF MAIL, FAILURE TO FOLLOW INSTRUCTIONS, AND ABSENT WITHOUT OFFICIAL LEAVE (A.W.O.L). (Reduced to a Long Term Suspension -LAST CHANCE AGREEMENT).

4 Raymond L Britton, P.C., Arbitrator Case No. C90N-4C Page 4 04/28/94: 07 DAY SUSPENSION - FAILURE TO PERFORM TOTAL JOB RESPONSI- BILITIES, UNAUTHORIZED CURTAILMENT OF MAIL, FAILURE TO COLLECTA COLLEC- TION BOX AND FAILURE TO FOLLOW INSTR UCTIONS. 01/13/94: 07 DAY SUSPENSION- FAILURE TO REPORT ANACCIDENT INA TIMELY MANNER AND FAILURE TO FOLLOW INSTR UCTIONS. You have the right to file a grievance under the Grievance Arbitration procedure as set forth in Article 15, Section 2, of the National Agreement within fourteen (14) days of your receipt of this notice. *** A grievance was filed and a Step 1 meeting held and decision rendered on August 22, 1995, by Bill Gonzales, Acting Manager, denying the grievance. Pursuant to Article 15 of the National Agreement, the grievance was appealed to Step 2 of the grievance procedure on August 28, 1995, alleging a violation of, but not limited to, Articles 15 and 16 and any others that might apply and stating in relevant part as follows (Joint Exhibit No. 2) : FACTS: WHAT HAPPENED-August 9th - Notice of Removal. Charged with conduct unbecoming & Unsafe. 2 PM on 7/27/95 it was alleged that Carol drove an LLV over private property. UNION CONTENTIONS: REASONS FOR GRIEVANCE Extenuating circumstances: Grievant was placed in a no win situation on the date in question. Grievant's path to proceed with her deliveries was blocked & the Grievant had to make a decision whether to drive across the lawn or to attempt to back vehicle up & to suspend delivery to the rest of the residents on that street. Grievant is aware that mgmt in Cleveland District has given numerous safety talks concerning the backing-up of LLV's. Virtually every accident which resulted while a carrier was backingup, no matter what the circumstances, the carriers were issued a severe discipline. In some instances even discharge. The carriers have been repeatedly instructed to avoid backing-up at "all costs. " The Grievant faced with this dilemma & the fact that she could not negotiate her vehicle without going on the lawn, chose the latter. the grass was not wet & the Grievant felt she could do this without causing any property damage. Also the Grievant had no other options available ifshe was to successfully deliver the mail to the rest of the residents on Skyview Dr. It was a judgement call & one in which the Grievant felt she was doing the right thing to provide delivery to all her customers. As of this writing the Union is not aware of any property damage claim being submitted by the customer. Additionally the grievant explained to the customer, why she did drive on her lawn & has apologized for her actions. Grievant was also under the additional pressure of trying to deal with some internal pressure that was a result of a prior incident at her unit. Grievant is an excellent work from a productivity standpoint & this error in judgement, in itself, should not be grounds for discharge. Some of he Grievant's past discipline, although severe, was related to a totally separate & unique circumstance & one in which mgmt & the Union feel had been resolved & had been put behind, & both parties felt that the Grievant was showing marked improvement. Mgmt's actions in this matter are totally punitive & not corrective in nature. CORRECTIVE ACTION REQUESTED : Rescind Notice of Removal dated ; and make Grievant whole & all other reliefpossible. ***

5 Raymond L Britton, P.C., Arbitrator Case No. C90N4CV Page 5 On September 6, 1995, Station Manager, Michael Hicar, discussed the subject Step 2 grievance with Union designee D. Perk, and on that date denied the grievance and stated management's position as follows : Management is not in violation ofarticle 15 & 16. Grievant is at removal status of progressive discipline. Two last chances have been given to Grievant prior to this Notice ofremoval. rt+ On September 15, 1995, the grievance was appealed to Step 3 of the grievance procedure and the reasons stated for the appeal are as follows : **r All the details of this case are spelled out in the Step 2 appeal. We feel that the facts as presented show that a Notice of Removal was not an appropriate punishment in this instance. True enough the Grievant did have some major prior discipline, but all of these disciplines were reflective of some internal station problems; also all of them were in the span of 13 mos; and are not reflective of the Grievants 9 yrs of service. This discipline we feel was not corrective in nature & does not meet the just cause principles nor the spirit of agreement. *r* to Mr. Wil- On December 11, 1995, Ezelle E. Graham, Management Representative, in a memorandum liam J. Cooke, National Business Agent NALC, stated in relevant part as follows : Subject grievance was discussed with Dennis Perk on December 8, 1995 in accordance with Article XI! Section 2 of the National Agreement. The facts of this case do not indicate that management violated the National Agreement. The evidence of record supports the action taken as for just cause. On August 9, 1995, grievant was issued a Notice of Removal for "Conduct Unbecoming A Postal Employee and Failure To Perform Your Carrier Duties In A Safe Manner. " The grievant inform management that she was behind a service truck that was blocking the roadway. After a few minutes the grievant drove her postal vehicle across the front lawn of a customer's residence Grievant made the decision not to wait for the service truck to move and must be held accountable for her actions. This is the third notice of removal issued to the grievant within a six (6) month period The prior two (2) actions were reduced to "Last Chance Agreement" and the grievant was well aware of her status. Management's action was warranted and is forjust cause. This grievance is denied r*. On December 15, 1995, the grievance was appealed to arbitration. Provisions of the National Agreement effective August 19, 1995 to remain in full force and effect to and including 12 midnight November 20, 1998, (hereinafter referred to as `National Agreement') (Joint Exhibit No. 1) considered pertinent to this dispute by the parties are as follows :

6 Raymond L. Britton, P.C., Arbitrator Case No. C90N-06& Page 6 D ARTICLE 15 GRIEVANCE-ARBITRATION PROCEDURE Section 1. Definition A grievance is defined as a dispute, difference, disagreement or complaint between the parties related to wages, hours, and conditions of employment. A grievance shall include, but is not limited to, the complaint of an employee or of the Union which involves the interpretation, application of or compliance with the provisions of this Agreement or any local Memorandum of Understanding not in conflict with this Agreement. Section 2. Grievance Procedure-Steps Step 1 : (a) Any employee who feels aggrieved must discuss the grievance with the employee's immediate supervisor within fourteen (14) days of the date on which the employee or the Union first learned or may reasonably have been expected to have learned of its cause. The employee, if he or she so desires, may be accompanied and represented by the employee's steward or a Union representative. The Union may also initiate a grievance at Step I within 14 days of the date the Union first became aware of (or reasonably should have become aware o)) the facts giving rise to the grievance. In such case the participation of an individual grievant is not required. A Step 1 Union grievance may involve a complaint affecting more than one employee in the office. (b) In any such discussion the supervisor shall have the authority to settle the grievance. The steward or other Union representative likewise shall have the authority to settle or withdraw the grievance in whole or in part. No resolution reached as a result of such discussion shall be a precedent for any purpose..s. ARTICLE 16 DISCIPLINE PROCEDURE Section 1. Principles In the administration of this 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 or 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. eza Section S. Suspensions of More That 14 Days or Discharge In the case of suspensions of more than fourteen (14) days, or of discharge, any employee shall, unless otherwise provided herein, be entitled to an advance written notice of the charges against him/her and shall remain either on the job or on the clock at the option of the Employer for a period of thirty (30) days. Thereafter, the employee shall remain on the rolls (non pay status) until disposition of the case has been had either by settlement with the Union or through exhaustion of the grievance-arbitration procedure. A preference eligible who chooses to appeal a suspension of more than fourteen (14) days or his discharge to the Merit Systems Protection Board (MSPB) rather than through the grievance-arbitration procedure shall

7 Raymond L Britton, P.C., Arbitrator Case No. C9011-4C-S Page 7 remain on the rolls (non pay status) until disposition of the case has been had either by settlement or through exhaustion of his MSPB appeal. When there is reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed, the Employer is not required to give the employee the full thirty (30) days advance written notice in a discharge action, but shall give such lesser number of days advance written notice asunder the circumstances is reasonable and can be justified. The employee is immediately removed from a pay status at the end of the notice period. kk# Provisions of the Employee and Labor Relations Manual dated May 1989 (Joint Exhibit No. 4) considered pertinent to this dispute are as follows : kik Standards of Conduct Employees must avoid any action, whether or not specifically prohibited by this Code, which might result in or create the appearance of.- kkk f Affecting adversely the confidence of the public in the integrity of the Postal Service. #k# Behavior and Personal Habits Employees are expected to conduct themselves during and outside of working hours in a manner which reflects favorably upon the Postal Service..... kk# Responsibilities It is the responsibility of all employees to : k## e. Drive defensively and professionally ; extend courtesy in all situations; and obey all state, local, and postal regulations when driving a vehicle owned, leased or contracted for by the Postal Service. Provisions of the Methods Handbook, Series M-41, City Delivery Carriers Duties and Responsibilities (Joint Exhibit No. 5) considered pertinent to this dispute are as follows : # kk Safety Conduct your work in a safe manner so as not to endanger yourself or others.... k#k

8 Raymond L. Britton, P.C., Arbitrator Case No. C90N-4C-1, Page Practice safety in the office and on the route Observe all tragic regulations prescribed by law. Rules applying to the public also apply to operators ofpostal vehicles. POSITION OF THE PARTIES The Position of the Employer It is the position of the Employer that the Grievant was removed from the Postal Service for just cause. The Employer contends that the Grievant demonstrated that she was not willing to follow basic traffic regulations and in doing so created a negative image for the Postal Service and damaged the property of customers for no logical or reasonably explainable reason. The Employer contends that Postal regulations require that employees drive vehicles safely and follow all traffic regulations prescribed by law. The Position of the Union The Union takes the position that the Grievant was not given the procedural rights to which she is entitled under Article 15, Section 2 of the National Agreement as the Step 1 designee, Mr. Gonzales, was not an employee of the independence, Ohio Post Office at the time of the incident made the basis of this grievance and that the Step 1 was a sham. As to the merits, the Union contends that the actions of the Grievant showed poor judgment but were not malicious. The Union further contends that no costs to the Post Office or damage resulted and that even with the Grievant's prior discipline, the Grievant should not have to pay the ultimate penalty for her actions. OPINION Initially, it is necessary that the Arbitrator address the procedural issue raised by the Union as to whether the actions of the Employer constituted a denial of the Grievant's rights under the National Agreement. Article 15, Grievance and Arbitration Procedure, Section 2, Step 1 :(a) expressly states that "Any employee who feels aggrieved must discuss the grievance with the employee's immediate supervisor...." Step 1 : (b) thereof provides that `In any such discussion the supervisor shall have the authority to settle the grievance.... Under Step 1 :(c), it is provided that `If no resolution is reached as a result of such discussion, the supervisor shall render a decision orally stating the reasons for the decision...." As read by the Arbitrator, the language in Article 15, Section 2, Step L(a) that the aggrieved employee must discuss the grievance with `the employee' s immediate supervisor" is couched in mandatory and not precatory terms in that through the selection of the word "must," the parties intended to make the Step 1 meeting with the immediate supervisor compulsory and obligatory. This requirement, however, in the considered judgment of the Arbitrator, was not met in the instant case for the record reveals that the Step 1 designee was Acting Manager, Bill Gonzales and not the Grievant ' s immediate supervisor. It is further indicated by the record that Acting Manager Gonzales was not employed at the Independence Station nor was he working or present at that location at the time this grievance occurred. While Station Manager Michael Hicar testified that Gonzales was working at the station because he (Hicar) was on vacation or annual leave that week and that even though Gonzales was not at the station at the time of the incident, Gonzales still had a fair opportunity to resolve the grievance at Step 1, the Arbitrator is constrained to disagree. For despite the contractual mandate that a discussion take place between the aggrieved

9 Raymond L. Britton, P.C., Arbitrator Case No. C90N-0C-S Page 9 D and the immediate supervisor at Step 1, there is nothing in the record to indicate that any such discussion with the Grievant's immediate supervisor took place or that the Grievant was afforded the opportunity to tell her story at that stage of the grievance procedure. The truncated nature of the Step 1 meeting is evidenced by the entry made by Mr. Gonzales on the Standard Grievance Form (Joint Exhibit No. 2). In the Step 1 : Decision box on such form, Mr. Gonzales noted that the Step 1 meeting held on August 22, 1995, began at 4 :00 p.m., and that he rendered the Step 1 decision at 4 :01 p.m. or one (1) minute thereafter. As defined in Webster's New World Dictionary of the American Language, the word discuss `Implies a talking about something in a deliberative fashion, with varying opinions offered constructively and, usually, amicably, so as to settle an issue, decide on a course of action, etc." Clearly, a meeting of one (1) minute duration cannot reasonably be found to comeiwithin the meaning of the term `discuss" as defined herein. It follows therefrom that such a perfunctory meeting, as here described, does not qualify as a "discussion" as required by Article 15, Section 2, Step 1 : (a) of the National Agreement. At best, the purported Step 1 meeting only served as token compliance with the requirements of the National Agreement. The upshot of such a meeting was that in not affording the Grievant the opportunity to present her case at Step 1, the basic principle of just cause was violated for under these circumstances, no reasonable decision could have been rendered. Step 1 :(b) of Article 15, Section 2 states that `In any such discussion the supervisor shall have the authority to settle the grievance When all the surrounding factors are considered a serious question arises as to whether, under the circumstances here presented, Acting Manager Gonzales had the authority to settle the grievance. According to the testimony of Manager Hicar, he prepared the discipline and Acting Manager Gonzales was made aware of the discipline. It seems to the Arbitrator, however, that the short duration of the Step 1 meeting, and the lack of any investigation by Acting Manager Gonzales or contact with the Grievant prior to the Step 1 meeting, strongly militates against a finding that he could have settled the grievance in any manner other than as already decided by Station Manager Hicar. The mandate in Article 15, Section 2, Step 1 :(b) that the supervisor as well as the steward or other Union representative have the authority to settle the grievance cannot be considered as surplusage or as being without purpose. For without such requirement there would be no reason for the supervisor or Union steward to engage in any discussion that might lead to and culminate in the resolution of the grievance at the earliest stage of the grievance procedure. As to the merits, the Grievant admits to having engaged in an act of misconduct in unlawfully driving over the lawn of a patron on her route. The Union endeavors to mitigate her action by contending that while she showed poor judgment, her action was not malicious and did not result in the Employer incurring any costs or becoming liable for any damages and therefore, even with the Grievant's prior discipline, she should not have to pay the ultimate penalty for her actions. Although, for the above stated reasons, the Arbitrator is of the view that the imposition of the ultimate penalty of discharge is not proper in the instant case, the Grievant has clearly exhibited a pattern of breaking rules for which she has received previous discipline. Only because the Arbitrator finds that management did not afford the Grievant her procedural rights under Articlel5 of the National Agreement, and the evidence submitted which indicates that she has a renewed attitude towards her work and job performance, is the ultimate discipline of removal not found to be warranted.