ARBITRATION AWARD

In the Matter of

UNITED STATESPOSTAL SERVICE I

I WIN-5F-D 25332and I W7N-5F-D 25129

NATIONAL ASSOCIATIONOF LETTER CARRIERS

APPEARANCESiN

FEB - 7 1991

For the Service PAWL C. LiAVLSNATIONAL BUSINESS AGENT

Lerene Wiley Don Pusch Sonny SalazarBob Church Bob Brackins Juan LunaRon Gaudiosi

For the Union

L A Sant Michael Crowley William B CameronKen Bielek T Spear

ARBITRATOR EDWIN R RENDER

By the terms of the contract between the UNITED STATES

POSTAL SERVICE, hereinafter referred to as "the Service", and the

NATIONAL ASSOCIATION OF LETTER CARRIERS, hereinafter

referred to as "the Union", there is provided a grievance procedure

including arbitration . Accordingly the parties selected

Edwin R Render , Seattle Washington as impartial arbitrator. A

hearing was held in Phoenix Arizona on January 4, 1991. Equal

opportunity was given the parties for the preparation and

presentation of evidence, examination, and cross-examination of

witnesses, and oral argument .

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THE ISSUE

The issue in this case is whether the grievant was properly

placed in an emergency off duty status . on June 20, 1990, pursuant to

article 16 .7 of the contract and whether the grievant was suspended

for just cause for 30 days on August 13, 1990 .

CONTRACT PROVISIONS

Article 16 , section 1 of the contract provides :

In is the administration of this Article, a basic principleshall be that discipline should be corrective in nature,rather than punitive. No employee may be disciplined ordischarged except for just cause such as, but not limitedto, insubordination, pilferage, intoxication (drugs oralcohol), incompetence, failure to perform work asrequested, violation of the terms of this Agreement, orfailure to observe safety rules and regulations . Any suchdiscipline or discharge shall be subject to thegrievance-arbitration procedure provided for in thisAgreement, which could result in reinstatement andrestitution, including back pay .

Article 16, section 7 of the contract provides :

Any employee may be immediately placed on an off-dutystatus (without pay) by the Employer, but remain on therolls where the allegation involves intoxication (use ofdrugs or alcohol), pilferage, or failure to observe safetyrules and regulations, or in cases where retaining theemployee on duty may result in damage to U .S . PostalService property, loss of mail or funds, or where theemployee may be injurious to self or others . The employeeshall remain on the rolls (non-pay status) until dispositionof the case has been had . If it is proposed to suspendsuch an employee for more than thirty (30) days ordischarge the employee, the emergency action taken underthis Section may be made the subject of a separategrievance .

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THE FACTS

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The grievant is a letter carrier . Some time prior to

February 1988 he was assigned a long life vehicle . This dispute

concerns allegations that the grievant knowingly violated vehicular

safety regulations by repeatedly and intentionally putting the gear

selector in his service vehicle into the park position before coming to

a complete stop thereby causing damage to the parking pawl. The

Service also charged the grievant with willfully damaging the parking

brake set screw which locks the brake adjustment into place .

During the period between February 6, 1988 and

December 29, 1989, the Service performed general parking brake

maintenance on the grievant's vehicle 24 times ; 14 of these repairs

involved replacement of the parking brake set screw . After the

grievant complained on December 30, 1989 that his vehicle would not

remain in park after engagement of the parking brake, the Service

discovered that the parking pawl was broken . The pawl and gear

shift lever were replaced and thereafter the manager of vehicle

programs, Bob Brackins, consulted postal headquarters about the

pawl's safety history nationwide . Upon learning that there had been

no similar pawl failures reported elsewhere in the nation,

Mr . Brackins determined that the grievant's driving must be the

cause of the problem . Accordingly, Mr . Brackins directed

Bob Church, vehicle operations analyst, to monitor the grievant's

driving .

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On May 1, 1990, Mr . Church surreptitiously followed the

grievant and noted that his vehicle would often rock back and forth

before coming to a complete stop . Mr . Church concluded that the

grievant was placing his gear selector into park before fully coming

to a halt . Mr . Church immediately talked to the grievant and told .

him to stop completely before shifting into park . One week later, the

grievant's immediate supervisor,. Ron Gaudiosi, also voiced these

concerns . On May 30, 1990 the parking pawl and a set screw were

again replaced in the grievant's vehicle . The Service decided at this

time that the grievant would be the only Service employee allowed to

drive the vehicle . On June 15, 1990 Bob Brackins saw the grievant

driving on his route and observed his vehicle come to an abrupt halt

and rocked back and forth . After learning of this incident,

Ron Gaudiosi, placed the grievant in an emergency off duty status on

June 20, 1990 believing that the grievant's continued conduct was a

threat to Postal Service property .

On June 25, 1990 a fact finding procedure was conducted with

supervisor Juan Luna, superintendent Ron Gaudiosi, union steward

Barboza, and the grievant present . Subsequently, on July 11, 1990

the grievant was issued a notice which proposed his removal from

Postal Service based on the allegations that he abused Postal Service

property. Gary L . Penn, the director of city operations, Phoenix

division, reviewed the removal and found that the grievant willfully

abused his Postal Service vehicle during the course of his duties as a

letter carrier . However, in deference to the grievant's exemplary

disciplinary record prior to the conduct at issue, Mr . Penn

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unilaterally modified the proposed removal to a 30 calendar day

suspension . Upon the grievant's return to duty on

September 23, 1990, he was to undergo remedial driver training .

Thereafter, the grievant requested arbitration on both his emergency

off duty placement and the decision of Mr . Penn .

POSITIONS OF THE PARTIES

Position of the Service

First, the Service argues that its placement of the grievant on

emergency off duty status without pay was proper under article 16 .7

of the agreement which allows such action when the Service believes

that retaining an employee on active service may result in damage to

U . S . Postal Service property . To sustain its action under

article 16.7 , the Postal Service notes that it must only present

evidence that established it had a reasonable basis to believe that

retention of the employee on active duty would result in damage to or

destruction of Postal Service property, not that level of evidence

which would be required to sustain discharge a discharge . A

reasonable basis existed in reports to supervisor Gaudiosi that the

grievant had been observed willfully abusing his Postal Service

vehicle and that this abuse resulted in damage which necessitated

mechanical repairs . Since there was no compelling reason to doubt

these reports, the Postal Service argues that reliance on them and

removing the grievant to off duty status was entirely reasonable .

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Next, the Postal Service contends that the 30 day suspension

was for just cause . The Postal Service alleges that the grievant

violated section 661 .52 of the E&LRM and section 723 .111 of the Postal

Operations Manual which positively charge employees with the proper

care of fleet vehicles issued to them . The grievant was aware of

correct driving procedures both through extensive training and face

to face discussions with Messrs Gaudiosi and Church . That the

grievant knowingly violated these instructions are, according to the

Postal Service, conclusively established by several facts .

The Postal Service argues that the extraordinary maintenance

history of the grievant's vehicle circumstantially proves that he drove

abusively . Twenty-four general parking brake repairs over a

28 month period is far and above what the Postal Service considers

normal in light of their experience with the average wear and tear of

vehicles of this type .

The Postal Service notes that the parking pawl failure is

particularly convincing evidence that the grievant willfully abused his

vehicle . The Postal Service contends that its expert testimony proves

that only two events will cause a parking pawl to break . Either the

vehicle must be struck by another vehicle while the gear selector is

in park, or the gear selector is placed in park while the vehicle is

moving . In either instance, the cause of the break is the great

amount of stress on the pawl caused by the vehicle's movement .

Since the grievant does not contend that he was struck by another

vehicle while his vehicle was in park, the Postal Service says that the

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only rational conclusion is that the grievant was shifting the gear

selector into park before coming to a complete halt . Further, the

observations of Messrs Brackins and Church that they saw the

grievant's vehicle rock back and forth before stopping is supportive

evidence of this theory .

Additionally, the Postal Service notes that no other vehicle in

the nation has experienced a similar problem with the parking bi

generally or the parking pawl specifically . If the problem were to _ .

in the mechanical workings of the grievant ' s vehicle , and not with

grievant himself, the Postal Service believes that it would surely 1 -

arisen at other locations .

Finally, a Postal Service argues that that the Union's attac!r

the grievant's removal from active duty status to off duty state :-

procedural grounds is without merit. According to the

Service, the grievant was clearly given notice of the

supporting the Service's reasons for placing him in off duty stc . . .

the letter notifying him of the action . Further, the grieva

provided all hearings required by the national agr .

Accordingly, for the reasons outlined above, the Postal Servic ;

that the grievances be denied .

Position of the Union

The Union first attacks the grievant' s removal from active

to emergency off duty status on procedural grounds . The

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contends that the grievant was not given a specific reason for being

placed off duty. The Union states that NALC vice president

lien Bieler asked supervisor Ron Gaudiosi on June 20, 1990 for

specific reasons underlying the grievant's placement in off duty

status and was told by Mr . Gaudiosi that he did not know of the

specific reasons . The Union contends that this lack of notice denies

the grievant of due process and is violative of article 16 of the

national agreement . Secondly, the Union argues that there was no

just cause for the removal to off duty status since the grievant did

nothing wrong . The Union also challenges the grievant's 30 day

suspension on the latter grounds .

The Union argues that the Postal Service is actually charging

the grievant with sabotage and therefore must prove the grievant's

misconduct beyond a reasonable doubt . Since the Postal Service's

evidence is circumstantial, the Union concludes that the Postal Service

failed to meet this type of burden of proof and the grievance must

therefore be sustained .

The Union further argues that even if the grievant was driving

the vehicle in a careless manner and thereby presented a threat to

the continued maintenance of the Postal truck, the Postal Service still

could have taken other corrective action short of placing the grievant

off duty without pay . According to the Union, other jobs were

available at the grievant's station which he could have formed without

driving a vehicle and the Postal Service should have opted for this

less drastic measure .

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The Union argues that the "covert" observations made by

Messrs Church and Brackins are inconclusive proof that the grievant

shifted his vehicle into park before coming to a complete stop . First,

neither Mr . Church nor Mr . Brackins actually witnessed the gear

lever being placed into park before the vehicle halted . Next, the

Union contends that Mr . Church's statement said " appears to put the

transmission into park" and Mr . Brackins' statement that the rocking

motion of the vehicle was " characteristic of placing the transmission in

park" (emphasis added) are indicative of management's uncertainty of

what actually transpired on the dates these observations were made .

The Union's explanation of Mr . Church's observation is that the dirt

on the road on Dahlia Street caused the brakes on the grievant's

vehicle to lock which caused the rocking motion before it came to a

stop .

The Union denies that Mr . Church counseled the grievant

immediately after the incident on Dahlia Street . Rather, the Union

contends that the grievant was not given an opportunity to give his

side of the story until one week later which is contrary to established

procedure . The Union believes that the grievant's infraction must

not have been as serious as the Postal Service alleges if the Postal

Service was willing to wait a week before taking corrective action .

Mr . Brackins, according to the Union, also failed to counsel properly

the grievant at the scene of the alleged accident on June 16, 1990 .

Overall, the Union feels that the Postal Service failed to keep the

grievant and the Union properly informed about their actions

underlying the removal and improperly delayed removing the grievant

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until July 11, 1990 even though the Postal Service's investigation was

completed on June 29 .

The Union argues that the physical evidence of the grievant's

infraction is not credible . First, the dates cited by management in

its notice of removal are inconsistent with the dates appearing on the

repair records . Next, the Union complains that it did not have the

opportunity to inspect the broken set screws and pawls in order to

verify the Postal Service's allegations .

Finally, the Union states that the grievant was not the only user

of the Postal vehicle in question and that therefore the grievant

cannot be held solely accountable for its malfunction . The Union is

not certain why the vehicle is constantly in the shop for repairs but

denies that the company has met its burden of proof sufficiently to

sustain its charges that the grievant is the responsible party .

Because of the above arguments, the Union asks that both grievances

be sustained, that the 30 day suspension and the removal to

emergency off duty status be rescinded, and that the grievant be

made whole for all lost wages and benefits plus interest at the highest

billing rate .

DISCUSSION

Based on the provisions of the contract, the testimony given at

the hearing, and the arguments of the representatives of the parties,

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the Arbitrator has concluded that the Postal Service erred in placing

the grievant on emergency off duty status on June 20, 1990 and that

the grievance addressed to this Postal Service action is therefore

sustained . The Arbitrator further finds that the Postal Service had

just cause to suspend the grievant for 30 days as a result of his

misuse of a Postal Service vehicle . The grievance protesting that

action must be denied .

Under article 16 section 7 of the contract the Postal Service may

place an employee on emergency off duty status when retention of the

employee on active duty "may result in damage to U .S . Postal Service

property ." This provision has been exercised in part when the

employee is generally careless or circumstances indicate that the

employee is undertaken to willfully and maliciously destroy government

property . When general carelessness or malicious intent is involved,

is it quite reasonable to assume that the offending employee will pose

a risk regardless of the type of job to which he is assigned .

However, these circumstances are not present in this case . As

discussed below, the Postal Service has proved that the grievant

drove his Service vehicle carelessly and contrary to Postal Service

regulations . However, this misconduct is very specific in nature as

evidenced by the fact that the damage approximately caused by the

grievant to the Postal vehicle . No credible evidence was presented

which establishes that the grievant was otherwise careless or reckless .

or that he performed his other duties in a manner which was likely to

damage other Postal Service property . This, combined with the fact

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that the grievant had a very favorable 10 year work history indicates

to the Arbitrator that the Postal Service could have placed the

grievant in a non driving position where his proven proficiency could

have been utilized and his suspected deficiencies neutralized pending

a full and fair investigation of his alleged misconduct .

The Arbitrator believes the Postal Service proved that the

grievant willfully shifted the gear shift lever in his Postal Service

vehicle into park before coming to a complete halt, contrary to

management's direct warnings, and that this conduct caused damage

to the parking pawl on two occasions . The Union failed to meet the

testimony of Mr Church that he observed the vehicle rock back and

forth prior to each stop on May 1, 1990 . Though the Union disputes

that Mr. Church counseled the grievant about this conduct

immediately after the incidents, it concedes that Mr . Gaudiosi

discussed the issue with the grievant one week later . Mr . Brackins'

observations of June 15 corroborate those of Mr . Church' and the

Arbitrator can only conclude that the grievant chose to disregard the

are cautionary instructions given by Mr . Gaudiosi on May 8 .

The nature of the damage to the vehicle is particularly strong

circumstantial evidence that the grievant's conduct was the sole cause

of the broken pawls . The Arbitrator finds it rather incredible that a

reliable part of the long life vehicle such as the parking pawl would

break in such a short period of time unless, as the Postal Service

contends, the grievant was prematurely shifting the gear shift lever

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into park . The absence of any evidence that the grievant's truck

was hit while parked by another vehicle is a strong indication that

the damage occurred because of the grievant's improper driving . The

fact that no other Postal vehicles in the country were experiencing

similar problems dispels the possibility that there was an inherent

defect in the parking pawls . The Arbitrator doubts that this vehicle

was the only "lemon" in the country . Also, there was no evidence

that other Postal Service employees drove the grievant's vehicle

during the key period at issue, and therefore, the blame cannot be

placed on third parties .

Finally, the Union's contention that the proceedings leading up

to the grievant's suspension were procedurally defective is

unsubstantiated by the evidence . In conclusion, the Arbitrator finds

that the Postal Service improperly placed the grievant on emergency

off duty status on June 20, 1990 but properly suspended the grievant

for 30 days for willful abuse of Postal Service property .

AWARD

The grievance addressed to the emergency placement off duty is

sustained and the grievance addressed to the grievant's 30 day

suspension is denied .

31 January 1991

EDWIN R RENDERArbitrator

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