UNITED STATES POSTAL SERVICE ) David Wynn and ) Oakland, NJ A94N-4A-C NATIONAL ASSOCIATION OF LETTER ) CARRIERS, AFL-CIO )

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1 In the Matter of the National Arbitration Between UNITED STATES POSTAL SERVICE ) David Wynn and ) Oakland, NJ A94N-4A-C NATIONAL ASSOCIATION OF LETTER ) CARRIERS, AFL-CIO ) Before: Dennis R. Nolan, Arbitrator, USC Law School, Columbia, SC Appearances : For the Employer: Jonathan Saperstein, Attorney, USPS, Washington, DC. For the NALC: Keith E. Secular, Cohen, Weiss and Simon, LLP, New York, NY. Place of Hearing: Washington, D.C. Date of Hearing: June 26, 2001 Date of Award: October 25, 2001 Relevant Contract Provision (s) : Article 16, Sections 5 and 6 Contract Year: Type of Grievance: Contract Interpretation Award Summary : A decision of a Dispute Resolution Team to reinstate an employee is a decision of "the Employer" for the purpose of determining the employee's right to back pay under Section C. Dennis R. Nolan, Arbitrator OCT 3 1 2uut I NA.LC. IH N" %T INOTON, D.C.

2 2 OPINION I. Statement of the Case The NALC filed this grievance on November 13, 1998 to seek back pay for an employee who was returned to work, pursuant to a decision of a Dispute Resolution Team, from an indefinite suspension in a crime situation. The parties could not resolve the dispute in the grievance process, so the Union demanded arbitration. The arbitration hearing took place in Washington, DC on June 26, Both parties appeared and had full opportunity to testify, to examine and cross-examine witnesses, and to present all pertinent evidence. Both parties filed lengthy post-hearing briefs, the last of which arrived on September 24, II. Statement of the Facts There is no dispute about what has happened in this case. On November 25, 1996, the Postal Service placed the Grievant on indefinite suspension because of a belief that he was guilty of a crime that might result in imprisonment. The Union filed a grievance over that indefinite suspension. After the Grievant pled guilty to reduced criminal charges, the Postal Service issued him a Notice of Removal, which the Union also grieved. On September 23, 1998, a joint management and labor "Dispute Resolution Team" (DRT) settled the discharge grievance by reducing his termination to a seven-day suspension. On October 3, 1998, Arbitrator Roger E. Maher denied the grievance over the suspension, finding that the Postal Service had reasonable cause to suspend him indefinitely. Neither the arbitrator nor the DRT addressed the question of whether the Grievant should receive any back pay.' But for Section 16.6.C. of the Agreement, that would have ended the matter. Paragraph C., however, provides that if "the Employer" decides to reinstate an employee indefinitely suspended in a crime situation, the employee would be entitled to back pay "for the period that the indefinite suspension exceeded seventy (70) days, if the employee was otherwise available for duty." The Union therefore filed a new grievance on November 13, 1998 to seek that back pay for the Grievant. This grievance, too, went before a DRT, but this time the Team impassed the contractual interpretation question. The only issue left for resolution in this case is whether a reinstatement decision issued by a DRT amounts to a determination by "the Employer" to return the Grievant to work. If it does, the Postal Service owes the Grievant back pay for the approximately twenty months by which the ' Arbitrator Maher decided that the suspension was forjust cause and therefore had no reason to award back pay. That decision did not end the back pay question. Section allows the arbitrator deciding the suspension grievance to make the employee whole, but that would obviously require a finding that the suspension was without just cause. In such a case, the employee could receive full back pay, even for the first 70 days of the indefinite suspension. Section 16.6.C., in contrast, provides back pay for the period beyond 70 days whether or not the original suspension was for just cause.

3 3 indefinite suspension exceeded 70 days. If the DRT' s decision was not a determination by "the Employer," the Grievant is entitled to no back pay. III. The Issue Does the reinstatement of an employee pursuant to a Dispute Resolution Team decision resolving a grievance over that employee's removal under Article 16, Section 5 automatically entitle that employee to back pay under Article 16, Section 6, Paragraph C? IV. Pertinent Authorities USPS-NALC Agreement ARTICLE 15 GRIEVANCE-ARBITRATION PROCEDURE Section 4. Arbitration A. General Provisions 6. All decisions of an arbitrator will be final and binding. All decisions of arbitrators shall be limited to the terms and provisions of this Agreement, and in no event may the terms and provisions of this Agreement be altered, amended, or modified by an arbitrator. Unless otherwise provided in this Article, all costs, fees, and expenses charged by an arbitrator will be shared equally by the parties. ARTICLE 16 DISCIPLINE PROCEDURE Section 5. Suspensions of More than 14 Days or Discharge... 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 as under the circumstances is reasonable and can be justified. The employee is immediately removed from a pay status at the end of the notice period. Section 6. Indefinite Suspension - Crime Situation

4 4 A. The Employer may indefinitely suspend an employee in those cases where the Employer has reasonable cause to believe an employee is guilty of a crime for which a sentence of imprisonment can be imposed. In such cases, the Employer is not required to give the employee the full thirty (30) days advance notice of indefinite suspension, but shall give such lesser number of days of advance written notice as under the circumstances is reasonable and can be justified. The employee is immediately removed from a pay status at the end of the notice period. B. The just cause of an indefinite suspension is grievable. The arbitrator shall have the authority to reinstate and make the employee whole for the entire period of the indefinite suspension. C. If after further investigation or after resolution of the criminal charges against the employee, the Employer determines to return the employee to a pay status, the employee shall be entitled to back pay for the period that the indefinite suspension exceeded seventy (70) days, if the employee was otherwise available for duty, and.without prejudice to any grievance filed under B above. V. The Parties' Positions As befits the narrowness of the issue and its limitation to interpretation of a very specific contractual provision, the parties' positions are quite simple. The Union argues that management's "representative" on a DRT acts on behalf of the Postal Service. When he or she agrees to reinstate a suspended employee, it has the same effect as if some other management representative had made the same determination, and therefore triggers the employee's entitlement to back pay under Section 16.6.C. The Postal Service, in contrast, asserts that the phrase "the Employer" in Paragraph C. refers only to the initial decision made by management ; any later decision, whether a settlement of a grievance or a decision of a DRT, is not the decision of "the Employer," even though the Postal Service obviously has to implement the settlement or DRT decision. VI. Discussion A. Background The question of how to treat an employee accused of a crime is always troubling for employers. The immediate reaction, particularly when the nature of the accusation suggests that the employee might present a danger to other employees or customers, is often to suspend the employee until the criminal charges are resolved. If the employee turns out to be innocent, or at least "not guilty," the employer will usually reinstate him or her. The problem comes in deciding whether the employer or the employee should bear the loss caused by the suspension. On one hand, the end result might suggest that the employee never should have been charged or suspended, and that would make the employee's demand for back pay appealing. On the other hand, the employer may have acted completely reasonably based on the information it had when

5 5 it suspended the employee, and that would make the prospect of back pay seem like a windfall for the employee and a punishment for an employer who did nothing wrong. The matter is sometimes even more complicated, as when the employee pleads guilty to a lesser offense that would not have justified a suspension, or is placed in a diversionary program without a formal determination of guilt, or is reinstated despite a guilty plea or verdict because the employer or an arbitrator determines that the offense did not constitute just cause for termination. Nevertheless, someone - the relatively innocent employee or the relatively innocent employer - has to bear the costs of the suspension. Perhaps because there is no single correct answer to this dilemma, the Postal Service and the NALC struck a compromise in In essence, they agreed that the reinstated employee would bear the cost of the first 70 days of an indefinite suspension, regardless of the outcome of the criminal charges. The Postal Service would bear the cost of any additional days of suspension, again without regard to the outcome of the criminal charges.2 That compromise aimed at resolving some confusion reflected in arbitration awards over the previous contract language. Some arbitrators held that the ultimate decision on the criminal charges also resolved the legitimacy of the suspension (and thus the employee's claim to back pay). If the charges were dropped, for example, they treated the suspension as being without just cause and awarded full back pay. Other arbitrators took the opposite view, judging the suspension independently of the criminal charges. If they believed management acted reasonably in imposing the indefinite suspension, they awarded no back pay even if the grievant were found not guilty. A national level award by Impartial Chairman Sylvester Garrett on September 29, 1978 merely recognized the right of arbitrators to award back pay - or not - as they would in any other just cause case. Arbitration of indefinite suspension grievances thus became an all-or-nothing gamble. Against that background, the new compromise offered something valuable to each party. The Postal Service gained protection from back pay liability for reasonable but relatively shortterm suspensions even if the employee later were later found not guilty, and also gained a reduction in liability for longer suspensions. The employees gained some compensation for longer-term suspensions even when the Employer acted reasonably - and that was especially important because some criminal cases took years to resolve. Both parties gained some certainty and predictability about their own responsibilities. One element of that compromise remained unclear. They assumed that if a suspended employee was to be reinstated, "the Employer" would have to do it. Even an arbitration award in the employee's favor would amount only to an order to the Employer ; the Employer would still have to carry it out by arranging for the return to work. At the time, there were no Dispute Resolution Teams so there was no need to determine whether DRT decisions were, directly or 2 They also agreed in Sections 16.5 and 18.6 that the Employer could suspend an accused employee indefinitely without providing the usual 30-day advance notice but that the employee could grieve the just cause of the suspension. Those provisions are not at issue here.

6 6 indirectly, determinations of "the Employer." As a result, they did not specifically address the matter presented in this grievance. The bargaining history of what is now Section 16.6.C. sheds little light. An early Union proposal would have required full back pay for any suspended employee put back to work "either by settlement with the Union or though exhaustion of the grievance-arbitration procedure." The first management proposal addressing the problem would have provided back pay for the period of an indefinite suspension exceeding 90 days if "the Employer determines to return the employee to a pay status." The parties decided to use the Postal Service's language but to cut the period before the employee would receive back pay to 70 days. The only indication why the Postal Service chose to refer to determinations by "the Employer" rather than use the Union's reference to settlements or arbitration determinations came from testimony by Dennis Weitzel, a retired management official who was responsible for the relevant articles during the 1978 negotiations. Mr. Weitzel stated that the Postal Service believed it had the unilateral right to determine when indefinitely suspended employees were to be reinstated and whether they should receive back pay, and that he drafted the relevant language with that right in mind. The utility of his testimony was limited because he admitted that the parties never discussed what the language about a determination by "the Employer" meant. As he put it (Tr. 105), "There was silence on what they thought it might mean, and we focused on the issue of how much restitution."' It is an elementary rule of contract interpretation that one party's unexpressed intention will not control the meaning of a disputed term. That intention carries even less weight when the party in question drafted the language. A further canon of interpretation requires that ambiguities be resolved against the drafter, because the one who drafts a provision is in the best position to avoid confusion. All that one can conclude from Weitzel's testimony is that he drafted an ambiguous sentence about a reinstated employee's entitlement to back pay when management settles a grievance. Weitzel might have had the intention of limiting back pay to cases where management makes such a decision entirely on its own but he never communicated that intention to the Union's negotiators. Nor did the parties discuss that question even when they created the new dispute resolution process. The Memorandum of Understanding embodying their new procedure, dated July 11, 2000, simply gives the DRTs authority to "resolve the grievance," without clearly stating whether such a resolution required further action by the Postal Service or took effect automatically. Another Memorandum of Understanding the same day, describing the implementation of the new system, just as simply refers to the Teams' responsibility for "issuing decisions." Nevertheless, it is significant that the Teams are composed of two persons, "one management representative and one union representative." The operative term is "representative." The later arbitration awards on this point offered by the Postal Service are about as helpful as the bargaining history. Because they are regional awards rather than national, they carry no

7 7 more weight than their internal logic will bear. Their relevance is further reduced by the fact that they involved the Mail Handlers rather than the Letter Carriers. Even leaving that problem aside, the awards do not support management's interpretation. Section permits an arbitrator to award back pay if the initial suspension was not for just cause. Section 16.6.C. provides back pay following reinstatement regardless whether the initial suspension was for just cause. The award of Arbitrator Wooters (N7M-1P-D 13572, Jersey City, NJ, March 30, 1989) confuses the two. Arbitrator Jonathan Liebowitz's award (B94M-4B-C , June 14, 2000) turns on the timeliness of the Union's claim under Subsection C.', not on its merits. B. Resolution Given the ambiguity of the contract language and the lack of any controlling authority or useful evidence of bargaining history, the meaning of Section 16.6.C. has to be gleaned from its context and policies and from the parties' later creation of the New Dispute Resolution Process. First, as noted above, Section 16.6.C. is a compromise intended by the parties to allocate risks for losses when neither is to blame. They chose to slice that pie without regard to relative fault ; that suggests that the employee's limited entitlement to back pay is firm and fixed, and thus should not be affected by the precise method of reinstatement. The only requirement is that the determination to reinstate the Grievant has to be by "the Employer." The Postal Service argues that the quoted phrase covers.only a completely unilateral, unpressured decision by Service. Neither the language of the provision nor the sketchy evidence about its negotiation nor the few subsequent awards interpreting that language lend any support to that claim. "The Employer" can act in many different ways. Officials at many different levels may have the authority to make reinstatement decisions. Any official making such a decision will necessarily be influenced by a variety of factors including the nature of the criminal charges, the evidence supporting them, the manner of their disposition, arguments and suggestions from the employee and the Union, the likelihood of a grievance if the Employer denies reinstatement, and the prospects for success is such a grievance goes to arbitration. No decision, in other words, is totally unilateral. Union pressure, actual or potential, is a normal part of the process. Moreover, any official's decision is subject to review in the Postal Service hierarchy and to reconsideration at any appropriate level. The Employer's determination can be totally willing or extremely reluctant, but the presence of external concerns and pressures will make the decision no less one by "the Employer." Whether management makes a reinstatement decision before or after a grievance is filed thus changes nothing. A decision to reinstate an employee made before a grievance is filed is a decision by "the Employer," but so is a reinstatement decision made after. So, most importantly, is a reinstatement decision explicitly made to resolve a grievance. A grievance settlement (at least one that does not purport to limit back pay under Paragraph C.) is no less a decision by "the Employer" than any other properly authorized decision.

8 8 Second, when the parties adopted their New Dispute Resolution Process, they decided to act through small, local, and low-level teams. Membership on the teams is not random. To the contrary, each member serves as a " representative " of a party. To put it more clearly, the management-appointed member " represents " the Postal Service while the Union -appointed member " represents " the Union. Decisions of the DRT are thus no different from decisions of any other two representatives who resolve a dispute. That the parties have allowed their DRT "representatives " to act relatively independently changes nothing. The Postal Service joined in stipulating at the hearing that "a DRT decision is the same as the settlement of a grievance, minus some steps " (Tr. 81). If a formal grievance settlement is a determination by the Employer, so is a DRT decision. I therefore conclude that when a management-appointed member of a Dispute Resolution Team agrees with a Union -designated colleague to reinstate a suspended employee, he or she makes a determination for "the Employer " just as the other member makes a determination for the Union. The decision of a DRT thus triggers the back-pay entitlement in Section 16.6.C. If the Employer believes that an employee does not deserve back pay under that Section (for example, if the employee was not exonerated of the criminal charges ), it is free to deny reinstatement, to refuse to settle the resulting grievance, and to argue its case before an arbitrator. The one thing it may not do is decide that the employer deserves reinstatement and then seek to deny that employee the back pay provided by the Agreement. Applying that determination to this case is not difficult. The Grievant was presumptively entitled to back pay for the period of his suspension exceeding 70 days once the DRT, including management ' s authorized representative, decided that he should be reinstated. Because the Postal Service has never contended that he was not otherwise available for duty, he should receive the appropriate amount of back pay. Three other comments are in order. ( 1) This award may increase the cost to the Postal Service of reinstatements after indefinite suspensions and may thereby make the Employer more reluctant to agree to such reinstatements when the employee is not clearly innocent. Presumably the Union was aware of this potential consequence when it filed this grievance and therefore accepts the risk. (2 ) Because the DRT decision in this case did not expressly deny the Grievant back pay (it merely recognized that back pay was a separate, grievable issue), this award does not decide whether a DRT decision (or any other grievance settlement or arbitration award ) may deny or limit an employee 's claim under Section 16.6.C. (3 ) Finally, neither party contended that Section C. changed the normal rules about mitigation of damages. In this case, therefore, the Grievant ' s back pay entitlement should be reduced by any alternative earnings he had or reasonably should have had during the portion of his suspension exceeding 70 days. Because the parties presented no evidence on which to calculate the exact amount due the Grievant, I will retain jurisdiction to resolve any disputes over the interpretation or implementation of this award.

9 9 AWARD The grievance is sustained. Reinstatement of an employee pursuant to a Dispute Resolution Team decision resolving a grievance over that employee's removal entitles that employee to back pay under Article 16, Section 6, Paragraph C., provided that the employee was otherwise available for duty. The Grievant is therefore entitled to the appropriate back pay for the period of his suspension exceeding 70 days, less any alternative earnings he had or reasonably should have had during that period. Should the parties be unable to agree on the interpretation or implementation of this award, they are directed to present their arguments to me as soon as possible for a final decision. ~~ x October Dennis R. Nolan, Arbitrator and Mediator Date