U.S. POSTAL SERVICE - NATIONAL ASSOCIATION OF LETTER CARRIERS ) ) ) ) ) OPINION AND AWARD

Transcription

1 j BEFORE SAMUEL KRIMSLY, PANEL ARBITRATOR J U.S. POSTAL SERVICE - NATIONAL ASSOCIATION OF LETTER CARRIERS IN THE MATTER OF ARBITRATION BETWEEN UNITED STATES POSTAL SERVICE A N NATIONAL ASSOCIATION OF LETTER CARRIERS t* %mht. MO On ua%ise. ah1c3 *6 A Pc511'1~1'~~Ett Cft%US MsFSbOSPRb%%SM MD W114ICL is I ia6*ltt1 I* tbl8s Ptftit D OPINION AND AWARD NO. NC-E 8274b$ 44 and 1i59l-D72 GRIEVANT : Patrick-BAS. Walker Shrewsbury, PA GRIEVANCE : Discharge following Emergency Suspension QEl11~tAtEDnu vats avitsk Ants t'n- Sit GAS APPEARANCES : For the Postal Service : Anthony W. Ducomb, Asst Regional Labor Counsel E. Lynn Ervin, SCF Director, Employee & Labor Relations For the Union : John W. O'Shea, National Business Agent Allen Stuart, Local Business Agent

2 PRELIMINARY STATEMENT The grievance of the discharge of employee Patrick A. Walker, flexible clerk carrier at the Shrewsbury, Pa., post office, has been moved to arbitration. Samuel Krimsly was selected to serve as impartial arbitrator. Hearing was held on December 6, 1977, in Lancaster, Pa., at which time testimony was heard and exhibits presented. The Postal Service only has filed a brief, and following receipt of same on December 31, 1977, the Arbitrator closed the record. STATEMENT OF FACTS On February 9, 1977, the grievant, a part-time letter carrier on a flexible schedule out of the Shrewsbury, Pa., post office, was informed that he was suspended for 30 days, then to be terminated. The reasons stated for discharge were two-fold : that Walker had on August 3, 1976, threatened and otherwise verbally abused the Shrewsbury postmaster, and that on October 7, 1976, Walker had caused "numerous problems" and damage to the property of his daughter's in-laws.thnder the provisions of Article XV of 1 Two additional charges were made in the letter of suspension and discharge, but at the hearing they were dropped.

3 the collective bargaining Agreement, the grievance was properly filed and appealed step-by-step to arbitration. In regard to the first cause for discharge, postmaster Allison testified that the grievant telephoned him and spoke in person with him on August 3, 1976, regarding being given more part-time work. Harsh words passed and Allison feared for his personal safety because Walker had cursed him and made a remark about "knocking his head in". The postmaster contacted postal inspector Hill, who was informed of the altercation. Hill testified that he went to Shrewsbury on August 10 and talked for six hours with the grievant. He further investigated the matter by interviewing other postal employees as well as a Mrs. Fry on October 12, 1976, who told him of the incident which is the second charge. The inspector stated that his investigation was completed on January 28, 1977, and information forwarded to the district head, the Lancaster, Pa., postmaster. In regard to the second cause for discharge, a Mrs. Fry testified that her son had married Walker's daughter and that the children lived next door to the Frys. A domestic disturbance at the children' :s home on October 7, 1976 caused both sets of in-laws to confront each other on the Frys' property, to which minor damage was done and Mrs. Fry stated that it had been caused by Walker.

4 In his defense, grievant testified that he had gotten angry at Allison on August 3 because the postmaster would not promise to give him more work. It was Walker's intention to leave his full-time factory job and have enough work from the post office to maintain himself. He denied that he had expressed a desire to injure Allison and had only talked in terms of "fighting for his rights". Grievant denied that he had caused damage to Frys' property, but did acknowledge the October 7 domestic dispute. The director of the Postal Service employee and labor relations testified that he caused grievant to be suspended based on Allison's and Hill's reports, and that likewise the director of customer services informed grievant of discharge. This action was under Article XVI of the Agreement, mandating just cause for discipline or discharge and allowing for an emergency suspension, as was used here, when it is feared that an employee may injure others, followed by discharge. POSITIONS OF THE PARTIES It is the position of the union, on behalf o grievant, that the Postal Service did not have just cause to discipline and discharge in this case. The Service waited too long -- from August 3, 1976 to February 9,

5 to assess discipline on the Allison incident. To invoke emergency suspension and discharge, because it was feared that Walker might injure Allison, some six months after their differences, during which time Walker did not injure Allison, is improper. Further, it is argued that to include the Fry incident as cause for emergency suspension and discharge is wrong because it was of a personal nature and did not affect grievant's ability to do his job. The union asks reinstatement of grievant, an award of back pay, and expungement of the disciplinary action from his record. It is the position of the Postal Service that threats by grievant upon the physical well-being of his postmaster were cause to suspend and discharge. The Service suggests that grievant's testimony is not believable when he denies that he caused a "siege" of the Fryy residence, and that his actions on that October day so contravene the code of conduct of a postal employee as to be additional cause to discipline. The arbitrator is urged to deny the grievance, taking singly or together the two charges. QUESTION grievant? Is there just cause to discipline and discharge

6 DISCUSSION It is a fundamental principle in law as well as contract arbitration that a party possessed of certain rights must not let them lie fallow, but must act upon them promptly. The Agreement in this case gives management the right to discipline and/or discharge for just cause. The Postal Service took the position that grievant had on August 3, 1976, committed an offense which might be the subject of discipline. An investigation was begun which was not terminated until January 28, 1977, by which time a second act of possible discipline had been added to the investigation. In the intervening six months, grievant continued on the job. While an employee has no need or right to expect to be kept advised of an investigation, unless a contract holds otherwise, he does have the right to expect that the result of the investigation or the charge under consideration will be promptly communicated. If he has committed an offense worthy of punishment by his employer he must know it promptly after the wrongdoing. This is part of due process or fairness in the employment setting -- an unsettled charge must not be kept pending unduly long. Insofar as the action of August 3, 1976, is grounds for discipline, the arbitrator concludes that for the Postal Service to have waited six

7 months to finalize the offense into discipline is unreasonable and contrary to the degree of promptness which is an employee's due. The discipline given on February 9, 1977, was an emergency suspension, based on a fear that grievant would injure another person : If there ever existed such a fear in the facts of this case, it was on or immediately after the Walker-Allison altercation on August 3, To suggest that the emergency continued for six months, about which there is no testimony that the parties had any other unpleasantness, so as to be grounds for an emergency suspension on February 9, 1977, is beyond belief. The arbitrator concludes that no emergency presented itself on or before February 9, 1977, to give the Postal Service cause to invoke the Article XVI, Section 4 procedures against grievant. Thus the Arbitrator holds that the Postal Service did not have just cause based on this charge to lay the February 9 discipline and discharge The Postal Service alleges a second reason for its action -- the incident of October 7. It argues that Article XIX of the Agreement incorporates codes of conduct contained in manuals and handbooks, and one such item of conduct is that employees are not to engage in conduct which will prejudice the Postal Service. The testimony is totally silent as to how the affairs of

8 grievant on October 7, regardless of whether grievant was at fault or not, disserved the Postal Service. Thus the Arbitrator has no way of knowing whether Walker's involvement with the Frys on October 7 caused him to be unable to perform his function of letter carrier part time, or caused the Shrewsbury post office to be able inadequately to function. The Arbitrator may not presume something which is not presented as part of the testified facts. Furthermore, Article XIX does not blanketly incorporate all "handbooks, manuals and published regulations", but only such parts "that directly, relate to wages, hours or working conditions". The testimony is silent as to how the facts of the October 7 occurrence, if they were contrary to a code of conduct, relate to working conditions on the job. It is the view of the Arbitrator, supported by the language of Article XIX, that only aspects of conduct which relate to working conditions are to be considered part of the Agreement. What an employee does on his own time is his own business unless and until such conduct affects his work or the functioning of the employer. Furthermore, the Arbitrator finds a due process violation when investigator Hill failed to confront Walker, during his investigation, with the October 7 incident. Hill testified that he and Walker talked about the August 3 problem, but not the second matter. If an employee's con-

9 duct is to be investigated, and the findings of the investigation are to serve as the basis for discipline and/or discharge, and the employee is confronted with the facts of part of the charges against him, it is only basic fairness that he be allowed to defend himself against all charges at the investigation stage. The Postal Service did not have just cause to discipline and discharge grievant on February 9, 1977, for either the August 3 or October 7 incident, singly. Nor can the reasons together establish just cause. AWARD The grievance is sustained. The Postal Service is ordered to reinstate Walker to his position, with back pay based on his part-time status, less any earnings gained as a result of his replacing the lost part-time work. The monetary award is not to be reduced by wages earned from grievant's full-time factory job, the schedule for which has been stated to be separate from Postal Service employment. Jurisdiction will be retained in the event the parties cannot agree on the monetary award. The Agreement does not mandate, and the Arbitrator sees no necessity for, the expungement from grievant's file the record of this action. Respectfully submitted, _ c Samuel Krimsly, i Arbitrator January 18, 1978